By Dillon, J.P.; Miller, Duffy and Lasalle, JJ.PEOPLE, etc., ap, v. Rosean Hargrove, res — (Index No. 10150/91)APPEAL by the People, as limited by their brief, from so much of an order of the Supreme Court (ShawnDya L. Simpson, J.), dated April 14, 2014, and entered in Kings County, as, after a hearing, granted that branch of the defendant’s motion which was pursuant to CPL 440.10(1)(g) to vacate a judgment of the same court (Gloria Goldstein, J.) rendered December 14, 1992, convicting him of murder in the second degree and assault in the first degree, upon a jury verdict, and imposing sentence, and for a new trial, on the ground of newly discovered evidence.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Diane R. Eisner of counsel), for appellant.Edelstein & Grossman, New York, NY (Jonathan I. Edelstein, Pierre Sussman, and Robert M. Grossman of counsel), for respondent.MILLER, J.The defendant in this case has remained behind bars for more than two decades for a crime that he has consistently maintained he did not commit. The Supreme Court, on the basis of newly discovered evidence, vacated the defendant’s judgment of conviction and ordered a new trial.The People have appealed from the Supreme Court’s order. While the issues implicated by this case represent some of the most pressing and contentious matters facing the criminal justice system today, the People have chosen to focus their appeal on an array of procedural and evidentiary arguments, largely ignoring the major underlying issues at stake.But these rules of procedure and evidence are not to be invoked for their own sake. They do not exist solely as an arsenal to be ranged against the accused or the imprisoned. They exist so that truth may emerge from their considered application. Indeed, it requires no earth-shattering pronouncement to state simply what centuries of jurisprudence make clear: that justice is the whole of the law.And although our institutions of law enforcement are the bedrock of our system of justice, they do not deserve our blind faith or allegiance. When we succumb to that temptation we abdicate our duty to ensure that justice is done in every case and under every circumstance. Society’s allegiance and faith must be earned through our labors and consistently reaffirmed by our decisions. Recognition of our errors does not make our system weak, it makes it resilient. When we ignore our errors or seek to avoid confronting them, we imperil the very foundations of our legitimacy.In this case, the Supreme Court determined that evidence of prior police misconduct, if known to the court and the jury, would have created a probability of a more favorable verdict to the defendant. As such, the trial court acted appropriately when it vacated the conviction and ordered a new trial. For the gravest manner of injustice that we know is the imprisonment of a fellow human being for a crime that he or she did not commit.Through it all, we cannot say whether the defendant is guilty or whether justice has ultimately been done in this case. But that is precisely why the defendant is entitled to a new trial. Accordingly, we affirm the order insofar as appealed from.Factual and_Procedural Background1.Events Leading_to the_Defendant’s ArrestIn the early morning hours of August 13, 1991, Rolando Neischer and Robert Crosson sat in a car in front of the Kingsborough housing projects in Brooklyn, New York. The two men both lived in the housing project and had known each other for their entire lives. They both worked as correction officers at Rikers Island.Neischer and Crosson sat in the car and talked for about an hour. Neischer sat in the driver’s seat and Crosson was seated next to him in the front passenger seat. The windows of the car were open.Sometime around 4:00 a.m., while Neischer and Crosson were sitting and talking, two people approached the car on bicycles. One of the individuals was on the driver’s side of the car and the other was on the passenger’s side. As soon as the individuals came up to the car they displayed guns and told Neischer and Crosson to “get the fuck out the car.”Neischer opened the driver’s side door of the car and as soon as he got out, Crosson saw the individual on the driver’s side fire a gun. While the shots were being fired, the individual on the passenger side told Crosson to “get the fuck out of the car.” The individual on the passenger side pointed a gun in the car and Crosson “put [his] hands up to [his] face because the gun was pointed right at [his] face.” Then the gun “went off” and Crosson was hit in the hand.Crosson thought he had been shot in the head because blood was rushing down his head. He got out of the car and kneeled down beside it. He put both of his hands over his head and assumed a somewhat crouched position. He later testified that he looked up at one of the perpetrators. When the two perpetrators got into the car, Crosson ran towards the housing project. After the car drove off, Crosson ran back to the street and looked for Neischer, but he “didn’t see him.” Crosson then ran to get help.Crosson came upon a police car as soon as he went around the corner. Crosson ran to the police car and identified himself as a correction officer. Crosson returned to the scene of the crime with the police officers. They found Neischer on the ground “[a]bout a half-block” down the street, reloading the .38 caliber handgun that he had been carrying with him that night. Six .38 caliber spent shell casings were recovered at the scene.Neischer was transported from the scene in an ambulance. Crosson accompanied him. Neischer, who sustained a total of five gunshot wounds, later died as a result of those injuries. Crosson was treated for a gunshot wound to his hand.Police officers responding to the scene observed two bicycles lying on the ground on opposite sides of the street at the location of the shooting. Fingerprint evidence was recovered from at least one of the bicycles. Blood samples were also recovered from the bicycles. The blood evidence was submitted to the police laboratory later on the date of the shooting for a comparison with Neischer’s blood.Less than 24 hours after the shooting, an unidentified individual at the police precinct received a telephone call from an anonymous caller. After learning of the telephone call, Louis Scarcella, then a detective with the New York City Police Department, responded to 230 Lott Avenue in Brooklyn with his partner, Detective Steven Chmil, and another detective named John Barba. The detectives proceeded to the second floor of the building where they arrested the defendant in the hallway.After the defendant was handcuffed, the defendant was informed that he was being charged with attempted murder. The defendant was 17 years old at the time.The defendant was subsequently taken to the police precinct where he was placed in a lineup. Crosson viewed the lineup and identified the defendant as one of the perpetrators. Crosson had previously selected the defendant’s photograph from a group of photographs that were shown to him by Detective Chmil.Police recovered Neischer’s vehicle at a location in Brooklyn the day after the shooting on August 14, 1991. The car had a flat tire and there was blood on the driver’s side door frame. A bullet was recovered from the tire. Blood was also observed inside the car on the seats. Fingerprints and palm prints were lifted by police investigators from the stolen vehicle. The “numerous blood samples” recovered from the vehicle were sent to “be processed further at the lab.”2.The Pretrial_HearingThe defendant and a 14 year old named John Bunn (hereinafter the codefendant) were charged with two counts of murder in the second degree, attempted murder in the second degree, robbery in the first degree, two counts of assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree.The defendant and the codefendant moved to suppress Crosson’s identification and were granted a hearing pursuant to United States v. Wade (388 US 218) and Payton v. New York (445 US 573). The suppression hearing took place on September 9, 1992, before the Honorable Gloria Goldstein, a Justice of the Supreme Court, Kings County.1Prior to the hearing, the prosecutor noted that there were “a lot of latent palm prints” that were recovered from the stolen vehicle. He requested that the defendant and the codefendant submit their palm prints for comparison. The defendant voluntarily agreed to provide “whatever” prints the prosecutor requested. The codefendant also agreed to submit his palm prints, and additionally volunteered to undergo “a polygraph.”The People presented the testimony of Detectives Barba, Chmil, and Scarcella in order to sustain their burden of demonstrating that the police did not use any impermissible procedures in conducting the pretrial identifications, that the series of photographs and the composition of the lineups were not unduly suggestive, and that the defendant’s arrest did not violate Payton.Detective Chmil testified that Detective Barba and his partner, Detective Scarcella, were “the assigned detective[s]” in charge of investigating the shooting. Detective Chmil testified that Crosson went to the police precinct to look at photographs on August 13, 1991—the same day as the shooting. Detective Chmil put together a series of six photographs to show Crosson. When he was asked how he chose the photographs that he showed to Crosson, Detective Chmil testified: “ I just opened the drawer which contained about 5, 6 hundred color photographs and just randomly picked out 6 photos.” Detective Chmil further testified that he intentionally put the defendant’s photograph in the middle.Detective Chmil testified that he spoke to Crosson before he assembled the photographs, but that Crosson was not present when the six photographs were selected. Detective Scarcella was present with Detective Chmil in the detective squad office when the photographic array was shown to Crosson. No other police officers were present at that time.Detective Chmil handed Crosson the six color photographs in “looseleaf” form, and asked Crosson if he recognized anyone. Crosson picked out the photograph of the defendant and said that he was “’90 percent sure’” that he was one of the perpetrators.Detective Scarcella testified that at about 12:30 a.m. on August 14, 1991, he responded to 230 Lott Avenue in Brooklyn with his partner, Detective Chmil, and Detective Barba. The detectives responded to that address after an unidentified individual at the police precinct “received a phone call” from an anonymous caller.Detective Scarcella testified at the hearing that they proceeded to the second floor of the building although the anonymous caller had not specified the apartment in which the defendant lived. When the detectives got out of the elevator, they observed the defendant coming out of apartment 2C. The defendant was arrested in the hallway. Detective Scarcella gave the defendant his Miranda warnings in the bedroom of the apartment (see Miranda v. Arizona, 384 US 436).When asked on cross-examination why they responded to the second floor of the three-floor building, Detective Scarcella testified, “We got lucky.” When asked again, “You just picked the second floor?”, he replied, “We were in the process of trying to ascertain if there was a janitor or some type of caretaker or custodian.”Detective Barba testified that a lineup identification was conducted on August 14, 1991. Crosson arrived at the police precinct sometime before the lineup was conducted. Detective Barba did not know what time Crosson arrived. Detective Barba testified that Crosson was “[w]ith other detectives” while he was waiting at the police precinct.Detective Barba testified that Crosson viewed the lineup at about 11:40 a.m. The lineup was “supervised by Lieutenant Tartaglia… Detective Scarcella, [and] Detective Chmil.” The lineup consisted of six individuals. Crosson identified the defendant, stating: “Number 5, he’s the man who had the gun. He’s the man who shot me. He’s a criminal.”At the conclusion of the People’s presentation, defense counsel moved, citing People v. Chipp (75 NY2d 327), for an independent source hearing. The Supreme Court summarily denied defense counsel’s motion before the People took a position.In a written order dated September 21, 1992, the Supreme Court (Gloria Goldstein, J.) denied the defendant’s motion to suppress Crosson’s identification of the defendant. The court credited the police officers’ testimony and concluded that there were “no improprieties whatsoever.”3.The TrialThe defendant and the codefendant were jointly prosecuted at a single trial. The initial jury instructions, the prosecutor’s opening statement, the People’s case, and the defense cases were all presented over the course of a single day.In his opening statement to the jury, the prosecutor stated that “this case will not be a long one” since there was only “one eye witness.” The prosecutor also stated that “[t]he police in this case had very little to do with it… other than conducting a line-up.”At trial, the People presented Crosson’s testimony in order to establish the identities of the shooters.Crosson made an in-court identification of the defendant as the individual who shot him. Crosson also identified the codefendant as the individual who shot Neischer. Crosson testified that he had not been frightened during the incident.Crosson testified that he went to the police precinct to view two lineups after the shooting. In the first lineup he “picked out Rosean Hargrove”—the defendant. In the second lineup he picked out “John Bunn”—the codefendant.On cross-examination, Crosson was asked whether he told the first two police officers he approached after the shooting that one perpetrator was a “male black, 16 to 20 years of age.” He was also asked whether he told a detective at the hospital that one of the perpetrators was “a male black in his twenties, five foot nine or ten, light skinned.” Crosson answered that he “gave a description” which was “written down” but that he did not “remember the exact words” he used to describe the perpetrators.Defense counsel later asked Crosson whether he told an investigator from the Department of Correction that “the man on the driver’s side was a male black in his twenties, slim, light skinned, five foot nine to five foot ten.” Crosson answered: “I can’t remember exactly what words or description that I gave but, if you have it written down in one of my statements, of course, I may have stated it.”Crosson was also asked whether he described the man on the passenger side as “a male black about 20, also light skinned.” Crosson answered: “If that’s what you have written down for my statement, yes, that’s what I said.”Crosson testified that he had grown up in the Kingsborough Housing Project. Crosson had lived in two different buildings within the project at some point with his mother and siblings. Crosson indicated that he was “known everywhere [he] walk[ed]” and that he would “ become friends with people.”Defense counsel asked Crosson whether he knew the defendant “from the project” prior to identifying him as one of the perpetrators. Crosson denied knowing the defendant: “I did not know him, period, ever in my life.” When defense counsel asked whether Crosson knew the defendant’s mother, Crosson initially responded “Listen, you asked me —.” After the court intervened and directed Crosson to “only answer the question,” Crosson testified that he knew the defendant’s mother and the defendant’s sister.The People next called Detective Barba to testify on their direct case. He reiterated that Crosson identified the defendant and the codefendant from the lineups that he conducted at the police precinct. Detective Barba also made his own in-court identifications of both the defendant and the codefendant at the trial. He denied advising Crosson which number he should pick in the lineups.On cross-examination, Detective Barba testified that police found blood on the inside and outside of Neischer’s car when it was recovered by police. The car was removed to the 77th Precinct, and fingerprints and palm prints were recovered from the hood of the car. Detective Barba did not know how many prints were lifted from the car because he did not have “the exact information regarding that in front of [him].”Detective Barba testified that the fingerprints and palm prints that were recovered from Neischer’s vehicle were compared to the defendant’s and the codefendant’s prints and the results were negative, meaning that they “didn’t belong to the defendants.”The fingerprints and palm prints also did not belong to Neischer, the owner of the car. Detective Barba testified that the fingerprints and palm prints were not compared to Crosson’s prints because he did not make a request for them.Detective Barba indicated that fingerprints were lifted from the two bicycles that were recovered from the scene of the crime. Detective Barba testified that “[t]he fingerprints that were lifted from the bicycles didn’t belong to the defendants.”Detective Barba stated that the police also recovered blood from the bicycles. He confirmed that, although a request was submitted for a serology comparison of the blood recovered from the bicycles, he had not received the results of the examination.Detective Barba testified that on the night of the shooting, he and other detectives canvassed area hospitals in order to determine if anyone was being treated for gunshot wounds. The search came back negative. When the defendant and the codefendant were brought into custody, they did not have any gunshot wounds.Finally, Detective Barba testified that a description of the perpetrators was broadcast over the police communications system. The description of one of the perpetrators was “[m]ale black, twenties… [l]ight complexion.” The other perpetrator was described as “male black, twenties.”At the conclusion of Detective Barba’s testimony, the People rested. Defense counsel requested a stipulation from the People regarding the blood samples that were recovered by the police inside the stolen vehicle. Defense counsel stated that he had been “informed previously” that the blood samples did not match Neischer’s blood type.The prosecutor stated that he had no knowledge as to whether blood typing had been conducted. Indeed, he could not say “whether it was even human blood.” When the court asked the prosecutor if the blood samples were ever tested, the prosecutor stated that tests “might have been requested” but he did not have “any results, nor did the detective, nor does the file.”The court indicated that the defense was entitled to be told about any scientific tests that were done prior to trial. The court and defense counsel continued to ask the prosecutor whether any tests were carried out and the prosecutor continued to say that he did not know if they were or not.After additional colloquy, the court asked the prosecutor whether he “attempted to get the results.” The prosecutor responded: “I have everything that’s in the file.” The court said “[t]hat’s not an answer” and instructed the prosecutor: “The onus is upon you if there is a test to give it to them, and that was long ago and so, yes, make the calls and find out now, by all means if, in fact, there is one, one way or the other.”Defense counsel requested an adverse inference charge in the event that no test results were produced. Defense counsel’s application was summarily denied. The defendant and the codefendant rested. The matter was adjourned until the next day.The next day, before the jury entered the courtroom, the prosecutor stated that he had called a police chemist who looked up the file and told him that “there was material submitted” and that “there were just no tests done or conducted on the blood samples that had been recovered.” The prosecutor stated that the blood samples had been “sent from the laboratory [back] to the Property Clerk’s office.”After the jury entered, defense counsel gave a closing statement. In his summation, defense counsel argued that the physical evidence was inconsistent with Crosson’s account.Defense counsel also argued that the evidence showed that “the police were looking for a perpetrator who had been shot during this incident… they canvassed hospitals in the area [and] they canvassed the dispatch centers of the police department looking for some shooting victims.” Counsel continued: “Why would they do that? Because the blood found on the bicycles, the blood found inside the car… they didn’t believe it was Rolando Neischer’s blood. They believed one of these men were hit who fled the area.”Defense counsel stated that “the blood in the car is from whoever it was that killed Rolando Neischer and shot Robert Crosson.” He noted that the defendants did not have any marks on them.Defense counsel asked the jury to “look at the way the police handled this case.” He argued that important forensic evidence had not been tested or otherwise investigated. He noted that the fingerprints and palm prints that were recovered from the stolen vehicle did not match the defendant’s prints. He further noted that the prints that were recovered from the bicycles that were used by the perpetrators did not match the defendant’s prints. Defense counsel argued that Crosson was “neither credible nor reliable.” Defense counsel also argued that Crosson had “lied when he said he doesn’t know [the defendant]” since he knew the defendant’s mother and sister. Defense counsel contended that Crosson’s descriptions of the perpetrators did not “ fit these two [defendants] at all,” noting that the defendant, who was 17 years old at the time of the arrest, was “obviously not a male in his twenties” and was “certainly… not light-skinned, if you look at him.”In his summation, the prosecutor argued that “we know that” the blood in the car came from Neischer. The prosecutor also argued that since the defendants had not been wounded, there was no reason to test the blood in the car because it “couldn’t have been their blood.” He discounted the fingerprint evidence, telling the jury “you know how unreliable fingerprints are.”The prosecutor asserted that Crosson was face-to-face with the defendant and went to the precinct and identified the defendant after he “look[ed] at all kinds of pictures.” The prosecutor also described how Crosson identified the defendant at the lineup.After summations the court charged the jury. The court charged four counts: (1) murder in the second degree—intentional murder; (2) murder in the second degree—felony murder; (3) attempted murder in the second degree; and (4) assault in the first degree.After the court gave its instructions, the jury retired to deliberate. At 6:32 p.m. the jury was taken to dinner, after which it resumed deliberations. At 9:00 p.m., the jury requested explanations and clarifications on each of the four counts, which the court provided. The court then instructed the jury to continue its deliberations.At about 10:32 p.m., the defendant’s attorney stated that since it was “Tuesday night prior to Thanksgiving” he was requesting that the jury be instructed that they would not be held over the holiday so that they would not feel “unduly pressure[d].” The application was denied.At 11:05 p.m. that night, the jury indicated that it had reached a verdict, finding the defendant and the codefendant not guilty of murder in the second degree under count one, and not guilty of attempted murder in the second degree under count four. However, the jury found the defendant and the codefendant guilty of murder in the second degree under count two (felony murder), and assault in the first degree.4.The SentencePrior to sentencing, a presentence investigation report (hereinafter the PSI report) was prepared by the New York City Department of Probation. The PSI report stated that “[s]everal anonymous callers, contacted the police and implicated the defendants.” Detectives arranged a photographic array that included the defendant’s photograph. The PSI report stated that “Crosson identified [the defendant] as his shooter from the photos but admitted that he recognized him from the projects and would need to see him in person in order to be sure.”The PSI report reflected that the codefendant was incarcerated in a juvenile facility due to his age. The defendant—who was 18 years old at the time—was incarcerated at Riker’s Island where he was “in solitary confinement.” Both the defendant and the codefendant independently reported that they had been assaulted by correction officers during their confinement.The defendant and the codefendant were interviewed separately by the Department of Probation. Both repeatedly maintained their innocence. The defendant also stated that “those who told Crosson to blame [him] and [the codefendant], knew about their car theft history.” The defendant stated that he had lived in the Kingsborough Housing Project for his entire life, and that Crosson “knows his family” but he was “not sure” if Crosson knew him.The PSI report included statements made by a correction officer named Alvin Wilson, “a friend and co-worker of the deceased” who had identified Neischer’s body at the morgue. Wilson stated that “he got a telephone call soon after the offense from an inmate, who told him that the defendants were not the murderers.” Wilson further stated that he “hope[d] that the defendants [were] the correct murderers.”The PSI report indicated that the defendant had previously been arrested in Brooklyn in connection with “five separate robberies.” Those incidents all occurred more than one year prior to the instant offense, and were all “gunpoint robberies of personal property and vehicles… committed with accomplices.” These robberies occurred in the vicinity of the Kingsborough Housing Project. The PSI report prepared in connection with those charges reflected that the defendant had “admitted his guilt” in committing those crimes.The defendant and the codefendant were sentenced by the Supreme Court (Gloria Goldstein, J.), on December 14, 1992. The defendant’s attorney made an application for an adjournment so that he could make a written CPL 330.30 motion. The defendant’s attorney, who was employed by the Legal Aid Society, stated that four witnesses had come forward since the trial and he had not had a chance to speak with three of them since he had “been on trial incessantly since the verdict came in.”Defense counsel stated that he had provided the names of these witnesses to the District Attorney’s Office, but he had received word that the District Attorney would not speak to the individuals or otherwise take any action. The court interrupted defense counsel while he was describing the nature of this new evidence, stating that the motion for an adjournment was denied.The defendant’s attorney then requested a two-day adjournment so that he could prepare a “pre-sentence memorandum” which he “didn’t have time to prepare.” The court denied his request.The court sought to proceed with the sentencing. The defendant’s attorney asked for additional time so that he could finish reading his client’s PSI report. The court said it would sentence the codefendant while the defendant’s attorney finished reading the defendant’s PSI report.The codefendant was 15 years old at the time of sentencing. The prosecutor asked for the maximum permissible sentence, and requested that the sentences for the two crimes run consecutively. The codefendant’s attorney noted that the codefendant was 14 years old at the time of the crime, and asked the court “to be compassionate.”The codefendant was then given an opportunity to address the court. The codefendant stated:“This Court has convicted me for a crime that I did not commit. I don’t know why I am being punished for something I didn’t do. I just hope that me, Rosean Hargrove can receive a retrial early. I do feel sympathy for the victim’s family, but I did not hurt nor kill anyone.”The court sentenced the codefendant, as an adult, to an indeterminate term of 20 years to life imprisonment on the murder conviction. The court sentenced the codefendant to a concurrent indeterminate term of 2 to 6 years’ imprisonment on the assault conviction. The codefendant was later resentenced because his sentence was illegal.After the codefendant was remanded, the prosecutor addressed the defendant’s case, again urging the court to impose the maximum permissible sentences and to run them consecutively. The prosecutor stated that the defendant had “shown a distinct pattern” in that “he has in the past repeatedly been the gunman in armed car hijacks.”Defense counsel proceeded to address the court:“Your Honor, first of all I would note for the record that I believe, as I stated before, that this verdict is a miscarriage of justice. The wrong people have been convicted of this crime for a number of reasons, and I won’t go into all of them. The Court is aware of a number of reasons why I believe this to be so. It is very difficult for me to approach this, as it was during the trial. You can not be remorseful for that which you did not do. The fact that defendant has been involved in other carjackings has nothing to do with this case.”Defense counsel went on to ask the court for “leniency” given that the defendant was only 17 years old.The court proceeded to sentence the defendant to an indeterminate term of 25 years to life imprisonment on the murder conviction and an indeterminate term of 5 to 15 years’ imprisonment on the assault conviction. The court directed that the sentences run consecutively, and the defendant was remanded into the custody of the Department of Correction.5.The Direct_AppealThis Court affirmed the defendant’s judgment of conviction (see People v. Hargrove, 213 AD2d 492).6.The Defendant’s CPL_440.10_MotionBy notice dated March 20, 2014, the defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction and for a new trial.Defense counsel argued that “[a]t the heart of this motion lies the strong possibility that [the defendant] is actually innocent” and that the sole identification witness comprising the People’s case was tainted by the “corrupt investigative practices” of Detective Scarcella and his partner Detective Chmil. Defense counsel argued that the defendant had also discovered that “possible exculpatory evidence was destroyed in bad faith while the prosecution had a duty to preserve it pending [the defendant's] appeal.”a.Corrupt Police_PracticesDefense counsel asserted that Detective Scarcella and Detective Chmil had recently come under “intense scrutiny by the media, the courts and the Brooklyn District Attorney’s Office due to substantiated allegations of misconduct.” Counsel also asserted that the intense scrutiny occurred after it had come to light that Detective Scarcella and Detective Chmil “had engaged in a pattern of illegally suggesting identifications, manufacturing confessions and other accusatory testimony.” In support of his assertions, defense counsel attached to his motion several articles from the New York Times reporting on these allegations of misconduct. Also attached were various affidavits submitted in support of motions made in two unrelated criminal matters where prior convictions in which the same two detectives were involved were overturned.For instance, the 1991 conviction of a man named David Ranta for the murder of Rabbi Haskel Werzberger was based on an investigation by Detective Scarcella and Detective Chmil. However, that conviction was vacated in 2013 after it was determined “that a prosecution witness was coached by [Detectives Scarcella and Chmil] to identify Mr. Ranta as the shooter, other prosecution witnesses recanted their testimony, witnesses were given improper incentives in exchange for their testimony, and… police officers perjured themselves at trial and suppressed exculpatory evidence.”It had been discovered that “one of the witnesses who identified Mr. Ranta as the shooter, Menachem Lieberman,” had recently come forward to state that “immediately prior [to] entering the lineup room in August 1990, he was told by a detective to ‘pick the guy with the big nose.’” Lieberman’s “selection of Mr. Ranta at the lineup and his later identification of him as the shooter of Rabbi Werzberger, was based on this… suggestion rather than by any recognition of Mr. Ranta on the day of the crime.” The defendant’s attorney submitted an affidavit from Lieberman in support of the motion, in which Lieberman detailed how he had been prompted to identify Ranta at the lineup. In another witness affidavit provided to Deputy District Attorney John P. O’Mara in support of the CPL article 440 motion in the Ranta case, the witness recanted her statements implicating Ranta explaining that she lied to protect her then-boyfriend, who was also involved in the crime, to secure a better deal for him from the District Attorney.Defense counsel also cited the case of Derrick Hamilton in support of his CPL 440.10 motion. Hamilton was convicted of murder “based upon the trial testimony of the victim’s girlfriend, Jewel Smith” (People v. Hamilton, 115 AD3d 12, 15). Smith later recanted her testimony and “claimed that she testified falsely against the defendant because the police threatened her with criminal prosecution and the removal of her children from her custody” (id. at 16).In support of the instant motion, defense counsel attached a notarized letter from Smith dated September 7, 2007, to then-Governor Eliot Spitzer in which Smith detailed how she had been taken into custody and informed by Detective Scarcella that “if [she] wanted to leave the precinct and go home, [she] had to identify [Hamilton] as the person that committed the crime.” When she complied, she was released, just as Detective Scarcella had promised.In 2009 Hamilton moved pursuant to CPL 440.10 to vacate his conviction claiming, inter alia, that alibi evidence established his actual innocence after numerous witnesses came forward showing that he had been at a public function in Connecticut at the time of the murder (see People v. Hamilton, 115 AD3d at 17-18). In support of his motion Hamilton argued that the evidence produced against him, including Smith’s identification testimony, had been procured by fraudulent police practices (see id. at 12).Hamilton’s motion was denied by the Supreme Court (see id. at 19). However, this Court modified the Supreme Court’s order and remitted the case to that court for a hearing (see id. at 29). Hamilton’s conviction was subsequently vacated on January 9, 2015, by the Supreme Court, Kings County (Raymond Guzman, J.). The District Attorney’s Office did not oppose Hamilton’s motion to vacate his conviction.The defendant’s attorney argued that, in the wake of these and other revelations, the Kings County District Attorney had formed a “Conviction Integrity Unit” (hereinafter the CIU). Defense counsel alleged in his affirmation in support of the instant motion that the CIU had “opened investigations into approximately 50 homicide cases where Detective Scarcella and Detective Chmil directed the investigations that led to convictions.” Defense counsel further alleged that the defendant’s and the codefendant’s case was “still under investigation.”Defense counsel argued that “the recent revelations concerning Detective Scarcella and his partner Steven Chmil… have called into question the very integrity of their work.” The defendant’s attorney concluded that the new evidence showing a pattern of improper identification procedures engaged in by Detective Scarcella and Detective Chmil “would have resulted in suppression of Crosson’s identification of [the] defendant.” Moreover, the new evidence “would have resulted in a different verdict had the defendant been able to introduce the evidence at his pre-trial hearing or at his trial.”b.Destruction of EvidenceIn further support of the motion, defense counsel submitted the affidavit of Professor William E. Hellerstein, a former law professor who provided legal services to the codefendant between 2000 and 2002. Professor Hellerstein averred that 13 years ago, while investigating the matter, he was given access to the District Attorney’s files and recalled seeing a document entitled “Prosecutor’s Order Releasing the Exhibits.” The professor averred that it struck him as odd at the time because the appeal was still pending. Based on the Hellerstein affidavit, defense counsel argued that these “revelations constitute[d] a showing of destruction of evidence conducted in bad faith on the part of the prosecution and the police department” warranting reversal of the conviction. Defense counsel also argued that the prosecution’s actions violated the defendant’s constitutional right to due process of law.Defense counsel noted that, on the defendant’s direct appeal, he had argued that the trial court had erred in denying his application for “an adverse inference charge for missing evidence since the blood samples had not been tested.” The defendant had contended that if the blood had been compared to Neischer’s blood and the test came back negative, the test would have supported the defendant’s theory that one of the perpetrators had been shot by Neischer. Since neither the defendant nor the codefendant had been shot, such evidence would have been powerful evidence excluding them as the shooters.Defense counsel argued that despite the importance of the blood samples to the issue raised by the defendant on his direct appeal, the apparent release of this evidence “during the pendency of… [the defendant's] appeal” indicated “that the evidence was destroyed as a result of bad faith.”Defense counsel asked the court to view this issue “in the context” of the pattern of police misconduct that had been documented in connection with this motion. Counsel further argued that the blood samples were particularly important in this case given that identification was the critical issue to be decided.7.The People’s OppositionIn opposition, the People argued that the defendant’s CPL 440.10 motion to vacate the judgment of conviction should be summarily denied without a hearing.The People acknowledged that “[p]ursuant to a decision by the Kings County District Attorney to review all cases in which Detective Scarcella was involved, which review was voluntarily undertaken prior to the filing of the defendant’s motion, the instant case is one that is under review.” The People nevertheless contended that “the allegations that Detective Scarcella may have been involved in misconduct in other cases are excessively remote and have no bearing on defendant’s guilt.”Turning to the claim that the prosecution had intentionally destroyed blood evidence, the People argued that the case file still contained property vouchers for “two bicycles… a brown bag containing a shirt[,] blue jeans, white sneakers and boxer shorts[,] a tin can with a blood sample… and an item vouchered as ‘five blood samples.’” The blood sample in the “tin can” had been “removed from [a] bicycle used in [the] shooting.”The People contended that there was no evidence that the blood evidence had been destroyed. The People argued that “[t]here would be no circumstance… where an assistant district attorney would authorize the release of vouchered blood samples.”8.The Defendant’s ReplyIn reply, defense counsel argued that the People appeared to be acknowledging that “the blood samples taken in connection with this case still exist.” Defense counsel then requested that the blood evidence “be submitted for DNA testing pursuant to C.P.L. §440.30(1-a).”The defendant further noted that a sample of blood from Neischer still existed to “be used as a comparison.” Counsel argued that “DNA testing” on the samples would lead to “two possible results: (1) the blood samples found in the car and on the bicycles were from Mr. Neischer as a result of the shooting; or (2) the blood samples come from one or both of the perpetrators.”9.The Supreme_Court’s OrdersIn an order dated June 23, 2014, the Supreme Court, Kings County (ShawnDya L. Simpson, J.), granted the defendant’s motion “only to the extent that a hearing [was] ordered.” The court determined that “[c]ontrary to the People’s contention, the defense has demonstrated that there may be new evidence concerning the reliability of the identification made by the one witness in this case.”In a subsequent order dated July 1, 2014, the Supreme Court, Kings County (ShawnDya L. Simpson, J.), directed the People to “provide the current physical location of the vouchered ‘five blood samples’ and ‘tin can with a blood sample’ and [to] make available to the Defendant said vouchered items for the purpose of forensic DNA testing” or, if the evidence no longer existed or if its location was unknown, to “provide a representation to that effect and information and documentary evidence… concerning the last known physical location of such specified evidence.”10.The People’s ResponseIn a letter dated July 15, 2014, the People responded to the Supreme Court’s production order. The People stated that in 1991, “storage numbers were assigned to evidence vouchers.” Although the storage number associated with the voucher for the “tin can with blood sample” was located, the People had been “unable to obtain the storage number” associated with the “five blood samples.”The People stated that, in any event, they were “unable to locate records from 1991 or 1992 regarding the location where the above-referenced vouchered evidence was stored.” An officer from the New York City Police Department Property Clerk’s Office opined that “the evidence was most likely sent to the storage facility in Erie Basin, located at 700 Columbia Street in Brooklyn.”However, “th[e] evidence at Erie Basin was stored in thousands of barrels, designated and sorted by year, but the Erie Basin facility was severely damaged in Hurricane Sandy and… many barrels were destroyed and/or dislodged and are no longer in their previously designated positions.” The People represented that the officer from the Property Clerk’s Office “does not know if barrels containing evidence from 1991 still exist or where they might be located in that facility.”11.The CPL_Article_440_HearingThe Supreme Court, Kings County (ShawnDya L. Simpson, J.), held a CPL article 440 hearing from September 16, 2014, through October 14, 2014.Robert Crosson was the first witness called to testify by the defendant. He testified that he had a “[g]ood” memory of the events surrounding the shooting.He stated that he was sitting in the car with Neischer at about 4:00 a.m. It was a “workday.” Neischer was dropping him off near his home and they had been parked at that location “for about ten minutes.” They “were talking,” and “weren’t doing anything wrong.”Crosson testified that from the time the shooters approached to the time he got out of the car, “almost like a half-a-minute” passed. Crosson said that he and Neischer “didn’t get out right away.”When he was asked whether he left the scene of the crime to get help, Crosson answered “No, I didn’t leave… It is not like I ran away. [I was] just getting away from the car.”Crosson did not recall giving a description of the perpetrators to one of the responding officers. When he was presented with his trial testimony, Crosson still did not recall giving any description of the perpetrators.Crosson stated that he was not interviewed by the Department of Correction regarding this case. Crosson testified that nobody from the Department of Correction came to the hospital to speak with him about what happened in the early morning hours of August 13, 1991. He said that a standard incident report was prepared.When he was asked if he recalled “going into the 77th Precinct later on that morning,” Crosson answered “I didn’t go into the precinct that morning… I think it was a day or two later.” Crosson stated that he met with “a couple of detectives” at the precinct, but that he did not remember their names.On cross-examination, Crosson stated that he remembered identifying someone from a photograph. The person he identified was the defendant. Crosson testified that when he picked out the defendant’s photograph, nobody told him whom to pick, nor forced him to pick out the defendant, and nobody gave him any information about the defendant.Crosson stated that he went to view a lineup on August 14, 1991, and testified that he remembered picking the defendant out of the lineup. Crosson said that “no one told [him]” whom to pick, nobody forced him to pick the defendant, and nobody gave him any information about who was going to be in the lineup on that day.Assistant District Attorney (hereinafter ADA) Edward Boyar, the individual who prosecuted this case in 1991, was also called by the defendant to testify. He testified that the case had been assigned to him “when there was apparently a backlog in the homicide bureau” and that he “did not write the case or present it to the grand jury but was assigned the case for trial only.” He was told to “get rid of the backlog.”By letter from ADA Ed Purce sometime in 2002, ADA Boyar was made aware of two individuals who were considered suspects in this case based on a statement given by George Grant, an alleged witness to the crime. ADA Boyar interviewed Grant on March 6, 2002, and later concluded that his statement was “a boldfaced lie.” ADA Boyar was also made aware of several other individuals who were also potential suspects in this case.When he was asked if he looked into these potential new suspects before the CIU had been established, ADA Boyar answered: “This case had been reviewed by our office prior to that time by a very similar unit, whatever the name of it would be.”ADA Boyar acknowledged that officers and detectives had canvassed a number of hospitals on the date of the shooting looking to see if “[o]ne of the alleged perpetrators” had been injured. ADA Boyar explained: “It was a shoot-out. They wanted to see if the other guy might have gotten shot.”ADA Boyar testified that he did not know whether the blood samples were ever analyzed. The decision to prosecute the case “was not [his].” He could not ask Justice Goldstein for an adjournment to “see what had happened… [t]hat wasn’t going to happen.”ADA Boyar testified that he thought that there was “some kind of plea offer” made to the codefendant by someone else “if he testified against the other fellow” which the codefendant refused. ADA Boyar indicated that he had inquired whether the defendant would be willing to plead guilty in exchange for a sentence of 5 to 15 years, but the defendant “wasn’t interested in anything.”ADA Purce was the next witness called by the defendant to testify. He was assigned to review this case in connection with the CIU in July 2013. He was assigned to the case to look into whether the District Attorney’s Office had prosecuted the right men for this murder.ADA Purce recalled that blood evidence had been recovered at the scene including a sample from a bicycle that was used by one of the perpetrators. In connection with his review of this case pursuant to the CIU, ADA Purce sent “an E-mail and a letter to the forensic biology [sic] of the Office of the Chief Medical Examiner trying to find out what, if anything, happened to those particular swabs and if any testing was ever done.” When asked if he ever received a response to his inquiry, ADA Purce testified: “I still have not received a definitive response about what’s going on with that.”ADA Purce stated that blood samples found in the vehicle had also been vouchered. He reviewed a DD-5 form dated August 13, 1991, which indicated that this blood evidence would be processed further at the police laboratory. ADA Purce had “no independent knowledge” as to whether the blood analysis was done. When asked if the blood evidence was important to this case he answered: “If you had the blood, yeah, that would be helpful.”ADA Purce acknowledged that he wrote a letter to ADA Boyar in which he listed four potential suspects who were being investigated in connection with this case. The names of some of these individuals had been provided by Professor Hellerstein. Two of them had been shot and killed subsequent to this crime. The other two people were incarcerated at the time of the hearing. When asked if he ever tried to establish where these suspects were on the night of the shooting, ADA Purce answered: “I didn’t get to that, no.”Detective Scarcella was the next witness called by the defendant to testify at the CPL article 440 hearing. The record reflects that his two attorneys stood next to him in the witness box during his testimony and made numerous objections and statements throughout the course of his testimony.Detective Scarcella recalled the defendant’s case “[t]o some extent.” He testified that he had worked as a Brooklyn North Homicide Detective for 12 years. He investigated “more than fifty” homicide cases that led to convictions.Since the defendant’s conviction, Detective Scarcella had not discussed this case with anyone except his former partner Detective Chmil. They had discussed this case about “a dozen” times in the last two years.Detective Scarcella repeatedly emphasized: “It was [Detective Chmil's] case. It was not my case.” He testified that his involvement was “very limited” and that he did “nothing of substance.” He later repeated that he did “[n]othing of substance” on the case.When he was asked if he was with Detective Chmil when the defendant was arrested, Detective Scarcella stated “I don’t remember.” He also did not recall testifying at the suppression hearing before Justice Goldstein or being present when Crosson was presented with photographs.When shown a DD-5 form that he had signed on August 13, 1991, in which he detailed the defendant’s arrest, and asked if it refreshed his recollection, Detective Scarcella stated that it did not. He also did not recall testifying that they “got lucky” in choosing to go to the second floor. When asked if he obtained an arrest warrant before arresting the defendant, Detective Scarcella responded: “No, sir. I don’t know your client. No, no, no, no, no, no, no, in Brooklyn,” at which point his response was interrupted by defense counsel. The detective subsequently completed his answer stating he did not remember arresting the defendant, but the procedure in Brooklyn at that time was first to obtain authorization from the District Attorney’s Office before making an arrest. The defendant’s trial attorney later testified that as far as he remembered, the police had not obtained an arrest warrant prior to arresting the defendant.Detective Scarcella testified that he was not aware that Detective Chmil referred to him as the assigned detective in this case. When asked if anything would refresh his recollection Detective Scarcella answered “not at all.” When he was asked to confirm that there was nothing that would refresh his recollection Detective Scarcella answered: “It wasn’t my case.”When he was confronted with the testimony from Detective Chmil indicating that he and Detective Barba were the assigned detectives, Detective Scarcella stated “I read it and it actually means nothing. I was not the case [d]etective.” When he was asked whether he and Detective Chmil showed Crosson 6 photographs Detective Scarcella answered “I believe not. I have no recollection of that at all.” When asked, after he reviewed the suppression hearing transcript, whether he and Detective Chmil pulled 6 photographs randomly out of a stack of 600 photographs, Detective Scarcella answered “I did not state that and I don’t remember.”Detective Scarcella testified that he had last spoken with the District Attorney’s Office in January or February 2012 in connection with the CIU review of the David Ranta conviction. Detective Chmil was his partner in the Ranta case. He acknowledged that, after he spoke with the District Attorney’s Office, that office filed a motion to vacate Ranta’s murder conviction and that one of the issues raised involved a lineup identification by Menachem Lieberman.Detective Scarcella confirmed that the Kings County District Attorney’s Office had continued the investigation into more than 50 prosecutions which involved his police work.Detective Scarcella also testified that he was aware of individuals named Darryl Austin, Alvena Jennette, and Robert Hill, whose murder convictions had been overturned by the District Attorney’s Office only a few months before the hearing. Detective Scarcella acknowledged that he had been the “lead detective” on the Hill case, and was a detective assigned to the other cases.Detective Scarcella also acknowledged having used a witness named Theresa Gomez in all of those cases. He agreed that Gomez’s testimony and his investigation were “a big part” of the three convictions that were vacated.Detective Scarcella testified that about “five or six” homicide convictions were based on Gomez’s eyewitness testimony. Detective Scarcella confirmed that he “locate[d]” Gomez and that she was “ [his] witness.” He acknowledged that she was addicted to crack cocaine and that he had given her money.The People did not cross-examine Detective Scarcella.The People only called one witness, Detective John Mullen, to testify at the hearing. He testified that sometime in 2014, he assisted ADA Purce in connection with the District Attorney’s continued investigation into the defendant’s case.12.The Supreme_Court’s OrderIn the order appealed from, the Supreme Court, Kings County (ShawnDya L. Simpson, J.), inter alia, granted that branch of the defendant’s motion which was pursuant to CPL 440.10(1)(g) to vacate the judgment and for a new trial on the ground of newly discovered evidence (see People v. Hargrove, 49 Misc 3d 1208[A], 2015 NY Slip Op 51517[U] [Sup Ct, Kings County]).After summarizing the defendant’s arguments on the motion, the court discussed its findings of fact (see People v. Hargrove, 2015 NY Slip Op 51517[U], *6).The court noted that “[i]n 2013, prosecutors reevaluated the case of David Ranta and sought his release from prison after evidence revealed that the testimony of identity witnesses in the case was false” (id.). ”Similarly, Derrick Hamilton was convicted almost solely on the identification testimony of the girlfriend of the possible shooter who later recanted her story” (id.). ”In other cases, Robert Hill, Alvena Jennette and Darryl Austin, were convicted almost solely by the identification testimony of an informant used by Detective Scarcella in various cases, who had a severe crack [cocaine] addiction and has since been discredited” (id.). ”The judgment of conviction in those cases have also been vacated by the prosecution” (id.).The Supreme Court stated that “[i]t has been established that the cases of David Ranta, Derrick Hamilton, Robert Hill, Alvena Jennette and Darryl Austin” were compromised “by the intentional acts of Detective Scarcella” (id.). The court continued: “In each of those cases, Detective Scarcella procured identification testimony that was false” and “[a]ll the cases the District Attorney’s office [has] vacated involved unreliable or false identification testimony facilitated by Detective Scarcella” (id.).The court noted that “[t]he issue again in this case is the possible unreliability and compromised identification testimony of a witness prepared by Detective Scarcella” (id.). The defendant’s conviction was “based solely on the identification of that one witness” (id.).The court described the evidence that showed that Detective Scarcella participated in the various stages of the investigation which ultimately led to the defendant’s identification. To begin, the court noted that Detective Scarcella’s partner had testified at the suppression hearing that Detective Scarcella “was the Detective assigned to the defendant’s case from the homicide squad” (id. at *7).The court went on to note Detective Scarcella’s testimony at the suppression hearing where he stated that he had responded to the apartment complex where the defendant lived at 12:30 a.m. after receiving an anonymous telephone call. Detective Scarcella claimed that the officers did not know where the defendant lived, but that they “got lucky” in spotting the defendant on the second floor of one of the buildings in the housing project (id.). Detective Scarcella did not have a warrant to arrest the defendant.The court went on to find that the evidence showed that Detective Scarcella was present when Detective Chmil randomly selected photographs to be shown to Crosson at the police precinct. Detectives Chmil and Scarcella were the only two officers present when the photographic identification was conducted. The court further noted that the photographic identification was critical to the defendant’s convictions.Moreover, the court found that the record demonstrated that Detective Scarcella was present at, and participated in, the subsequent lineup identification procedure organized by him and his partner Detective Chmil (see id. at *8). The court concluded that Detective Scarcella was “in part responsible for the outcome” of the identification procedures “as the assigned Detective investigating and processing the case” (id.).The court found that Detective Scarcella’s testimony at the CPL article 440 hearing was “false, misleading, and non-cooperative” (id. at *6). The court reasoned that Detective Scarcella refused to confirm that he was the detective assigned to the case, repeatedly stating it was his partner’s case and that “he did nothing of substance in the investigation” (id. at *3). These statements conflicted with other portions of Detective Scarcella’s testimony where he consistently disclaimed any recollection of the most basic aspects of the investigation.The court determined that “[t]he revelation of Detective Scarcella’s malfeasance in fabricating false identification evidence gravely undermines the evidence that convicted the defendant in this case” (id. at *7). ”The sole basis for the defendant’s conviction [was] the identification by one witness” (id.).In this regard, the court noted that Crosson had testified at the trial that the person who assaulted him was a stranger, and that “his assailants [were] two light skinned black males in their twenties” (id. at *6). The court observed that Crosson was a black male and that “[n]one of the defendants may be accurately described as ‘light skinned’ black males” (id.). The court further noted that the defendant was 17 years old at the time and the codefendant was 14 years old.In addition, the court noted that Crosson “never recognized or identified that his assailant was a person known to him or that he had previously seen the defendant” (id. at *7). ”There [was] no evidence Crosson recognized the defendant at the outset of the crime, although they lived in the same housing for over twenty years and [Crosson] admitted to knowing the defendant’s family with whom the defendant lived” (id.).The court reiterated that “[t]here was no other evidence available, aside from Mr. Crosson’s testimony, to convict the defendant” (id.). The court then noted that the fingerprints that were taken from the bicycles used by the perpetrators and the fingerprints and palm prints that the police recovered from the stolen vehicle did not match either the defendant or the codefendant, and that in 23 plus years blood evidence that was recovered was not tested.The court stated that the defendant’s trial “appeared to be a summarily tried case, with missing evidence and a rushed process” (id. at *8). ”Paperwork requesting DNA analysis was never completed” (id.). ”It was also a two day, two defendant homicide jury trial” (id.).The court also stated that “[r]ounds were fired… from the deceased and it is possible that the blood may be other than the victim’s” (id.). The court further stated that the blood samples that were recovered by the police from the bicycles and the stolen vehicle were not made available at trial and cannot now be located. Accordingly, the loss of the blood samples that were recovered by the police from the bicycles and the stolen vehicle “brings into question the reliability and due process of the proceedings in this case” (id.).The court concluded: “Given the false and misleading testimony provided by former detective Louis Scarcella at the hearing… and the circumstances surrounding the conviction, with missing biological evidence, inconsistent testimony, and bare evidence, this court finds that the newly discovered evidence makes it probable that the result in this case would have been different if a new trial were held” (id.).The court stated that the issue here was “not whether the defendant is innocent, but whether the newly discovered evidence should require a new trial” (id.). The court determined that “[t]he pattern and practice of Scarcella’s conduct which manifest a disregard for rules, law and the truth undermines our judicial system and gives cause for a new review of the evidence” (id.).In light of its determination, the Supreme Court vacated the defendant’s judgment of conviction and ordered a new trial. AnalysisThe People have appealed the Supreme Court’s order directing a new trial. The People raise two issues on this appeal.Under their first point heading, the People argue that “[the] defendant failed to produce any evidence of alleged police misconduct that would have been admissible either at trial or at the pretrial suppression hearings, let alone admissible evidence that probably would have resulted in a different verdict” (emphasis in original).In their second point heading, the People argue that the defendant failed to demonstrate that blood evidence was improperly destroyed. The People further argue that “there was no evidence that [the] defendant was deprived of the opportunity to seek testing of the blood evidence, either before, during, or after the trial.”1.The Newly_Discovered Evidence_StandardThe People contend that the Supreme Court erred in granting that branch of the defendant’s motion which was for a new trial based on newly discovered evidence. The People argue that the evidence submitted by the defendant was insufficient to meet the standard for a new trial under CPL 440.10(1)(g). Accordingly, in order to evaluate the merit of the People’s contention, we must first set forth the standard to be applied pursuant to CPL 440.10(1)(g).This Court has applied a six-part test for determining whether newly discovered evidence may form the basis of a motion pursuant to CPL 440.10(1)(g):“Newly-discovered evidence in order to be sufficient must fulfill all the following requirements: 1. It must be such as will probably change the result if a new trial is granted; 2. It must have been discovered since the trial; 3. It must be such as could have not been discovered before the trial by the exercise of due diligence; 4. It must be material to the issue; 5. It must not be cumulative to the former issue; and, 6. It must not be merely impeaching or contradicting the former evidence” (People v. Malik, 81 AD3d 981, 981-982 [internal quotation marks omitted]).This Court has explained that “[the] power to grant an order for a new trial, based upon newly discovered evidence, is purely statutory and such power may be exercised by the court only when the requirements of the statute have been satisfied” (People v. Balan, 107 AD2d 811, 815 [internal quotation marks omitted]; see People v. Latella, 112 AD2d 321, 322).However, the relevant statute only sets forth three of the six criteria that are routinely recited by this Court (see CPL 440.10[1][g]). Significantly, the requirement that the new evidence must “not be merely impeaching or contradicting the former evidence” (People v. Davidson, 150 AD3d 1142, 1144 [internal quotation marks omitted]), does not appear anywhere in the statutory language (see CPL 440.10[1][g]).To the contrary, the actual statutory language provides that:“At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that… [n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10[1][g]).Accordingly, only the first three criteria listed above have any explicit basis in the statute (compare CPL 440.10[1][g], with People v. Davidson, 150 AD3d at 1144). The remaining three criteria have been derived exclusively from case law.The origin of the standard may be traced to Berry v. State of Georgia (10 Ga 511), an 1851 case from the Georgia Supreme Court (see United States v. Johnson, 327 US 106, 110 n 4; United States v. Stofsky, 527 F2d 237, 243 [2d Cir]).The defendant in that case—a white man named James Berry—was accused of conspiring with two African-American slaves to steal money from another man’s house (see Berry v. State of Georgia, 10 Ga 511). Much of the evidence used against Berry was obtained from one of the African-American slaves “in a confession drawn from him by whipping” (id. at 519). Among other “Common Law” principles relied upon in that case, was the rule that “a negro has never been permitted to give evidence in any case, where the rights of a white person were concerned” (id.).After discussing these reprehensible sentiments, the Georgia Supreme Court considered the defendant’s application for a new trial based on newly discovered evidence (see id. at 526-527). In rejecting the defendant’s claim, the Georgia Supreme Court applied the six-part test (see id.).After the precursor to CPL 440.10(1)(g) was enacted in 1881 (see Code of Criminal Procedure §465[7], added L 1881, ch 442), the Court of Appeals ultimately grafted the common-law restrictions set forth in Berry v. State of Georgia (10 Ga at 526-527) onto the statute, even though those six common-law criteria were not all specifically incorporated into the statute (see People v. Priori, 164 NY 459, 472; see also People v. Salemi, 309 NY 208, 226; see generally Brian R. Means, Postconviction Remedies §3:3 [June 2017 update]).Even after the current statute was enacted (see CPL 440.10[1][g], added L 1970, ch 996, §1), courts have continued to apply these six common-law criteria, even though they were not all included in the statutory language (see People v. Davidson, 150 AD3d at 1144; People v. Mazyck, 118 AD3d 728, 730; People v. Hamilton, 115 AD3d at 20; People v. Deacon, 96 AD3d 965, 967; People v. Malik, 81 AD3d at 981-982; People v. Tankleff, 49 AD3d 160, 179).However, in applying these common-law criteria, the courts have not consistently applied the “not [ ] merely impeaching” factor as a formal legal requirement that must be established before a court is permitted to grant a new trial based on newly discovered evidence. To the contrary, case law indicates that it is a factual or discretionary factor that is used for evaluating whether the new evidence would “create a probability” of a more favorable verdict (CPL 440.10[1][g]).The Court of Appeals has consistently taken the view that a motion based on newly discovered evidence is a purely discretionary determination (see People v. Jones, 24 NY3d 623, 627; People v. Santos, 1 NY3d 548, 548; People v. Baxley, 84 NY2d 208, 212; People v. Brown, 56 NY2d 242, 246; People v. Crimmins, 38 NY2d 407, 409; People v. Patrick, 182 NY 131, 178; People v. Buchanan, 145 NY 1, 30). This view undercuts the notion that the “not [ ] merely impeaching” criteria is a legal prerequisite. In addition, the actual application of this criteria in numerous cases indicates that newly discovered impeachment evidence may properly form the basis for a new trial under the current and former statutory schemes.For instance, in People v. Rensing (14 NY2d 210), the defendant was convicted of murder in the first degree based on the testimony of his codefendant and upon a confession obtained from the defendant (see id. at 211). Both the defendant and the codefendant were convicted, and the codefendant was subsequently “sent to [a] [h]ospital for observation” and later “found to be suffering from a ‘longstanding mental illness’” (id. at 212). The codefendant “was certified as ‘legally insane’ and committed to [a] State Hospital” (id.).The defendant thereafter moved for a new trial on the basis of this newly discovered evidence of the codefendant’s mental health (see id.). The Supreme Court denied the motion, citing the defendant’s confession, and concluded that the new evidence would not have materially affected the deliberations of the jury (see id.).Since the defendant had been sentenced to death, the Court of Appeals performed a factual review of the Supreme Court’s denial of the motion for a new trial (see People v. Rensing, 14 NY2d 210). The Court of Appeals, with one Judge dissenting, reversed and ordered a new trial (see id.).In reaching its conclusion, the majority stated that it was required to determine “the reactions of the jurors” if they had been aware of the new evidence regarding the codefendant’s mental health (id. at 214). The majority reasoned that it was “impossible” to know how the new evidence of the codefendant’s mental health would have affected the jury’s determination (id.). The majority said “we would not have our verdict to affirm rest on possibility or surmise” (id.). Rather than remit the case to the Supreme Court for a hearing on the defendant’s motion, however, the Court simply granted a new trial in the interest of justice (see id.).Case law from the Appellate Divisions reinforces the view that impeachment evidence may properly form the basis for a new trial where it is of such weight that it would “create a probability” of a more favorable verdict (CPL 440.10[1][g]). For example, this Court has previously granted a new trial based solely on impeachment evidence (see People v. Gurley, 197 AD2d 534, 536; People v. Foller, 229 App Div 789, 789-790; see also People v. Collins, 250 AD2d 379, 379-380; People v. Barreras, 92 AD2d 871, 871; cf. People v. Yoli, 150 AD2d 741, 741-742).In addition, although this Court has often rejected new recantation testimony on the ground that it “merely impeached or contradicted… [the witness's] former testimony” (People v. Cassels, 260 AD2d 392, 393; see People v. Turner, 215 AD2d 703, 703; People v. Baxley, 194 AD2d 681, 682, mod 84 NY2d 208; People v. Legette, 153 AD2d 760, 761; People v. Lavrick, 146 AD2d 648, 648; see also People v. Saunders, 301 AD2d 869, 872), the Court of Appeals has specifically stated that “[e]vidence of recantation upon the part of a witness is not merely evidence which tends to impeach or discredit a witness” (People v. Shilitano, 218 NY 161, 170; accord People v. Jenkins, 84 AD3d 1403, 1408).Similarly, the First Department has found that new evidence showing that police witnesses were guilty of various crimes unrelated to the defendant’s case “would have merely impeached… [their] general credibility” (People v. Quan Hong Ye, 92 AD3d 407; see People v. Parsons, 6 AD3d 364, 365; People v. Roberson, 276 AD2d 446; People v. Tai, 273 AD2d 150, 151; People v. Reyes, 255 AD2d 261, 263; People v. Vasquez, 214 AD2d 93, 102; see also People v. Major, 222 AD2d 284, 284).However, in another case, the First Department affirmed an order granting a new trial based on new evidence which indicated that a Department of Correction captain had engaged in misconduct in unrelated cases (see People v. Santos, 306 AD2d 197, 198, affd 1 NY3d 548). The First Department in that case held that the new impeachment evidence “went to the very heart of this defendant’s trial defense” and created the probability of a more favorable verdict (id. at 198). Other cases from the Appellate Divisions have similarly indicated that impeachment material may properly form the basis for a new trial where the circumstances of the case showed that it would create a probability of a verdict more favorable to the defendant (see People v. Madison, 106 AD3d 1490, 1493; People v. Jackson, 29 AD3d 328, 329).The disparate results in these cases are inconsistent with the view that the “not merely impeaching” criteria is a legal prerequisite. Rather, the divergent case law can only be reconciled if that criteria is construed to be a factor that should be taken into account when evaluating whether the new evidence would “create a probability” of a more favorable verdict (CPL 440.10[1][g]).Indeed, it has been observed that any evidence that would warrant a new trial would almost necessarily tend to “impeach[ ]” or “ contradict[ ]” the evidence presented by the People at trial (People v. Salemi, 309 NY at 216; see Love v. State of Maryland, 95 Md App 420, 433, 621 A2d 910, 917). Accordingly, a strict application of the “not [ ] merely impeaching or contradicting” criteria would subvert the overall purpose of the statute and render its remedial purpose illusory (People v. Salemi, 309 NY at 216 [internal quotation marks omitted]; accord People v. Santos, 306 AD2d at 198-199).Accordingly, we conclude that the courts should only construe the core elements of the statute as strict legal requirements (see CPL 440.10[1][g]; accord People v. Jones, 24 NY3d at 637 [Abdus-Salaam, J., concurring]). In other words, a motion for a new trial based on newly discovered evidence should only be granted if the court finds, as a factual matter, that the movant has demonstrated that “[1] [n]ew evidence has been discovered since the entry of a judgment… [2] which could not have been produced by the defendant at the trial even with due diligence on his part and [3] which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10[1][g]).The remaining three criteria should be used to evaluate the ultimate issue of whether the new evidence would “create a probability” of a more favorable verdict (CPL 440.10[1][g]). In assessing the probable impact of the new evidence, the court should consider whether and to what extent the new evidence is (1) material to the pertinent issues in the case, (2) cumulative to evidence that was already presented to the jury, and (3) merely impeaching or contradicting the evidence presented at trial (accord People v. Rensing, 14 NY2d at 214; People v. Salemi, 309 NY at 215-216; People v. Shilitano, 218 NY at 170).Thus, in this case, this Court has reviewed the Supreme Court’s factual determination that the newly discovered evidence would “create a probability” of a more favorable verdict (CPL 440.10[1][g]). To this end, we have evaluated the newly discovered evidence in light of the evidence adduced by the People at trial and the circumstances surrounding the trial as established by the record on appeal in order to determine what “the reactions of the jurors” would have been if they had been made aware of the new evidence that Detective Scarcella had engaged in a pattern of facilitating false identification testimony during the period in question (People v. Rensing, 14 NY2d at 214; see People v. Salemi, 309 NY at 227-228 [Fuld, J., dissenting]).2.Application of_the StandardIn the order appealed from, the Supreme Court properly considered the newly discovered evidence of prior police misconduct and evaluated its probable impact in the context of the defendant’s trial. The court found that “[t]he sole basis for the defendant’s conviction [was] the identification by one witness,” and that “[t]he revelation of Detective Scarcella’s malfeasance in fabricating false identification evidence gravely undermines the evidence that convicted the defendant in this case” (People v. Hargrove, 2015 NY Slip Op 51517[U], *7).The court then came to its ultimate factual determination: “Given the false and misleading testimony provided by former Detective Louis Scarcella at the hearing… and the circumstances surrounding the conviction, with missing biological evidence, inconsistent testimony, and bare evidence, this court finds that the newly discovered evidence makes it probable that the result in this case would have been different if a new trial were held” (id. at *8).On their appeal, the People argue that Detective Scarcella’s testimony was not important to the prosecution’s case, and that the allegations of his misconduct in other cases would have had no effect on the outcome of the defendant’s trial. This analysis fails to adequately contextualize the newly discovered evidence.It is true that Detective Scarcella was not questioned about his role in the identification procedures at the original trial. However, this is merely a consequence of the fact that defense counsel did not have possession of the newly discovered evidence. If counsel had such evidence, there can be no doubt that Detective Scarcella’s testimony would have figured more prominently in the defendant’s case, which already was premised on misidentification. Accordingly, the impact of the new evidence cannot accurately be measured by simply negating the testimony that Detective Scarcella gave at the suppression hearing.Furthermore, the People’s entire case was premised on the identification testimony proffered by Crosson. Crosson’s identification was facilitated by Detective Scarcella. He was one of the two detectives alone with Crosson during the initial photographic identification, and he was one of three detectives who supervised the subsequent lineup identification. Detective Scarcella, while not called at trial, was called by the People to testify at the suppression hearing before Justice Goldstein.“[T]he People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure” (People v. Chipp, 75 NY2d at 335; see People v. Charles, 110 AD3d 1094, 1096). ”Where the Judge at the suppression hearing determines that the testimony of the police officer is unworthy of belief, he [or she] should conclude that the People have not met their burden of coming forward with sufficient evidence and grant the motion to suppress” (People v. Berrios, 28 NY2d 361, 369; see People v. Martinez, 71 AD2d 905).Accordingly, the defendant would not have been required to affirmatively demonstrate that Detective Scarcella engaged in improprieties during Crosson’s pretrial identifications. If the Judge at the suppression hearing did not find the police testimony credible, suppression of Crosson’s pretrial identification would have been warranted (see People v. Berrios, 28 NY2d at 369; People v. Martinez, 71 AD2d 905).Moreover, there were reasons to question the police account of the identification procedures even before the evidence of Detective Scarcella’s improprieties emerged. Crosson initially described the perpetrator as a light-skinned black male in his 20s. Detective Barba similarly testified that the description broadcast over the police communications system described a “[m]ale black, twenties… [l]ight complexion.” The Supreme Court, after observing the defendant, concluded that he could not accurately be described as light-skinned. The defendant thus did not fit the primary distinguishing characteristic given by Crosson in his description.And yet, less than 24 hours after the shooting, the defendant was taken into custody by Detective Scarcella. Indeed, police records indicate that the defendant’s mother had been interviewed about 12 hours after the shooting occurred.It should be recalled that the defendant was known to the police at the time—he had previously been arrested for a series of similar car-jackings which occurred in the vicinity of the Kingsborough Housing Project. The defendant later told the Department of Probation that “those who told Crosson to blame [him] and [the codefendant], knew about their car theft history.”Nevertheless, Detective Scarcella testified at the suppression hearing that he arrested the defendant after an individual at the 77th Precinct “received a phone call” from an anonymous source. Detective Scarcella testified that the unidentified caller did not specify where the defendant lived. When he was asked to provide further details given by the caller, Detective Scarcella stated that he “didn’t answer the phone.” When he was asked who took the anonymous telephone call, he answered: “I don’t know.”When the detectives arrived at the housing project, they proceeded to the second floor of the building where the defendant’s sister lived. The police, who did not have an arrest warrant, noted on the DD-5 form signed by Detective Scarcella that the defendant was arrested in the hallway in front of his sister’s apartment. The defendant was given his Miranda warnings by Detective Scarcella in the bedroom of his sister’s apartment (see Miranda v. Arizona, 384 US 436). The defendant was informed that he was going to be charged with attempted murder. When he was asked how they knew to go to the second floor of that building, Detective Scarcella stated “[w]e got lucky.”The shooting had occurred at approximately 4:00 a.m. on August 13, 1991. Police records confirm that the defendant was arrested less than 24 hours later at 12:30 a.m. on August 14, 1991.Crosson testified at trial that he went to the precinct and identified the defendant from a photograph on August 14, 1991. Accordingly, based on Crosson’s testimony, the defendant was arrested before Crosson identified him.At the suppression hearing, however, Detective Chmil testified that Crosson identified the defendant from a photograph at 11:30 a.m. on August 13, 1991—the same date as the shooting. This was a little more than seven hours after the shooting occurred.Based on Detective Chmil’s timeline, Crosson was shot in the hand, responded to the scene with police, was transported to the hospital with Neischer, underwent treatment for his wound, was interviewed by correction officers and police at the hospital, and then returned to the precinct later that morning to identify the defendant from a stack of looseleaf photographs. As noted, Crosson himself denied that this occurred both at the trial and at the CPL article 440 hearing.Furthermore, if Crosson had identified the defendant prior to the arrest, it is unclear why Detective Scarcella did not mention this crucial fact during his testimony or in his DD-5 report. Instead, as noted, Detective Scarcella indicated that the defendant’s arrest was precipitated by an anonymous telephone call which was recorded in his DD-5 report.If, as Crosson’s testimony indicates, the defendant was arrested before Crosson identified him, then the defendant’s arrest was without probable cause (see generally People v. Bigelow, 66 NY2d 417, 423-424). The illegal arrest could have formed an independent basis for suppressing the subsequent lineup identification as a fruit of the illegal arrest, thus making an intervening photographic identification critical (see generally People v. Jones, 21 NY3d 449, 454-455).Detective Chmil’s testimony regarding the photographic identification is also problematic. Detective Chmil testified that he put together a series of six photographs to show Crosson. When he was asked how he chose the six photographs, Detective Chmil testified: “I just opened the drawer which contained about 5, 6 hundred color photos and just randomly picked out 6 photos.” When Detective Chmil was asked whether he had any information indicating that the defendant was one of the perpetrators at the time that he selected the photographs, the court sustained the prosecutor’s general objection to the question, without elaborating.Detective Scarcella and Detective Chmil were alone with Crosson when the six separate photographs were shown to him. Although DD-5 reports were prepared for all of the other steps in the investigation, there is no DD-5 report in the record documenting the photographic identification.If, as Crosson testified, the defendant was arrested prior to the photographic identification, the defendant would have been present at the precinct while the photographic identification was taking place. It is unclear why the police would have conducted a photographic identification even though the defendant was already in their custody.Detective Chmil testified that he handed Crosson six color photographs in “looseleaf” form, and asked Crosson if he recognized anyone. Crosson picked out the photograph of the defendant.Although Crosson repeatedly claimed at trial and during the CPL article 440 hearing that he did not know the defendant prior to this identification, the PSI report indicated that “Crosson identified [the defendant] as his shooter from the photos but admitted that he recognized him from the projects and would need to see him in person in order to be sure.” At trial, Crosson testified that he only knew the defendant’s mother and sister from the housing project.In light of the foregoing, we conclude that evidence showing that Detective Scarcella had engaged in a pattern of falsifying evidence and facilitating false identification testimony would have had a powerful effect at the suppression hearing. The irregular circumstances and irreconcilable testimony surrounding the identification procedures would be difficult to ignore in the face of this new evidence.If the suppression court refused to credit the police testimony about the events leading to Crosson’s identification, the pretrial identifications would have been suppressed (see People v. Berrios, 28 NY2d at 369; People v. Martinez, 71 AD2d 905). Indeed, if the police were not credited, Crosson may very well have been precluded from even identifying the defendant at trial (see People v. Marshall, 26 NY3d 495, 504; People v. Rahming, 26 NY2d 411, 417; People v. Underwood, 239 AD2d 366, 367). If Crosson’s identification testimony was precluded, the impact would have been fatal to the prosecution’s case as the People had no other evidence linking the defendant to this crime.Given the powerful effect that the newly discovered evidence would have had at the suppression hearing and the ultimate effect on the outcome of the trial, the Supreme Court’s conclusion that the newly discovered evidence would “create a probability” of a more favorable verdict is supported by the record (CPL 440.10[1][g]).Even if the suppression court credited the police account of the defendant’s arrest and Crosson’s pretrial identification, the jury could have nevertheless found that the questionable police procedures surrounding Crosson’s identifications created reasonable doubt as to the veracity and accuracy of his identification (see People v. Ruffino, 110 AD2d 198, 202-203; see generally Gary Muldoon, Handling a Criminal Case in New York §9:283 [September 2017 update]). What is more, the jury could have evaluated these unusual circumstances by taking into account, not only Detective Scarcella’s history of facilitating false identification testimony, but the larger police investigation that occurred in this case.For example the jury would have evaluated the police identification procedures in light of the curious handling of the blood evidence. The jury would have been aware that the police submitted the blood evidence that was obtained from the bicycles and the stolen vehicle to the laboratory for testing and comparison, but that they never received those results. There was no explanation as to why the blood was not tested.In his summation, defense counsel asked the jury to “look at the way the police handled this case.” He argued that important forensic evidence had not been tested or otherwise investigated. In this context, evidence showing that Detective Scarcella had engaged in a pattern of facilitating false identification testimony would have had an explosive effect. The irregular circumstances surrounding the identification would have reinforced the defendant’s argument that the police had determined the defendant’s guilt at the outset of their investigation, as reflected by their abbreviated forensic investigations. The evidence that Detective Scarcella had engaged in such practices in other cases would have been powerful support for the defense case and would have blunted the any response by the prosecution that the defense was peddling conspiracy theories.Given this context, it is not difficult to imagine “the reactions of the jurors” if they had been made aware of the new evidence that Detective Scarcella had engaged in a pattern of facilitating false identification testimony during the period in question (People v. Rensing, 14 NY2d at 214; see People v. Salemi, 309 NY at 215-216). The new evidence would have provided a powerful new avenue to argue to the jury “that the pretrial procedure was itself so suggestive as to create a reasonable doubt regarding the accuracy of that identification and of any subsequent in-court identification” (People v. Ruffino, 110 AD2d at 203). Accordingly, the effect of the new evidence at trial provides an additional ground for concluding that the newly discovered evidence would “create a probability” of a more favorable verdict (CPL 440.10[1][g]).But in order to fully appreciate the likely effect of this new evidence at the trial, it should not be considered in a vacuum. Its full effect cannot be measured by simply considering the strength it would afford the defense case. Rather, the new evidence must be considered in the context of the relative strength of the People’s evidence of guilt (see People v. Rensing, 14 NY2d at 214; People v. Salemi, 309 NY at 215-216).Here, the People’s case was exceptionally weak. The sole evidence of the defendant’s guilt was Crosson’s identification, which was obtained through the efforts of a police detective whose investigatory record is so troubling that the District Attorney has resolved to review every single one of his cases. The new evidence shows that this detective repeatedly procured false identification testimony during the same period that he worked to secure Crosson’s identification of the defendant.Furthermore, Crosson’s identification of the defendant was inconsistent with the initial description that he gave to police investigators and inconsistent with the description that was broadcast over the police system. Crosson did not give an independent description of the perpetrators at trial.Moreover, the forensic evidence that was actually tested in this case supports the defendant’s claim that he is innocent. The record shows that the fingerprints and palm prints that were recovered from Neischer’s vehicle were compared to the defendant’s and the codefendant’s prints, and the results were negative, meaning that they “didn’t belong to the defendants.” The fingerprints and palm prints also did not belong to Neischer, the owner of the car. Detective Barba testified that the fingerprints and palm prints were not compared to Crosson’s prints because Detective Barba did not make a request for them.More significantly, Detective Barba indicated that fingerprints were lifted from the two bicycles that were recovered from the scene of the crime. Detective Barba testified that “[t]he fingerprints that were lifted from the bicycles didn’t belong to the defendants.” These bicycles were left at the scene and secured by police minutes after the crime occurred. There was no testimony that the perpetrators wore gloves and the crime occurred in August.The weakness of the People’s case is manifested throughout the record and questionable aspects persist. The defendant and the codefendant were jointly prosecuted at a single trial where the initial jury instructions, the prosecutor’s opening statement, the People’s case, and the defense cases were all presented over the course of a single day. The jury delivered its verdict only after it was held until after 11:00 p.m. prior to the Thanksgiving holiday.In the PSI report, it was noted that a correction officer stated that he received a telephone call from an inmate stating that the wrong people had been convicted for the crime. A correction officer who was “a friend and co-worker of the deceased” said that he “hope[d] that the defendants [were] the correct murderers.”After this Court affirmed the defendant’s judgment of conviction, the District Attorney re-opened the defendant’s case and began investigating at least four other suspects. This occurred before Detective Scarcella had been accused of any improprieties and before the CIU was even formed.After revelations about Detective Scarcella surfaced in other cases, the CIU was formed, but the District Attorney’s Office itself was unable to obtain the blood evidence for its own review. Detective Scarcella refused to cooperate with the review of the defendant’s case, and the ADA in charge of the new investigation did not follow up with the other suspects who had previously been identified by the District Attorney’s Office in its earlier review of the case.When the defendant argued that the blood samples had been destroyed “in bad faith on the part of the prosecution and the police department” (emphasis omitted), the People argued that the case file still contained the property vouchers for the blood evidence, and indicated that it would not have been released under any circumstances.The defendant thereafter asked the People to turn over the blood samples so they could be tested. The Supreme Court granted the defendant’s request. However, the People then responded that the samples could not be located due to Hurricane Sandy. Incredibly, the People take the position on appeal that there is no evidence that the blood evidence no longer exists and that the defendant has never been precluded from testing it.Finally, it should be emphasized that throughout this case the defendant has maintained his innocence. Neither the defendant nor the codefendant were interested in favorable plea deals that were floated by the prosecution before trial. Even after they were convicted both defendants independently maintained their innocence to the Department of Probation, and directly to the sentencing Judge at the sentencing proceeding, to their own considerable detriment. The defendant and the codefendant have continued to maintain their innocence to this day. The codefendant continued to challenge his conviction even after he was released from prison.On their appeal, the People contend that the hearing testimony did not establish that any police misconduct occurred in this or in any other case, and that the evidence that was submitted with the defendant’s motion papers would not be admissible at trial. The People’s brief is focused on a list of factual statements made by the Supreme Court which, in the People’s view, are not supported by the record.The People’s argument regarding the admissibility of the evidence that was submitted with the defendant’s motion papers is unpreserved for appellate review. At the CPL article 440 hearing, the defendant’s attorney specifically asked the court “to review all of the evidence that’s been submitted… not only on the motion papers but [the defense's] supplemental papers” as well. The prosecutor did not object to the defendant’s request. Accordingly, the People’s current contention is unpreserved for appellate review (see People v. Clarke, 81 NY2d 777, 778; People v. Bartley, 298 AD2d 160, 160).Furthermore, under the circumstances, this unpreserved issue should not be reached in the interest of justice. At the CPL article 440 hearing, the People themselves submitted documentary materials which they asked the court to consider as “[p]art of [the court's] record for review.” Defense counsel had no objection to the People’s request to have them considered in connection with the court’s determination of the defendant’s motion. Indeed, on this appeal, the People actually cite and rely on some of the submissions that the defendant attached to his CPL 440.10 motion papers.By failing to raise these evidentiary objections before the motion court, the defendant was effectively deprived of any opportunity to respond to the People’s objections by submitting additional, foundational proofs or alternative forms of evidence. Under the circumstances, it would be fundamentally unfair to reach these unpreserved evidentiary issues in the exercise of this Court’s interest of justice jurisdiction (see People v. Chatman, 14 AD3d 620, 620; People v. Prescott, 191 AD2d 521; see also People v. Hunter, 17 NY3d 725, 728; People v. Lawrence, 64 NY2d 200, 206; Horton v. Smith, 51 NY2d 798, 799; Pilon v. Pilon, 278 AD2d 760, 760-761; Simon v. Indursky, 211 AD2d 404, 405; see generally Prince, Richardson on Evidence §1-201 [2008]).As previously noted, the People also take issue with certain findings made by the Supreme Court. The People argue that “[t]he lower court’s decision granting the motion to vacate the judgment rested largely on factual findings that are utterly unsupported by the record.”Specifically, the People contend that the record does not support the Supreme Court’s statements that Detective Scarcella was “‘the assigned detective’” in this case, that he “prepared” Crosson and the photographic array, or that he “organized” the lineup identification. The People further contend that the record does not support the court’s statement that Detective Scarcella testified at the pretrial hearing about “‘the identification procedures.’”The People are correct that the particular phrasing used by the Supreme Court in characterizing Detective Scarcella’s role in the investigation was, at times, overstated. However, the core of these factual findings was nevertheless supported by the record. The record amply demonstrates that Detective Scarcella was one of two detectives who participated in the photographic identification procedure, that he was one of the detectives who “supervised” the lineup identification, and that he testified at the hearing that was held regarding the identification procedures. Moreover, the People’s argument that Detective Scarcella was not the assigned detective on the case is flatly contradicted by testimony from Detective Chmil, who stated that Detective Scarcella “was the assigned detective.”The relatively minor semantic deviations highlighted by the People do not invalidate the thrust of the Supreme Court’s factual findings. Indeed, the Supreme Court’s conclusion reflects its ultimate adherence to the record: that Detective Scarcella was “in part responsible for the outcome” of the identification procedures “as the assigned Detective investigating and processing the case” (People v. Hargrove, 2015 NY Slip Op 51517[U], *8).The People’s semantic quibbling and their reliance on belated evidentiary objections only serve to distract from the critical inquiry in this case: whether the newly discovered evidence would “create a probability” of a more favorable verdict (CPL 440.10[1][g]). The relatively little space that is devoted to this issue in the People’s appellate brief is notable.The People’s contention that the record does not establish that any police misconduct occurred in any other case is without merit. In support of his motion, the defendant provided evidence that Detective Scarcella had engaged in a pattern of falsifying evidence and facilitating false identification testimony during the same time period that he helped procure the identification testimony that was ultimately used to convict the defendant.For instance, as previously noted, the defendant demonstrated that David Ranta had been wrongfully convicted of murder in 1991 based on an investigation by Detective Scarcella and Detective Chmil. That conviction was vacated in 2013, after the witness who identified Ranta at trial was contacted by the Kings County District Attorney’s Office.The defendant submitted an affidavit from the eyewitness in the Ranta case—Menachem Lieberman—who affirmed that before he entered the room to view the lineup, he was told to “‘pick the guy with the big nose.’” Lieberman did not identify Ranta “because [he] recognized him from [the scene of the shooting]… rather it was because he had the biggest nose of the lineup participants.”Lieberman went on to state that “[w]hen [he] later testified at trial, [he] was simply repeating [his] earlier identification from the lineup.” Lieberman “did not recognize the individual in the courtroom, other than previously identifying him in the lineup.” Lieberman explained that he made the false identification because “[he] had an inherent trust in police” and “[he] believed that they must have known something that [he] didn’t.”Also, as previously noted, the defendant relied on the case of Derrick Hamilton. Hamilton was convicted of murder “based upon the trial testimony of the victim’s girlfriend, Jewel Smith” (People v. Hamilton, 115 AD3d at 15), who later recanted her testimony and at Hamilton’s CPL article 440 hearing “claimed that she testified falsely against the defendant because the police threatened her with criminal prosecution and the removal of her children from her custody” (id. at 16).In support of the defendant’s motion, defense counsel attached the notarized letter from Smith. She had been arrested after the victim’s body was found and transported against her will to the 79th Precinct. Smith later stated: “Once I was at the precinct, Detective Scarcella informed me that Derrick ‘Bush’ Hamilton shot [the victim]. And if I wanted to leave the precinct and go home, I had to identify [Hamilton] as the person that committed the crime.”Smith emphasized that “[t]he scenario was explained to [her] in detail by Detective Scarcella.” Once Smith agreed to “follow[ ] his script” she “was released,” just as Detective Scarcella had promised. It is uncontested that after numerous witnesses came forward showing that Hamilton had been at a public function in Connecticut at the time of the murder, his conviction was subsequently vacated.We deem it also noteworthy to reiterate that, at the CPL 440.10 hearing, Detective Scarcella answered affirmatively when asked if he was aware that convictions involving Darryl Austin, Alvena Jennette, and Robert Hill had been overturned by the District Attorney’s Office. He also acknowledged that he had been the “lead detective” on the Hill case and was a detective assigned to the other cases.Detective Scarcella admitted that he used a witness named Theresa Gomez in connection with all three of those cases. Detective Scarcella acknowledged that Gomez’s testimony and his own investigation were “a big part” of the three convictions that were vacated.Detective Scarcella testified that about “five or six” homicide convictions were based on Gomez’s eyewitness testimony. Detective Scarcella confirmed that he “locate[d]” Gomez and that she was “ [his] witness.” He acknowledged that she abused crack cocaine and that he had given her money.Furthermore, at the hearing, Detective Scarcella confirmed that the Kings County District Attorney’s Office had continued the investigation into more than 50 prosecutions which involved his police work. Notably, in their opposition papers, the People represented that the Kings County District Attorney had made a decision “to review all cases in which detective Scarcella was involved.” In her closing remarks, the prosecutor acknowledged that “Detective Scarcella was found to have some kind of issue” in “the Ranta case, [and] the Robert Hill case.”On appeal, however, the People contend that the Supreme Court improperly took “judicial notice” of Detective Scarcella’s malfeasance in the Ranta, Hamilton, Austin, Jennette, and Hill cases. However, the Supreme Court did not take judicial notice of these facts; the court found that they were established in the record. The evidence outlined above, and the inferences to be drawn therefrom, were more than sufficient to support the Supreme Court’s conclusions.The People’s position on this point is not only without merit, it is disingenuous. For although the People are correct that a court should “not take judicial notice of a ‘fact’ which was controverted” (Weinberg v. Hillbrae Bldrs., 58 AD2d 546), the People do not actually deny that Detective Scarcella’s misconduct contributed to the vacatur of the five convictions listed above. In their extended discussion of the subject, the People do not once deny that Detective Scarcella committed misconduct in those cases or otherwise offer to explain why they consented to vacate those other convictions. Nor did the People attempt to counter the defendant’s evidentiary showing with evidence to show that Detective Scarcella did not commit any misconduct in those prior cases.The People additionally argue that the Supreme Court’s “findings regarding Detective Scarcella’s credibility [were] not supported by the record.” This contention also lacks merit.As this Court often states, “[t]he credibility determinations of a hearing court are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record” (People v. Martinez, 58 AD3d 870, 870-871; see People v. Britton, 49 AD3d 893, 894). The Court of Appeals has similarly recognized that “those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record” (People v. Lane, 7 NY3d 888, 890).In this case, the Supreme Court found that much of Detective Scarcella’s testimony at the CPL article 440 hearing was “false, misleading and non-cooperative” (People v. Hargrove, 2015 NY Slip Op 51517[U], *6). He testified that he only recalled the defendant’s case “[t]o some extent.”Detective Scarcella’s claim that his involvement in this investigation was limited and that he did nothing of substance was conclusively disproved by the record evidence. Detective Scarcella’s repeated claim that it was not his case was contradicted by Detective Chmil’s testimony at the suppression hearing that Detective Scarcella was the assigned detective. Detective Scarcella persisted in denying the extent of his involvement even when he was confronted at the hearing with evidence showing his participation.Detective Scarcella’s certainty regarding his lack of involvement in the case, even in the face of contradictory evidence, conflicted with his simultaneous claims that he could not remember anything about it. In fact, at times Detective Scarcella claimed within the same answer both that certain events did not happen and that he could not remember them at all. Furthermore, as the Supreme Court noted, his lack of any recollection about the case was at odds with his testimony that he had discussed the case with Detective Chmil about “a dozen” times over the last two years (id. at *7).The Supreme Court’s finding that Detective Scarcella was “non-cooperative” was also supported by the record (id. at *6). The transcript shows that his answers were evasive and non-responsive. In addition, Detective Scarcella stated that nothing would refresh his recollection about the case even before he was provided with the documents to review. ADA Purce indicated that Detective Scarcella had refused to assist with the CIU’s investigation.Although the Supreme Court, as the fact-finder, could have credited Detective Scarcella’s repeated statements that he could not recall basic aspects of the defendant’s case, it certainly was not required to do so (see e.g. People v. Ianniello, 21 NY2d 418, 427). Indeed, the “false and evasive profession of an inability to recall, which amounts to no answer at all, is punishable as criminal contempt” (People v. Ianniello, 36 NY2d 137, 142; see People v. Schenkman, 46 NY2d 232, 237). Similarly, “a witness who swears falsely, willfully and corruptly to the effect that he [or she] does not remember certain material facts involved in the issue on trial, when in truth they are within his [or her] knowledge and recollection, is guilty of perjury” (People v. Doody, 172 NY 165, 173).As reviewed above, the record in this case supports the Supreme Court’s finding that Detective Scarcella was not being truthful about his role in the investigation or about his memory of the case. The Supreme Court’s credibility finding should be afforded deference as it had the opportunity to see and hear Detective Scarcella testify. Since the Supreme Court’s credibility determination is supported by the record, we decline to disturb it (see People v. Britton, 49 AD3d at 894; see also People v. Martinez, 58 AD3d at 870-871).This Court is vested with “a broad and discretionary power to be exercised in accordance with the conscience of the court and with due regard to the interests of the defendant and those of society” (People v. Ramos, 33 AD2d 344, 348; see People v. Kidd, 76 AD2d 665, 668). “Although [this Court's] ultimate concern should be the interests of justice in this particular case, [this Court's] responsibilities also include a duty to correct any situation which casts a doubt upon the proper functioning of the courts in the administration of justice” (People v. Ramos, 33 AD2d at 348; see People v. Kidd, 76 AD2d at 668).Ultimately, in the context of this appeal, this Court must evaluate the Supreme Court’s factual and discretionary determination to grant the defendant a new trial. Under the circumstances of this case and for the foregoing reasons, we conclude that the Supreme Court providently exercised its discretion in granting the defendant’s motion for a new trial (see CPL 440.10[1][g]). Accordingly, the order is affirmed insofar as appealed from.In reaching this determination, we nevertheless find it appropriate to stress that the vacatur of the defendant’s judgment of conviction is specifically confined to the particular facts of this case, and the result here does not mandate any particular result in future cases involving Detective Scarcella. Each case must be reviewed on its own facts.DILLON, J.P., DUFFY and LASALLE, JJ., concur.ORDERED that the order is affirmed insofar as appealed from.By Rivera, J.P.; Cohen, Miller and Barros, JJ.Philip E. Fortuna, ap, v. Steve Daskawisz, etc., et al., res — (Index No. 11312/11)In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Margaret C. Reilly, J.), dated August 7, 2015, which granted the motion of the defendant Steve Daskawisz for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident, and (2) from so much of an order of the same court dated December 11, 2015, as, upon renewal, adhered to the original determination.ORDERED that the appeal from the order dated August 7, 2015, is dismissed, as that order was superseded by the order dated December 11, 2015, made upon renewal; and it is further,ORDERED that the order dated December 11, 2015, is reversed insofar as appealed from, on the law, and, upon renewal, the order dated August 7, 2015, is vacated, and the motion of the defendant Steve Daskawisz for summary judgment dismissing the complaint insofar as asserted against him is denied; and it is further,ORDERED that one bill of costs is awarded to the plaintiff, payable by the respondents appearing separately and filing separate briefs.Contrary to the Supreme Court’s determination, the plaintiff, in opposition to the defendant Steve Daskawisz’s motion for summary judgment, raised a triable issue as to whether he sustained a serious injury within the meaning of Insurance Law §5102(d) (see Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955, 956-957). Accordingly, upon renewal, the court should have denied the defendant Steve Daskawisz’s motion for summary judgment dismissing the complaint insofar as asserted against him.RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.Sharon Noy, res, v. Isaac Noy, ap — (Index No. 201724/14)In an action for a divorce and ancillary relief, the defendant appeals from stated portions of an order of the Supreme Court, Nassau County (Stacy D. Bennett, J.), dated August 4, 2015. The order, inter alia, granted that branch of the plaintiff’s motion which was for pendente lite relief to the extent of directing the defendant to pay temporary maintenance in the sum of $1,000 per week and temporary child support in the sum of $2,000 per week, and denied that branch of the defendant’s cross motion which was pursuant to CPLR 3211(a)(2) to dismiss the complaint.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff and the defendant were married in 1990 and have five children together. In 2014, the plaintiff commenced this action for a divorce and ancillary relief. Thereafter, the plaintiff moved, inter alia, for an award of temporary maintenance and child support. The defendant cross-moved, among other things, pursuant to CPLR 3211(a)(2) to dismiss the complaint for lack of subject matter jurisdiction, contending that the complaint must be dismissed because the parties are already divorced pursuant to a valid divorce decree granted in Israel. In an order dated August 4, 2015, the Supreme Court, inter alia, granted that branch of the plaintiff’s motion which was for pendente lite relief to the extent of directing the defendant to pay temporary maintenance in the sum of $1,000 per week and temporary child support in the sum of $2,000 per week, and denied that branch of the defendant’s cross motion which was pursuant to CPLR 3211(a)(2) to dismiss the complaint. The defendant appeals.The Supreme Court correctly declined to recognize the divorce granted in Israel. The facts and circumstances of this case demonstrate that the divorce decree granted in Israel was the result of fraud, duress, and deceit practiced by the defendant upon the plaintiff (see Matter of Gotlib v. Ratsutsky, 83 NY2d 696, 699-700; Schaeffer v. Schaeffer, 294 AD2d 420, 421). Therefore, the court was not obligated to extend comity to the divorce granted in Israel (see Schaeffer v. Schaeffer, 294 AD2d at 421; Insanally v. Insanally, 228 AD2d 251, 253), and properly denied that branch of the defendant’s cross motion which was pursuant to CPLR 3211(a)(2) to dismiss the complaint.The Supreme Court did not improvidently exercise its discretion in fixing the amount of temporary maintenance and child support (see Domestic Relations Law §236[B][5-a][c]; [7]). Any perceived inequities in pendente lite maintenance and child support are best remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored (see Caputo v. Caputo, 152 AD3d 643, 645; Rosenstock v. Rosenstock, 149 AD3d 887, 888; Tzu Ching Kao v. Bonalle, 145 AD3d 703, 704; Maksoud v. Maksoud, 71 AD3d 643, 644).The defendant’s remaining contention is improperly raised for the first time on appeal and, therefore, is not properly before this Court (see Johnson v. City of New York, 148 AD3d 1126, 1127; Robles v. Brooklyn-Queens Nursing Home, Inc., 131 AD3d 1032, 1033).MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.Sharon Noy, res, v. Isaac Noy, ap — (Index No. 201724/14)In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Nassau County (Stacy D. Bennett, J.), dated March 2, 2016. The order denied the defendant’s motion for a protective order pursuant to CPLR 3103(a), in effect, to stay disclosure of financial information unless a proposedity agreement relating to financial information obtained in discovery is signed.ORDERED that the order is affirmed, with costs.After the plaintiff commenced this action for a divorce and ancillary relief, the defendant moved for a protective order pursuant to CPLR 3103(a), in effect, to stay disclosure of financial information unless a proposedity agreement relating to financial information obtained in discovery is signed. In an order dated March 2, 2016, the Supreme Court denied the motion. The defendant appeals.Pursuant to CPLR 3103(a), a court may issue a protective order denying, limiting, conditioning, or regulating the use of disclosure devices upon a showing that unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to the parties or others can be prevented by the issuance of such an order. ”‘The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed’” (Spodek v. Neiss, 70 AD3d 810, 810, quoting Mattocks v. White Motor Corp., 258 AD2d 628, 629; see Kaplan v. Herbstein, 175 AD2d 200).Here, the defendant failed to demonstrate unreasonable annoyance, embarrassment, disadvantage, or prejudice to warrant the issuance of a protective order pertaining to the parties’ disclosure of financial information (see CPLR 3103[a]; see generally Cascardo v. Cascardo, 136 AD3d 729, 730). Accordingly, the Supreme Court providently exercised its discretion in denying the defendant’s motion.The defendant’s remaining contention is improperly raised for the first time on appeal and, therefore, is not properly before this Court.MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Mastro, J.P.; Roman, Miller and Connolly, JJ.Wells Fargo Bank, N.A., res, v. Dennis Estwick, appellant def — (Index No. 653/14)In an action to foreclose a mortgage, the defendant Dennis Estwick appeals from a judgment of foreclosure and sale of the Supreme Court, Orange County (Lori Currier Woods, J.), dated April 13, 2015, which, upon an order of the same court dated September 3, 2014, granting the plaintiff’s unopposed motion, inter alia, for summary judgment on the complaint, confirmed a referee’s report and directed the sale of the subject property.ORDERED that the appeal is dismissed except insofar as it brings up for review an order of the same court dated April 13, 2015, which denied the motion of the defendant Dennis Estwick, made jointly with the defendant Aisha Estwick, in effect, to vacate his default in opposing the plaintiff’s motion, inter alia, for summary judgment on the complaint; and it is further,ORDERED that the judgment of foreclosure and sale is affirmed insofar as reviewed; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.The defendant Dennis Estwick (hereinafter the defendant) contends that the Supreme Court’s order dated September 3, 2014, upon which the judgment of foreclosure and sale appealed from was entered, erroneously granted the plaintiff’s motion, inter alia, for summary judgment on the complaint. However, since the defendant failed to oppose that motion, he is not aggrieved by the order granting it and is precluded on appeal from challenging the propriety of that order (see CPLR 5511; Messina v. City of New York, 147 AD3d 748, 748; Xavier Constr. Co., Inc. v. Bronxville Union Free Sch. Dist., 143 AD3d 976, 977; Janiak v. Ewall, 88 AD3d 849, 850; Ponce-Francisco v. Plainview-Old Bethpage Cent. School Dist., 83 AD3d 683, 684).To the extent that the defendant challenges the denial of his motion, made jointly with the defendant Aisha Estwick, in effect, to vacate his default in opposing the plaintiff’s motion for summary judgment, the Supreme Court correctly determined that he failed to make the requisite showing of a reasonable excuse for the default and a potentially meritorious defense (see Nationstar Mtge., LLC v. McLean, 140 AD3d 1131, 1132; Wells Fargo Bank, NA v. Besemer, 131 AD3d 1047, 1049). In this regard, the defendant’s status as a pro se litigant did not warrant vacatur of his default.Contrary to the defendant’s contention, the Supreme Court did not refuse to accept his answer to the complaint. Rather, the record clearly demonstrates that the court accepted and considered the answer.The defendant’s remaining contentions are without merit.MASTRO, J.P., ROMAN, MILLER and CONNOLLY, JJ., concur.By Dillon, J.P.; Miller, Barros and Christopher, JJ.Vadim Anvaer, ap, v. Ludmila Anvaer, res — (Index No. 50143/10)In an action for a divorce and ancillary relief, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Michele M. Woodard, Ct. Atty. Ref.), dated August 25, 2016. The judgment, insofar as appealed from, determined issues of equitable distribution of marital property, and awarded the defendant the principal sum of $294,232.88.ORDERED that the judgment is affirmed insofar as appealed from, with costs.In this divorce action, the Supreme Court referred the matter to a special referee to hear and report with recommendations on the issues of whether (1) a corporate asset located outside of the United States existed; (2) that asset constituted marital property subject to equitable distribution; and (3) such asset was “disposed of or transferred by a party in contemplation of this matrimonial action.” At the evidentiary hearing, the defendant sought to establish that the plaintiff was the director of System and System Corp. (hereinafter the corporation), that the corporation was a marital asset subject to equitable distribution, and that the plaintiff had been secreting the corporation’s assets in order to deprive the defendant of her equitable share of marital property. She introduced evidence that she found in the plaintiff’s possession: the corporation’s corporate stamp and certificate of incorporation. The defendant also presented a letter from FBME Bank, Ltd. (hereinafter the bank), which is located in Cyprus, showing that, as of May 5, 2009, the corporation’s account had a balance of $588,465.75, and bank statements showing that by August 31, 2009, the balance had decreased to $46,705.46.The plaintiff testified that the bank’s letter was sent to him at the behest of a family friend in order to verify the ability of the corporation to complete a short sale of the marital residence, which was in foreclosure. The Special Referee found that the plaintiff’s testimony was not supported by the record, and that he offered no credible evidence to explain why the corporation’s documents and stamp were in his possession. Moreover, the plaintiff admitted that he had sent and received emails on the corporation’s behalf. The defendant presented evidence that the emails listed the plaintiff as the corporation’s “Senior Director.”In the Report and Recommendation After Trial on Framed Issue Hearing, the Special Referee determined that the corporation existed, and that it was marital property subject to equitable distribution. The Special Referee found that the corporation was incorporated in the British Virgin Islands on February 22, 2008, and maintained a bank account at FBME Bank in Cyprus. She determined that the current value of the asset could not be determined, but that the balance in the corporation’s bank account decreased from $588,465.75 on May 8, 2009, to $46,705.46 during the period from August 1, 2009, to August 31, 2009. She further determined that the plaintiff was the director of the corporation, and was secreting the corporate assets to keep them away from the defendant. The Special Referee found that a proposed sale of the marital residence to the plaintiff’s friend for the sum of $250,000, an amount far below the property’s value, supported the defendant’s claim that the sale, including the involvement of the corporation, was a “scheme” to divest the defendant of her interest in the marital residence. The Special Referee’s determination was confirmed by the Supreme Court.Thereafter, the remaining issues relating to equitable distribution were tried before a court attorney referee, who took judicial notice of the prior confirmed determinations of the Special Referee. In her Memorandum Decision, the Court Attorney Referee noted that the Special Referee “already determined that [the corporation] was marital property,” and only left open the issue of the value of the corporation. In determining the corporate value, the Court Attorney Referee relied, in part, upon the plaintiff’s failure to respond to a notice to admit regarding the authenticity of certain FBME Bank documents which reflected the corporation’s value as of May 8, 2009, and that such value, according to the admitted bank records, was $588,465.75. The Court Attorney Referee further determined that the plaintiff intentionally depleted the corporation’s account for purposes of depriving the defendant of that money at a time when the marriage was breaking down and divorce was imminent. She noted that, “[b]ased upon the Plaintiff’s admission, [it] can [be] infer[ed] that the breakdown in the marriage occurred as early as 2006 in the Plaintiff’s mind and that the Plaintiff began depleting assets thereafter.” Under the circumstances, the Court Attorney Referee concluded that the valuation date for the corporation would be May 8, 2009, as the depletion of assets in May 2009 “was not so remote in time” from the filing of the action as to warrant a different conclusion. The judgment, inter alia, awarded the defendant the sum of $294,232.88, representing one-half of the value of the corporation’s account as of May 8, 2009. The plaintiff appeals.“‘As a general rule, courts will not disturb the findings of a referee as long as they are substantially supported by the record and the referee has clearly defined the issues and resolved matters of credibility. A referee’s credibility determinations are entitled to great weight because, as the trier of fact, he or she has the opportunity to see and hear the witnesses and to observe their demeanor’” (Colacino v. Colacino, 152 AD3d 486, 487, quoting Last Time Beverage Corp. v. F & v. Distrib. Co., LLC, 98 AD3d 947, 950). ”‘The trial court is vested with broad discretion in making an equitable distribution of marital property… and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed’” (Gafycz v. Gafycz, 148 AD3d 679, 680, quoting Halley-Boyce v. Boyce, 108 AD3d 503, 504; see Nadasi v. Nadel-Nadasi, 153 AD3d 1346, 1348). In making a determination of equitable distribution, a court may properly consider a finding that a party secreted assets, willfully failed to comply with court orders, or was deliberately evasive during testimony (see Gafycz v. Gafycz, 148 AD3d at 680; Kerley v. Kerley, 131 AD3d 1124, 1126; Coleman v. Coleman, 284 AD2d 426).Here, given the Supreme Court’s credibility determination rejecting the plaintiff’s denial of affiliation with the corporation and its finding that the plaintiff secreted the existence of the corporation and depleted its value at a time when the marriage was breaking down, the court providently exercised its discretion in awarding the defendant the sum of $294.232.88, which was the documented value of the corporation as of May 2009, and was some evidence of the corporate value as of the time of commencement. The Supreme Court’s credibility determinations are entitled to deference, and will not be disturbed under the facts of this case.The plaintiff’s remaining contention is without merit.DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Miller, Barros and Christopher, JJ.JPMorgan Chase Bank, National Association, etc., ap, v. Zhan Hua Cao def, E.R. Holdings, LLC, res — (Index No. 28784/09)In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Marguerite A. Grays, J.), entered January 28, 2016, which denied its motion for summary judgment on the complaint insofar as asserted against the defendant E.R. Holdings, LLC, and dismissing that defendant’s affirmative defenses and counterclaim.ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the plaintiff’s motion which were for summary judgment dismissing the first through fourth, seventh, and ninth affirmative defenses asserted by the defendant E.R. Holdings, LLC, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.The subject property is made up of two lots, designated as Block 5150, Lot 48 and Lot 49, in Flushing, Queens. In 2005, a note and mortgage were executed and delivered to Washington Mutual Bank, FA (hereinafter WAMU). Although the note and the WAMU mortgage referred only to Lot 48, and the WAMU mortgage was recorded only against Lot 48, the metes and bounds description attached to the WAMU mortgage encompassed Lots 48 and 49.In 2008, a note secured by a mortgage against the entire property was executed and delivered to the defendant E.R. Holdings, LLC (hereinafter E.R.). The E.R. mortgage was recorded as a second lien against Lot 48, but as a first lien against Lot 49.JPMorgan Chase Bank, National Association (hereinafter the plaintiff), was the purchaser of the loans and other assets of WAMU from the Federal Deposit Insurance Corporation, acting as receiver for WAMU pursuant to its authority under the Federal Deposit Insurance Act, 12 USC §1821(d). In 2009, the plaintiff commenced this action seeking to foreclose the WAMU mortgage against the entire property, alleging that the original parties to the WAMU mortgage had intended it to cover Lots 48 and 49, but had inadvertently and mistakenly recorded it solely against Lot 48. In its answer, E.R. asserted nine affirmative defenses and a counterclaim for a judgment declaring that E.R. is the holder of a superior, valid first mortgage lien on Lot 49.The plaintiff moved for summary judgment on the complaint insofar as asserted against E.R. and dismissing E.R.’s affirmative defenses and counterclaim. The Supreme Court denied the motion, finding that the plaintiff failed to establish, prima facie, that it was the original parties’ intent that the WAMU mortgage cover both lots.Real Property Law §240(3) provides that an instrument “creating, transferring, assigning or surrendering an estate or interest in real property” must be construed “according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law.” ”Where the language used in [a mortgage] is ambiguous such that it is susceptible of more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances” (Al’s Atl., Inc. v. Shatma, LLC, 109 AD3d 491, 492, citing Cordua v. Guggenheim, 274 NY 51, 57; see Hartmann v. Harris, 136 AD3d 977, 979; Matter of New Cr. Bluebelt, Phase 4, 79 AD3d 888, 891; De Paulis Holding Corp. v. Vitale, 66 AD3d 816, 818).Contrary to the plaintiff’s contention, there is no rule that it is the metes and bounds description that determines what property is encumbered by any mortgage and not the street address or tax lot numbers. Rather, where, as here, there is a conflict between the metes and bounds description and the street address and/or tax lot numbers given in the mortgage, there is an ambiguity that requires consideration of parol evidence (see Matter of New Cr. Bluebelt, Phase 4, 79 AD3d at 891; De Paulis Holding Corp. v. Vitale, 66 AD3d at 818). Here, the WAMU mortgage was “ambiguous on its face,” because “it refer[red] to one lot, but contain[ed] a metes and bounds description” for two lots (Matter of New Cr. Bluebelt, Phase 4, 79 AD3d at 891; see De Paulis Holding Corp. v. Vitale, 66 AD3d at 818). In support of its motion for summary judgment, the plaintiff failed to submit evidence resolving that ambiguity one way or the other. The affidavit of its expert was based on purported “assumed facts” that were neither assumed by E.R. nor supported by the evidence. Since the expert affidavit submitted by the plaintiff contained conclusory assertions unsupported by evidentiary facts (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325), and the plaintiff failed to submit any other evidence establishing, prima facie, that the parties to the WAMU mortgage intended it to cover both lots, a triable issue of fact remained regarding that issue. Accordingly, the Supreme Court properly denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against E.R. and dismissing E.R.’s counterclaim and eighth affirmative defense.However, the Supreme Court erred in denying those branches of the plaintiff’s motion which were for summary judgment dismissing E.R.’s first through fourth, seventh, and ninth affirmative defenses. The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law striking the first through fourth, seventh, and ninth affirmative defenses, and E.R. failed to raise a triable issue of fact in opposition (see Katz v. Miller, 120 AD3d 768, 769-770; see also Becher v. Feller, 64 AD3d 672, 677; Cohen Fashion Opt., Inc. v. V & M Opt., Inc., 51 AD3d 619, 619-620).The plaintiff’s remaining contentions are without merit.DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Leventhal, Hinds-Radix and Maltese, JJ.PEOPLE, etc., res, v. Paul Gregory, ap — (Ind. No. 8801/12)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered November 5, 2014, convicting him of murder in the second degree, attempted murder in the second degree, and criminal possession of a weapon 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 defendant’s contention that the Supreme Court abdicated its judicial function by allowing prospective jurors who concluded that they could not be fair and impartial to opt out of serving on the jury without further inquiry is unpreserved for appellate review (see CPL 470.05[2]; People v. King, 27 NY3d 147, 157; People v. Santos, 150 AD3d 1270, 1271; People v. Cunningham, 119 AD3d 601, 601; People v. McGhee, 4 AD3d 485, 485) and, in any event, without merit.The defendant’s contention, raised in his pro se supplemental brief, that the photo array and lineup identification procedures were unduly suggestive is unpreserved for appellate review, since, at the Wade hearing (see United States v. Wade, 388 US 218), he failed to raise the specific grounds upon which he now challenges the procedures (see CPL 470.05[2]; People v. Martin, 116 AD3d 981, 982; People v. Fields, 66 AD3d 799, 799). In any event, the People established in the first instance that the pretrial identification procedures were not improper, and the defendant failed to establish that they were unduly suggestive (see People v. Chipp, 75 NY2d 327, 335-336; People v. Martin, 116 AD3d at 982).Additionally, contrary to the defendant’s contention, raised in his pro se supplemental brief, the jury’s verdict was not against the weight of the evidence. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348-349), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).Further, the defendant’s contention, raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel is without merit (see People v. Porter, 119 AD3d 438, 439). The defendant received effective assistance of counsel under the state and federal standards (see People v. Benevento, 91 NY2d 708, 713-714; People v. Leach, 137 AD3d 1300, 1302; see also Strickland v. Washington, 466 US 668, 700). He failed to demonstrate that his attorney’s decision not to present certain evidence or elicit testimony about the alleged shooter in an unrelated incident had any reasonable possibility of affecting the outcome or depriving him of a fair trial (see Strickland v. Washington, 466 US at 691).BALKIN, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur.By Dillon, J.P.; Miller, Barros and Christopher, JJ.Ilan Cohen, res, v. Tamara Cohen, ap — (Index No. 202619/11)In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Nassau County (Jeffrey A. Goodstein, J.), dated November 7, 2016. The order denied the defendant’s motion for an award of an interim attorney’s fee.ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the defendant’s motion for an award of an interim attorney’s fee is granted to the extent of awarding her an interim attorney’s fee in the sum of $30,000, subject to reallocation after trial if deemed appropriate by the Supreme Court.The parties were married in 2000 and are the parents of three unemancipated children. In 2011, the plaintiff commenced this action for a divorce and ancillary relief. The plaintiff moved to disqualify the law firm representing the defendant in this action, and by order dated September 26, 2012, the Supreme Court denied the motion. The plaintiff appealed from that order, and the defendant moved for an award of appellate counsel fees in the sum of $13,000 to defend against the plaintiff’s appeal.In 2013, the plaintiff moved for a schedule of parenting time with the children, and the defendant cross-moved for an award of an interim attorney’s fee. In her cross motion, the defendant asserted that she was a homemaker with no steady income. By order dated July 15, 2013, the Supreme Court found that the plaintiff, a self-employed real estate developer, was the monied spouse and awarded the defendant $30,000 as an interim attorney’s fee. The court noted that in opposition to the defendant’s cross motion, the plaintiff alleged that the defendant was employed throughout the marriage but failed to provide any evidence regarding her income and failed to file a statement of net worth. The plaintiff appealed from the order dated July 15, 2013, and this Court affirmed the order insofar as appealed from (see Cohen v. Cohen, 134 AD3d 881). By order dated August 19, 2013, the Supreme Court granted the defendant’s motion for an award of appellate counsel fees in the sum of $13,000 to defend against the plaintiff’s appeal from the order dated September 26, 2012.In 2015, the defendant moved for pendente lite relief, including an award of an interim attorney’s fee in the sum of $100,000. By order dated April 24, 2015, the Supreme Court granted that branch of the defendant’s motion which was for an award of an interim attorney’s fee to the extent of awarding her the sum of $50,000. In that order, the court noted that the plaintiff had not yet paid the defendant’s $13,000 appellate counsel fee award. It also noted that a judgment had been entered by the Nassau County Clerk in the sum of $30,331.92, reflecting the plaintiff’s failure to pay the $30,000 interim attorney’s fee award from July 2013. By order dated April 6, 2016, the court, upon the defendant’s motion, awarded her an interim attorney’s fee in the sum of $10,000. In September 2016, the defendant moved for an award of an interim attorney’s fee in the sum of $34,392.50. The motion was supported, inter alia, by the affidavit of the defendant’s new attorney indicating that he had been retained on September 9, 2016, and that he required payment of a $30,000 retainer. The plaintiff opposed the motion but failed to provide an updated statement of net worth. By order dated November 7, 2016, the court denied the motion. The defendant appeals from that order.“The Domestic Relations Law provides that, in an action for divorce, ‘the court may direct either spouse… to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties’” (Prichep v. Prichep, 52 AD3d 61, 64, quoting Domestic Relations Law §237[a]). ”‘The decision to award an attorney’s fee lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court’” (Peritore v. Peritore, 50 AD3d 874, 874-875, quoting Burger v. Holzberg, 290 AD2d 469, 471). An award of interim counsel fees “is designed to redress the economic disparity between the monied spouse and the non-monied spouse” (O’Shea v. O’Shea, 93 NY2d 187, 190), and “ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse” (Prichep v. Prichep, 52 AD3d at 65; see Shakil v. Rehman, 134 AD3d 1093; Witter v. Daire, 81 AD3d 719, 720; Amante v. Amante, 78 AD3d 622). The issue of interim counsel fees is controlled by the equities of the case and the financial circumstances of the parties, and such fees will generally be warranted where there is a significant disparity in the parties’ financial circumstances (see Dunleavy v. Dunleavy, 125 AD3d 832, 833; Carlin v. Carlin, 120 AD3d 734, 735; Palmeri v. Palmeri, 87 AD3d 572).Here, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion made in September 2016 for an award of an interim attorney’s fee. Considering all of the relevant factors, including the parties’ relative circumstances, the disparity in their respective incomes, the plaintiff’s failure to pay the earlier interim counsel fee awards, and his failure to file an updated statement of net worth, we find, in the exercise of discretion, that an award of an attorney’s fee in the sum of $30,000 is appropriate, subject to reallocation after trial if deemed appropriate by the court (see Shakil v. Rehman, 134 AD3d 1093; Dunleavy v. Dunleavy, 125 AD3d 832; Amante v. Amante, 78 AD3d 622; Prichep v. Prichep, 52 AD3d 61).DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Leventhal, Hinds-Radix and Maltese, JJ.MATTER of Michele Mangino, etc., res, v. Town of Mamaroneck ap — (Index No. 63043/16)In a proceeding pursuant to General Municipal Law §50-e(5) for leave to serve a late notice of claim, the Town of Mamaroneck and the Town of Mamaroneck Ambulance District appeal from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated October 26, 2016. The order granted the petition.ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the petition is denied, and the proceeding is dismissed.On July 20, 2015, the petitioner’s decedent, Rudolfo Mangino, was transported by ambulance from the nursing home in which he resided to a hospital, where he was treated and pronounced dead on the same day. The ambulance was operated by the Town of Mamaroneck and the Town of Mamaroneck Ambulance District (hereinafter together the appellants). On July 28, 2015, the petitioner retained counsel to investigate her complaints and to commence an action against the nursing home, if deemed appropriate. On May 26, 2016, the petitioner was appointed administrator of Mangino’s estate. A summons and complaint dated June 30, 2016, alleged causes of action sounding in negligence, medical malpractice, and violations of Public Health Law §2801-d against the nursing home. By order to show cause and petition dated September 27, 2016, the petitioner sought leave to serve the appellants with a late notice of claim to commence an action to recover damages for personal injuries, conscious pain and suffering, mental anguish, and wrongful death. The Supreme Court granted the petition.In determining whether to grant leave to serve a late notice of claim, the court must consider several factors, including, most importantly, whether the public corporation “acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one [within 90 days after the claim arose] or within a reasonable time thereafter” (General Municipal Law §50-e[5]; see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147). In the context of a claim alleging wrongful death, the issue regarding actual knowledge is whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days after the appointment of a representative of the decedent’s estate (see General Municipal Law §50-e[1][a]; [5]; Matter of Kerner v. County of Nassau, 150 AD3d 1234, 1236; Se Dae Yang v. New York City Health & Hosps. Corp., 140 AD3d 1051, 1052). Other factors include whether the petitioner provided a reasonable excuse for the failure to serve a timely notice of claim, the claimant died before the time limited for service of the notice of claim, and the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits (see General Municipal Law §50-e[5]; Williams v. Nassau County Med. Ctr., 6 NY3d 531, 535, 539; Matter of Billman v. Port Jervis School Dist., 84 AD3d 1367, 1369; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d at 147, 150; Centelles v. New York City Health & Hosps. Corp., 84 AD2d 826, 826-827).The petitioner failed to provide a reasonable excuse for her failure to serve a timely notice of claim. The failure of the petitioner and her attorneys to review the medical records and ascertain a claim against the appellants in a timely manner is not an acceptable excuse (see Kelly v. City of New York, 153 AD3d 1388; Matter of Maggio v. City of New York, 137 AD3d 1282, 1283; Matter of Placido v. County of Orange, 112 AD3d 722, 723-724; Matter of Moore v. New York City Hous. Auth., 89 AD3d 1088).Furthermore, the petitioner failed to submit evidence establishing that the appellants acquired actual knowledge of the facts constituting the claims within 90 days or a reasonable time thereafter. The petitioner provided no records or documentation in support of the petition demonstrating such actual knowledge on the part of the appellants (see Matter of Ruiz v. City of New York, 154 AD3d 945, 946; Matter of Hamilton v. City of New York, 145 AD3d 784; Matter of Rivera v. City of New York, 88 AD3d 1004, 1005). The notice of claim was served on the appellants together with the petition more than 1 month after the 90-day statutory period applicable to the wrongful death claim had elapsed and 11 months after the 90-day statutory period applicable to the remaining claims had elapsed. This service occurred too late to provide the appellants with actual knowledge of the essential facts constituting the claims within a reasonable time after the expiration of the applicable statutory period (see Matter of Murray v. Village of Malverne, 118 AD3d 798, 799; Matter of Sanchez v. City of New York, 116 AD3d 703, 704; Matter of Valila v. Town of Hempstead, 107 AD3d 813, 815).Inasmuch as the petitioner failed to present any evidence or plausible argument that the appellants have not been substantially prejudiced by the delay, the appellants never became required to make “a particularized evidentiary showing” that they were substantially prejudiced (Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 467; see Matter of A.C. v. West Babylon Union Free Sch. Dist., 147 AD3d 1047, 1048).Accordingly, the petition should have been denied and the proceeding dismissed.BALKIN, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur.By Mastro, J.P.; Roman, Sgroi and Cohen, JJ.Diane Edgerton, plf, v. City of New York def, MTA Bus Company defendants third-party plaintiffs-ap; Rosalba Jesse-Allen, et al., third-party defendants-respondents third-party def — (Index No. 12214/12)In an action to recover damages for personal injuries, the defendants third-party plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), dated July 8, 2016, as granted that branch of the motion of the third-party defendants Rosalba Jesse-Allen and Sherman F. Allen which was for summary judgment dismissing the third-party complaint insofar as asserted against them and, upon searching the record, awarded summary judgment to the plaintiffs on the issue of liability against the defendants third-party plaintiffs.ORDERED that the order is affirmed insofar as appealed from, with costs.On May 25, 2011, between 7:45 and 8:00 a.m., the plaintiff allegedly sustained personal injuries when she was involved in a three-vehicle accident in Queens. The plaintiff was a passenger in a vehicle operated by the third-party defendant Rosalba Jesse-Allen and owned by the third-party defendant Sherman F. Allen. According to the plaintiff and Jesse-Allen, prior to the incident, the vehicle operated by Jesse-Allen came to a stop behind a vehicle operated by the third-party defendant Habib Shiraz-Sutar without striking it. Shortly thereafter, the vehicle operated by Jesse-Allen was hit in the rear by a bus owned by the defendant third-party plaintiff MTA Bus Company and operated by the defendant third-party plaintiff Shamsundar Baichoo. As a result of the impact, the vehicle operated by Jesse-Allen was pushed into the rear of the vehicle operated by Habib Shiraz-Sutar, which allegedly was stopped for a red traffic light. The plaintiff commenced this action against, among others, MTA Bus Company and Baichoo (hereinafter together the appellants). The appellants commenced a third-party action against Jesse-Allen, Allen, and Habib Shiraz-Sutar. Jesse-Allen and Allen (hereinafter together the respondents) moved for summary judgment dismissing the third-party complaint insofar as asserted against them, contending that Baichoo’s negligent operation of the bus was the sole proximate cause of the accident. The Supreme Court granted the motion, and, upon searching the record, awarded summary judgment to the plaintiff on the issue of liability against the appellants.A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rearmost vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Perez v. Roberts, 91 AD3d 620, 621; Smith v. Seskin, 49 AD3d 628, 629). Here, the respondents established their entitlement to judgment as a matter of law by demonstrating, prima facie, that their vehicle was fully stopped for the traffic condition ahead when it was hit in the rear by the bus operated by Baichoo (see Hanakis v. DeCarlo, 98 AD3d 1082, 1083; Perez v. Roberts, 91 AD3d at 621; Hauser v. Adamov, 74 AD3d 1024, 1025; Smith v. Seskin, 49 AD3d at 629). In opposition, the the appellants failed to raise a triable issue of fact. The appellants’ assertion that the vehicle that Jesse-Allen was operating made a sudden stop, in and of itself, was insufficient to raise a triable issue of fact as to whether there was a nonnegligent explanation for the collision (see Brothers v. Bartling, 130 AD3d 554, 556; Le Grand v. Silberstein, 123 AD3d 773, 775; Hakakian v. McCabe, 38 AD3d 493). Accordingly, the Supreme Court properly granted that branch of the respondents’ motion which was for summary judgment dismissing the third-party complaint insofar as asserted against them.Contrary to the appellants’ contention, the Supreme Court properly searched the record and awarded summary judgment to the plaintiff on the issue of liability against them. The issue of whether the plaintiff contributed to the happening of the accident was before the court on the respondents’ motion for summary judgment (see Dunham v. Hilco Constr. Co., 89 NY2d 425, 430), and the evidence showed that the plaintiff was an innocent passenger who did not engage in any culpable conduct that contributed to the happening of the accident (see Choi v. Schwabenbauer, 124 AD3d 574, 575; Anzel v. Pistorino, 105 AD3d 784, 785; Medina v. Rodriguez, 92 AD3d 850). In any event, to be entitled to summary judgment on the issue of liability, a plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case (see Rodriguez v. City of New York (2018 NY Slip Op 02287 [Apr. 3, 2018]).MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Citimortgage, Inc., etc., res, v. Dorothy Bredehorn, appellant def — (Index No. 687/14)Christopher Thompson, West Islip, NY, for appellant.David A. Gallo & Associates, LLP, Rego Park, NY (Jonathan M. Cohen of counsel), for respondent.In an action to foreclose a mortgage, the defendant Dorothy Bredehorn appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated April 27, 2015. The order (1) granted that branch of the plaintiff’s motion which was, in effect, for leave to renew its prior motion to amend the caption by substituting Federal National Mortgage Association as the plaintiff and, upon renewal, granted the prior motion, and (2) granted that branch of the plaintiff’s motion which was to amend the caption to omit George Bredehorn as a defendant.ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and the plaintiff’s motion is denied.In October 2007, the defendant Dorothy Bredehorn (hereinafter the appellant) and her husband, the defendant George Bredehorn, executed a promissory note in the sum of $356,000 encumbering real property located in Amityville. The Bredehorns defaulted on the loan by failing to make the monthly installment payment due December 1, 2009. George Bredehorn died on December 21, 2012. In January 2014, the plaintiff commenced this action to foreclose the mortgage against the appellant and George Bredehorn, and any other persons or entities claiming an interest in the property.In August 2014, the plaintiff moved to amend the caption to substitute Federal National Mortgage Association (hereinafter FNMA) as the plaintiff. In November 2014, the Supreme Court denied the plaintiff’s motion with leave to renew upon a proper substitution pursuant to CPLR 1021 for the deceased party, George Bredehorn. In December 2014, the plaintiff, in effect, moved for leave to renew its prior motion to amend the caption to substitute FNMA as the plaintiff and to amend the caption to omit George Bredehorn as a party defendant. The Supreme Court granted the plaintiff’s motion. We reverse.The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was, in effect, for leave to renew its prior motion to amend the caption by substituting FNMA as the plaintiff and, upon renewal, granting the prior motion. Although the plaintiff submitted evidence that the mortgage was assigned to FNMA, there was no evidence in admissible form of an assignment of the note or a transfer of possession of the note to FNMA. The only evidence offered by the plaintiff that the note had in fact been transferred to FNMA was the statement in the plaintiff’s attorney’s affirmation that “based on telephonic conversations,” the attorney had been advised that FNMA was the holder of the note as of February 1, 2014. This statement is inadmissible hearsay (see Citicorp Mtge. v. Adams, 153 AD3d 779, 780; Aurora Loan Servs., LLC v. Mandel, 148 AD3d 965, 966; Brighton BK, LLC v. Kurbatsky, 131 AD3d 1000, 1001; Aurora Loan Servs., LLC v. Lopa, 130 AD3d 952, 952-953; Hypo Holdings, Inc. v. Feuer, 68 AD3d 722).Further, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was to omit George Bredehorn from the caption. The plaintiff did not establish that George Bredehorn died intestate, move to substitute a representative for George Bredehorn’s estate as a defendant, move to discontinue the action insofar as asserted against him, or represent that it would not seek a deficiency judgment against his estate. In light of the plaintiff’s failure to take any one of those actions, the action against George Bredehorn was not extinguished (see U.S. Bank N.A. v. Esses, 132 AD3d 847, 848; CPLR 1015[a]).Accordingly, the plaintiff’s motion should have been denied.CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.MATTER of Calverton Manor, LLC, ap, v. Town of Riverhead res — (Index No. 5582/04)In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a resolution of the Town Board of the Town of Riverhead adopting a Comprehensive Plan for the Town of Riverhead, and action for declaratory relief, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (William B. Rebolini, J.), dated July 15, 2014, which denied its motion for summary judgment on the petition/complaint, denied the petition, in effect, dismissed the proceeding, and declared that the Comprehensive Plan is a legal, constitutional, and valid exercise of the police and zoning powers of the respondent/defendant Town Board of the Town of Riverhead.ORDERED that the order and judgment is affirmed, with costs.The petitioner/plaintiff (hereinafter the petitioner) submitted a site plan application in 2001 to construct numerous commercial and residential buildings on an undeveloped parcel of land in the respondent/defendant Town of Riverhead (hereinafter the Town). The petitioner worked with Town officials to revise the site plan application to bring it into compliance with then-applicable zoning rules. Meanwhile, since 1997 the respondent/defendant Town Board of the Town of Riverhead (hereinafter the Town Board) had been in the process of developing a new Comprehensive Plan (hereinafter the Comprehensive Plan) for the Town. The “goals and policies” of the Comprehensive Plan included “protect[ing] open space and farmland, while concentrating development” into certain specified areas. The Comprehensive Plan proposed eliminating certain permitted uses on the petitioner’s parcel critical to the site plan application. The petitioner submitted its last revised site plan application in September 2003. While that application was still pending, the Town Board adopted the Comprehensive Plan on November 3, 2003.The petitioner commenced several related hybrid proceedings/actions against the Town and the Town Board (hereinafter together the respondents) in the Supreme Court, Suffolk County. The instant hybrid proceeding/action challenges the Town Board’s adoption of the Comprehensive Plan.The petitioner moved for summary judgment on the petition/complaint, arguing, among other things, that the Town Board failed to comply with General Municipal Law §239-m and Town Law §272-a, failed to comply with the procedural and substantive requirements of the State Environmental Quality Review Act (see ECL art 8; hereinafter SEQRA), and exceeded its zoning powers. The Supreme Court denied the motion, denied the petition, in effect, dismissed the proceeding, and declared that the Comprehensive Plan is a legal, constitutional, and valid exercise of the police and zoning powers of the Town Board. The petitioner appeals, and we affirm.Contrary to the petitioner’s contention, the Town Board made a proper referral of the Comprehensive Plan to the Suffolk County Planning Commission. Prior to adopting a comprehensive plan, a town board must “refer the proposed comprehensive plan or any amendment thereto to the county planning board or agency or regional planning council for review and recommendation as required by” General Municipal Law §239-m (Town Law §272-a[5][b]). General Municipal Law §239-m, in turn, requires a town to “submit to the county planning agency a ‘full statement of such proposed action’” (Matter of 24 Franklin Ave. R.E. Corp. v. Heaship, 139 AD3d 742, 744, quoting General Municipal Law §239-m[1][c]). Here, contrary to the petitioner’s contentions, the revisions made to the Comprehensive Plan after the referral were “‘embraced within the original referral’” such that the Town Board did not fail to make a full statement of its proposed action (Matter of Village of Kiryas Joel, N.Y. v. Village of Woodbury, N.Y., 138 AD3d 1008, 1012, quoting Matter of Benson Point Realty Corp v. Town of E. Hampton, 62 AD3d 989, 992; see Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 NY2d 668, 678-679).We agree with the Supreme Court that the Town Board complied with the procedural and substantive requirements of SEQRA. First, “‘SEQRA mandates literal compliance with its procedural requirements and substantial compliance is insufficient to discharge the responsibility of the agency under the act’” (Matter of Village of Kiryas Joel, N.Y. v. Village of Woodbury, N.Y., 138 AD3d at 1011, quoting Matter of East End Prop. Co. #1, LLC v. Kessel, 46 AD3d 817, 820). The petitioner here failed to identify any procedural requirement that the Town Board violated in adopting the Comprehensive Plan. In particular, the Town Board did not improperly segment environmental review by adopting the Comprehensive Plan separately from the zoning amendments implementing it. The draft and final generic environmental impact statements (hereinafter the draft and final GEISs) explicitly analyzed the expected cumulative impacts of the Town Board enacting zoning amendments consistent with the proposals in the Comprehensive Plan.Second, “‘[j]udicial review of an agency determination under SEQRA is limited to whether the agency procedures were lawful and whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination’” (Matter of Village of Kiryas Joel, N.Y. v. Village of Woodbury, 138 AD3d at 1011, quoting Matter of Falcon Group Ltd. Liab. Co. v. Town/Village of Harrison Planning Bd., 131 AD3d 1237, 1239). ”The agency decision should be annulled only if it is arbitrary, capricious, or unsupported by the evidence” (Matter of Falcon Group Ltd. Liab. Co. v. Town/Village of Harrison Planning Bd., 131 AD3d at 1329; see Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d 219, 231-232). Here, the Town Board complied with the substantive requirements of SEQRA. Most notably, the draft and final GEISs discussed mitigation measures, reasonable alternatives to the proposed action, and specific conditions under which future actions will be undertaken or approved in the appropriate level of detail (see 6 NYCRR 617.10; Matter of Eadie v. Town Bd. of Town of N. Greenbush, 7 NY3d 306, 319; Matter of Rusciano & Son. Corp. v. Kiernan, 300 AD2d 590, 592). The draft and final GEISs also contained the appropriate level of detail (see 6 NYCRR 617.10[a], [c]).The petitioner failed to demonstrate that the Town Board otherwise violated Town Law §272-a in crafting or adopting the Comprehensive Plan (see Town Law §272-a[5][b]; [6][b]; [8], [10], [12]).Contrary to the petitioner’s contention, the Comprehensive Plan is a legal, constitutional, and valid exercise of the police and zoning powers of the Town Board. ”Legislative enactments are entitled to an ‘exceedingly strong presumption of constitutionality’” (Nicholson v. Incorporated Vil. of Garden City, 112 AD3d 893, 894, quoting Lighthouse Shores v. Town of Islip, 41 NY2d 7, 11). ”A local law is cloaked with the same strong presumption of constitutionality as a statute” (Nicholson v. Incorporated Vil. of Garden City, 112 AD3d at 894; see Town of Huntington v. Park Shore Country Day Camp of Dix Hills, 47 NY2d 61, 65). ”With the police power as the predicate for the State’s delegation of municipal zoning authority, a zoning ordinance will be struck down if it bears no substantial relation to the police power objective of promoting the public health, safety, morals or general welfare” (Trustees of Union Coll. in Town of Schenectady in State of N.Y. v. Members of Schenectady City Council, 91 NY2d 161, 165; see Berenson v. Town of New Castle, 38 NY2d 102, 107-108).Here, the Comprehensive Plan’s proposed designation of a largely contiguous swath of cultivated and undeveloped land as an agricultural protected zone bore a rational relationship to numerous legitimate purposes, including, but not limited to, the preservation and promotion of agriculture (see Agriculture and Markets Law §§3, 300), the preservation of “agricultural integrity” (Schlossin v. Town of Marilla, 48 AD3d 1118, 1120), and preservation of the Town’s rural aesthetics and character (see Matter of Wallach v. Town of Dryden, 23 NY3d 728, 743; Modjeska Sign Studios v. Berle, 43 NY2d 468, 478; Curtiss-Wright Corp. v. Town of E. Hampton, 82 AD2d 551, 556). Likewise, the petitioner’s contention that the Comprehensive Plan’s goal of promoting agriculture exceeded the Town Board’s zoning powers is meritless (see Agriculture and Markets Law §§3, 300).The petitioner’s remaining contentions are either without merit or are improperly raised for the first time in its reply brief (see U.S. Bank N.A. v. Dellarmo, 128 AD3d 680, 681).DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.MATTER of Calverton Manor, LLC, appellant- res, v. Town of Riverhead respondents- ap — (Index No. 25551/04)In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review zoning resolutions of the respondent/defendant Town Board of the Town of Riverhead dated June 22, 2004, in effect, implementing a new agricultural protection zoning district for the respondent/defendant Town of Riverhead, and action for declaratory relief, the petitioner/plaintiff appeals from an order of the Supreme Court, Suffolk County (William B. Rebolini, J.), dated July 15, 2014, which denied its motion for summary judgment on the petition/complaint and denied so much of the petition as sought to annul the zoning resolutions, and the respondents/defendants cross-appeal from so much of the same order as did not search the record and award them summary judgment and, in effect, make a declaration in their favor, on the petitioner/plaintiff’s second cause of action.ORDERED that the cross appeal is dismissed, without costs or disbursements; and it is further,ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The petitioner/plaintiff (hereinafter the petitioner) submitted a site plan application in 2001 to construct numerous commercial and residential buildings on an undeveloped parcel of land in the respondent/defendant Town of Riverhead (hereinafter the Town). The petitioner worked with Town officials to revise the site plan application to bring it into compliance with then-applicable zoning rules. Meanwhile, since 1997 the respondent/defendant Town Board of the Town of Riverhead (hereinafter the Town Board) had been in the process of developing a new Comprehensive Plan (hereinafter the Comprehensive Plan) for the Town. The “goals and policies” of the Comprehensive Plan included “protect[ing] open space and farmland, while concentrating development” into certain specified areas. The Comprehensive Plan proposed eliminating certain permitted uses on the petitioner’s parcel critical to the site plan application. The petitioner submitted its last revised site plan application in September 2003. While that application was still pending, the Town Board adopted the Comprehensive Plan on November 3, 2003.The petitioner commenced several related hybrid proceedings/actions against the Town and the Town Board (hereinafter together the respondents) in the Supreme Court, Suffolk County. The instant hybrid proceeding/action challenges the Town Board’s adoption of zoning amendments implementing the Agricultural Protection Zone component of the Comprehensive Plan (hereinafter the APZ law). The APZ law affected part of the property subject to the petitioner’s site plan application.The petitioner moved for summary judgment on the petition/complaint, arguing, among other things, that the Town Board failed to comply with General Municipal Law §239-m and Town Law §272-a, failed to comply with the procedural and substantive requirements of the State Environmental Quality Review Act (see ECL art 8; hereinafter SEQRA), failed to comply with the Comprehensive Plan, violated the doctrine of legislative equivalence, and exceeded its zoning powers. The petitioner’s second cause of action sought a declaration that “special facts” entitled it to have its site plan application reviewed in accordance with the zoning designation in effect prior to the Town Board’s adoption of the Comprehensive Plan.The Supreme Court denied the motion. The court held that the respondents were entitled to the entry of judgment in their favor declaring the zoning resolutions at issue to be a legal, constitutional, and valid exercise of the police and zoning powers of the Town Board. The court further held that triable issues of fact existed with respect to the applicability of special facts. The petitioner appeals, and the respondents cross-appeal from so much of the order as did not search the record and award them summary judgment and, in effect, make a declaration in their favor, on the petitioner’s second cause of action. We dismiss the cross appeal and affirm the order insofar as appealed from.A party is not aggrieved by an order which does not grant relief that the party did not request (see Spielman v. Mehraban, 105 AD3d 943, 943-944; Schlecker v. Yorktown Elec. & Light. Distribs., Inc., 94 AD3d 855, 855). The respondents are not aggrieved by so much of the order as did not search the record and award them summary judgment and, in effect, make a declaration in their favor, on the petitioner’s second cause of action (see Schlecker v. Yorktown Elec. & Light. Distribs., Inc., 94 AD3d 855, 855).Contrary to the petitioner’s contention, the Town Board made a proper referral of the APZ law to the Suffolk County Planning Commission (hereinafter the Planning Commission). “‘To facilitate regional review of amendments to a local zoning ordinance, General Municipal Law §239-m requires the local municipality to refer its proposed amendments to the county planning board’” (Matter of Village of Kiryas Joel, N.Y. v. Village of Woodbury, N.Y., 138 AD3d 1008, 1012, quoting Matter of Benson Point Realty Corp v. Town of E. Hampton, 62 AD3d 989, 991). Here, upon the Town Board’s referral to the Planning Commission, the Planning Commission processed the referral, held a hearing, voted, and reported its recommendations to the Town Board. There is no evidence in the record that the Planning Commission determined the Town Board’s referral to be deficient in any respect. Under the circumstances presented here, the Town Board made a “full statement” of its proposed APZ law in accordance with General Municipal Law §239-m (see General Municipal Law §239-m[1][c]). Moreover, the revisions made to the APZ law after referral were “‘embraced within the original referral’” (Matter of Village of Kiryas Joel, N.Y. v. Village of Woodbury, 138 AD3d at 1012, quoting Matter of Benson Point Realty Corp. v. Town of E. Hampton, 62 AD3d at 992; see Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 NY2d 668, 679).We agree with the Supreme Court that the Town Board complied with the procedural and substantive requirements of SEQRA in adopting the APZ law. When a final generic environmental impact statement (hereinafter EIS) has been filed, no further SEQRA compliance is required if a subsequent proposed action will be carried out in conformance with the conditions and thresholds established for such actions in the generic EIS or its findings statement (see 6 NYCRR 617.10[d][1]; Matter of In Defense of Animals v. Vassar Coll., 121 AD3d 991, 994). Here, the Town Board accepted a draft and a final generic EIS in connection with the Comprehensive Plan. The APZ law faithfully implemented the agricultural components of the Comprehensive Plan and thereby satisfied the conditions and thresholds for future actions set forth in the draft and final generic EISs. The Town Board’s reliance on the generic EISs prepared in connection with the Comprehensive Plan therefore satisfied the procedural and substantive requirements of SEQRA (see 6 NYCRR 617.10[d]; Matter of Eadie v. Town Bd. of Town of N. Greenbush, 7 NY3d 306, 319; Matter of Danyla v. Town Bd. of Town of Florida, 259 AD2d 850, 851-853). Moreover, the petitioner failed to identify a clear conflict between the APZ law and the Comprehensive Plan (see Nicholson v. Incorporated Vil. of Garden City, 112 AD3d 893, 894-895).“The doctrine of legislative equivalency requires that existing legislation be amended or repealed by the same procedure as was used to enact it” (JEM Realty Co. v. Town Bd. of Town of Southold, 297 AD2d 278, 279; see Naftal Assoc. v. Town of Brookhaven, 221 AD2d 423, 424-425). “The doctrine applies to attempts to amend a zoning code or ordinance by use of a resolution” (Matter of Brunswick Smart Growth, Inc. v. Town Bd. of Town of Brunswick, 51 AD3d 1119, 1120; see Paradis v. Town of Schroeppel, 289 AD2d 1027, 1028). Here, the petitioner failed to demonstrate that the Town Board improperly amended its zoning map using a different type of legislative action than it used to effectuate its previous zoning map (see Matter of Miller v. Kozakiewicz, 289 AD2d 494, 495).Furthermore, we agree with the Supreme Court that the respondents were entitled to a judgment declaring that the APZ law was a constitutional and valid exercise of the Town Board’s zoning and police powers. ”Legislative enactments are entitled to an ‘exceedingly strong presumption of constitutionality’” (Nicholson v. Incorporated Vil. of Garden City, 112 AD3d 893, 894, quoting Lighthouse Shores v. Town of Islip, 41 NY2d 7, 11). ”A local law is cloaked with the same strong presumption of constitutionality as a statute” (Nicholson v. Incorporated Vil. of Garden City, 112 AD3d at 894; see Town of Huntington v. Park Shore County Day Camp of Dix Hills, 47 NY2d 61, 65). ”With the police power as the predicate for the State’s delegation of municipal zoning authority, a zoning ordinance will be struck down if it bears no substantial relation to the police power objective of promoting the public health, safety, morals or general welfare” (Trustees of Union Coll. in Town of Schenectady in State of N.Y. v. Members of Schenectady City Council, 91 NY2d 161, 165; see Berenson v. Town of New Castle, 38 NY2d 102, 107-108).Here, the restriction by the APZ law of a largely contiguous swath of cultivated and undeveloped land to agricultural and low-density residential uses bore a rational relationship to numerous legitimate purposes, including but not limited to the preservation and promotion of agriculture (see Agriculture and Markets Law §§3, 300), the preservation of the Town’s “agricultural integrity” (Schlossin v. Town of Marilla, 48 AD3d 1118, 1120), and the preservation of the Town’s rural aesthetics and character (see Matter of Wallach v. Town of Dryden, 23 NY3d 728, 743; Modjeska Sign Studios v. Berle, 43 NY2d 468, 478; Curtiss-Wright Corp. v. Town of E. Hampton, 82 AD2d 551, 556). The petitioner’s contention that the APZ law exceeded the Town Board’s zoning powers because it promoted agricultural uses is similarly meritless (see Agriculture and Markets Law §§3, 300).Although the general rule is that a court should apply the zoning provisions in effect at the time it renders its decision (see Matter of Jul-Bet Enters., LLC v. Town Bd. of Town of Riverhead, 48 AD3d 567, 567-568; Matter of D’Agostino Bros. Enters., Inc. v. Vecchio, 13 AD3d 369, 370), pursuant to the “special facts” exception, a court may apply the law in effect at the time the landowner’s application was made. The special facts exception may be applied where the landowner “establishes entitlement as a matter of right to the underlying land use application,” and “extensive delay[ ] indicative of bad faith… unjustifiable actions by the municipal officials… or abuse of administrative procedures” (Rocky Point Drive-In, L.P. v. Town of Brookhaven, 21 NY3d 729, 736-737 [internal quotation marks omitted]; see Matter of Alscot Inv. Corp. v. Incorporated Vil. of Rockville Ctr., 64 NY2d 921, 922; Matter of Pokoik v. Silsdorf, 40 NY2d 769, 772-773; Matter of c/o Hamptons, LLC v. Rickenbach, 98 AD3d 736, 737).The record contains inconsistencies as to whether the petitioner’s application was a “completed application” when it submitted the last revised version of its site plan application in September 2003. There is evidence in the record that the petitioner needed to make additional revisions before the application could be treated as a “completed application” under the Town’s rules, meaning that the petitioner was not entitled as a matter of right to the underlying land use application (see Rocky Point Drive-In, L.P. v. Town of Brookhaven, 21 NY3d at 736-738). However, there is evidence in the record that the Town Board had determined the application to be a “completed application” when it was submitted in September 2003, meaning the Town Board may have delayed processing the petitioner’s application in a manner indicative of bad faith (see Matter of c/o Hamptons, LLC v. Rickenbach, 98 AD3d at 736-738). Thus, triable issues of fact exist as to the applicability of special facts.The petitioner’s remaining contentions are without merit.DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.MATTER of Calverton Manor, LLC, appellant- res, v. Town of Riverhead respondents- ap — (Index No. 4714/05)In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review zoning resolutions of the respondent/defendant Town Board of the Town of Riverhead dated October 21, 2004, in effect, implementing a new rural corridor zoning district for the respondent/defendant Town of Riverhead, and action for declaratory relief, the petitioner/plaintiff appeals from an order of the Supreme Court, Suffolk County (William B. Rebolini, J.), dated July 15, 2014, which denied its motion for summary judgment on the petition/complaint and denied so much of the petition as sought to annul the resolutions dated October 21, 2004, and, in effect, dismissed that part of the proceeding, and the respondents/defendants cross-appeal from so much of the same order as did not search the record and award them summary judgment and, in effect, make a declaration in their favor, on the petitioner/plaintiff’s second cause of action.ORDERED that the cross appeal is dismissed, without costs or disbursements; and it is further,ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The petitioner/plaintiff (hereinafter the petitioner) submitted a site plan application in 2001 to construct numerous commercial and residential buildings on an undeveloped parcel of land in the respondent/defendant Town of Riverhead (hereinafter the Town). The petitioner worked with Town officials to revise the site plan application to bring it into compliance with then-applicable zoning rules. Meanwhile, since 1997, the respondent/defendant Town Board of the Town of Riverhead (hereinafter the Town Board) had been in the process of developing a new Comprehensive Plan (hereinafter the Comprehensive Plan) for the Town. The “goals and policies” of the Comprehensive Plan included “protect[ing] open space and farmland, while concentrating development” into certain specified areas. The Comprehensive Plan proposed eliminating certain permitted uses on the petitioner’s parcel critical to the site plan application. The petitioner submitted its last revised site plan application in September 2003. While that application was still pending, the Town Board adopted the Comprehensive Plan on November 3, 2003.The petitioner commenced several related hybrid proceedings/actions against the Town and the Town Board (hereinafter together the respondents) in the Supreme Court, Suffolk County. The instant hybrid proceeding/action challenges the Town Board’s adoption of zoning amendments implementing the Rural Corridor component of the Comprehensive Plan (hereinafter the RLC law). The RLC law affected part of the property subject to the petitioner’s site plan application.The petitioner moved for summary judgment on the petition/complaint, arguing, among other things, that the Town Board failed to comply with General Municipal Law §239-m and Town Law §272-a, failed to comply with the procedural and substantive requirements of the State Environmental Quality Review Act (see ECL art 8; hereinafter SEQRA), failed to comply with the Comprehensive Plan, violated the doctrine of legislative equivalence, and exceeded its police powers. The petitioner’s second cause of action sought a declaration that “special facts” entitled it to have its site plan application reviewed in accordance with the zoning designation in effect prior to the Town Board’s adoption of the Comprehensive Plan.The Supreme Court denied the motion. The court held that the respondents were entitled to the entry of judgment in their favor declaring the zoning resolutions at issue to be a legal, constitutional, and valid exercise of the police and zoning powers of the Town Board. The court further held that triable issues of fact existed with respect to the applicability of special facts. The petitioner appeals, and the respondents cross-appeal from so much of the order as did not search the record and award them summary judgment and, in effect, make a declaration in their favor, on the petitioner’s second cause of action. We dismiss the cross appeal and affirm the order insofar as appealed from..A party is not aggrieved by an order which does not grant relief that the party did not request (see Spielman v. Mehraban, 105 AD3d 943, 943-944; Schlecker v. Yorktown Elec. & Light. Distribs., Inc., 94 AD3d 855, 855). The respondents are not aggrieved by so much of the order as did not search the record and award them summary judgment and, in effect, make a declaration in their favor, on the petitioner’s second cause of action (see Schlecker v. Yorktown Elec. & Light. Distribs., Inc., 94 AD3d 855, 855).Contrary to the petitioner’s contention, the Town Board made a proper referral of the RLC law to the Suffolk County Planning Commission. ”‘To facilitate regional review of amendments to a local zoning ordinance, General Municipal Law §239-m requires the local municipality to refer its proposed amendments to the county planning board’” (Matter of Village of Kiryas Joel, N.Y. v. Village of Woodbury, N.Y., 138 AD3d 1008, 1012, quoting Matter of Benson Point Realty Corp. v. Town of E. Hampton, 62 AD3d 989, 991). Here, contrary to the petitioner’s arguments, the Town Board made a “full statement” of its proposed RLC law in accordance with General Municipal Law §239-m (see General Municipal Law §239-m[1][c]). The revisions made to the RLC law after referral were “‘embraced within the original referral’” (Matter of Village of Kiryas Joel, N.Y. v. Village of Woodbury, 138 AD3d at 1012, quoting Matter of Benson Point Realty Corp. v. Town of E. Hampton, 62 AD3d at 992; see Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 NY2d 668, 679).We agree with the Supreme Court that the Town Board complied with the procedural and substantive requirements of SEQRA in adopting the RLC law. When a final generic environmental impact statement (hereinafter EIS) has been filed, no further SEQRA compliance is required if a subsequent proposed action will be carried out in conformance with the conditions and thresholds established for such actions in the generic EIS or its findings statement (see 6 NYCRR 617.10[d][1]; Matter of In Defense of Animals v. Vassar Coll., 121 AD3d 991, 994). Here, the Town Board accepted a draft and a final generic EIS in connection with the Comprehensive Plan. The RLC law faithfully implemented relevant portions of the Comprehensive Plan and thereby satisfied the conditions and thresholds for future actions set forth in the generic EISs. The Town Board’s reliance on the generic EISs prepared in connection with the Comprehensive Plan therefore satisfied the procedural and substantive requirements of SEQRA (see 6 NYCRR 617.10[d]; Matter of Eadie v. Town Bd. of Town of N. Greenbush, 7 NY3d 306, 319; Matter of Danyla v. Town Bd. of Town of Florida, 259 AD2d 850, 851-853). Moreover, the petitioner failed to identify a clear conflict between the RLC law and the Comprehensive Plan (see Nicholson v. Incorporated Vil. of Garden City, 112 AD3d 893, 894-895).“The doctrine of legislative equivalency requires that existing legislation be amended or repealed by the same procedure as was used to enact it” (JEM Realty Co. v. Town Bd. of Town of Southold, 297 AD2d 278, 279; see Naftal Assoc. v. Town of Brookhanven, 221 AD2d 423, 424-425). “The doctrine applies to attempts to amend a zoning code or ordinance by use of a resolution” (Matter of Brunswick Smart Growth, Inc. v. Town Bd. of Town of Brunswick, 51 AD3d 1119, 1120; see Paradis v. Town of Schroeppel, 289 AD2d 1027, 1028). The petitioner here failed to demonstrate that the Town Board improperly amended the zoning map using a different type of legislative action than it used to effectuate its previous zoning map (see Matter of Miller v. Kozakiewicz, 289 AD2d 494, 495).Furthermore, the Supreme Court properly determined that the respondents were entitled to a judgment declaring that the RLC law was a constitutional and valid exercise of the Town Board’s police powers. “Legislative enactments are entitled to an ‘exceedingly strong presumption of constitutionality’” (Nicholson v. Incorporated Vil. of Garden City, 112 AD3d 893, 894, quoting Lighthouse Shores v. Town of Islip, 41 NY2d 7, 11). ”A local law is cloaked with the same strong presumption of constitutionality as a statute” (Nicholson v. Incorporated Vil. of Garden City, 112 AD3d at 894; see Town of Huntington v. Park Shore County Day Camp of Dix Hills, 47 NY2d 61, 65). ”With the police power as the predicate for the State’s delegation of municipal zoning authority, a zoning ordinance will be struck down if it bears no substantial relation to the police power objective of promoting the public health, safety, morals or general welfare” (Trustees of Union Coll. in Town of Schenectady in State of N.Y. v. Members of Schenectady City Council, 91 NY2d 161, 165; see Berenson v. Town of New Castle, 38 NY2d 102, 107-108).Here, the stated purpose of the RLC law was “to allow a very limited range of roadside shops and services that are compatible with the agricultural and rural setting along major arterial roads, such as New York State Route 25, leading into Downtown Riverhead and areas zoned Hamlet Center (HC) or Village Center (VC).” Contrary to the petitioner’s arguments, the RLC law’s designation of property along New York State Route 25 a few miles west of the hamlet of Riverhead as a rural corridor zone bore a rational relationship to its stated objective.Although the general rule is that a court should apply the zoning provisions in effect at the time it renders its decision (see Matter of Jul-Bet Enters., LLC v. Town Bd. of Town of Riverhead, 48 AD3d 567, 567-568; Matter of D’Agostino Bros. Enters., Inc. v. Vecchio, 13 AD3d 369, 370), pursuant to the “special facts” exception, a court may apply the law in effect at the time the landowner’s application was made. The special facts exception may be applied where the landowner “establishes entitlement as a matter of right to the underlying land use application,” and “‘extensive delay[ ] indicative of bad faith… unjustifiable actions by the municipal officials… or abuse of administrative procedures” (Rocky Point Drive-In, L.P. v. Town of Brookhaven, 21 NY3d 729, 736-737 [internal quotation marks omitted]; see Matter of Alscot Inv. Corp. v. Incorporated Vil. of Rockville Ctr., 64 NY2d 921, 922; Matter of Pokoik v. Silsdorf, 40 NY2d 769, 772-773; Matter of c/o Hamptons, LLC v. Rickenbach, 98 AD3d 736, 737).The record contains inconsistencies as to whether the petitioner’s application was a “completed application” when it submitted the last revised version of its proposal in September 2003. There is evidence in the record that the petitioner needed to make additional revisions before the application could be treated as a “completed application” under the Town’s rules, meaning that the petitioner was not entitled as a matter of right to the underlying land use application (see Rocky Point Drive-In, L.P. v. Town of Brookhaven, 21 NY3d at 736-738). However, there is evidence in the record that the Town Board had determined the application to be a “completed application” when it was submitted in September 2003, meaning the Town Board may have delayed processing the petitioner’s application in a manner indicative of bad faith (see Matter of c/o Hamptons, LLC v. Rickenbach, 98 AD3d at 736-738). Thus, triable issues of fact exist as to the applicability of special facts.The petitioner’s remaining contentions are without merit.DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.MATTER of Calverton Manor, LLC, ap, v. Town of Riverhead res — (Index No. 20338/05)In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent/defendant Town Board of the Town of Riverhead dated April 19, 2005, adopting a resolution enacting Local Law No. 12 (2005) of the Town of Riverhead, which implemented a transfer of development rights law, and an action for a judgment declaring, inter alia, in effect, that the transfer of development rights law is void and unenforceable, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (William B. Rebolini, J.), dated July 15, 2014, which denied its motion for summary judgment on the petition/complaint, denied the petition, in effect, dismissed the proceeding, and declared that Local Law No. 12 (2005) of the Town of Riverhead is a legal, constitutional, and valid exercise of the police and zoning powers of the respondent/defendant Town Board of the Town of Riverhead.ORDERED that the order and judgment is reversed, on the law, with costs, the motion for summary judgment on the petition/complaint is granted, the resolution is annulled, and it is declared that Local Law No. 12 (2005) of the Town of Riverhead is void and unenforceable.The petitioner/plaintiff (hereinafter the petitioner) submitted a site plan application in 2001 to construct numerous commercial and residential buildings on an undeveloped parcel of land in the respondent/defendant Town of Riverhead (hereinafter the Town). The petitioner worked with officials of the Town to revise the site plan application to bring it into compliance with then-applicable zoning rules. Meanwhile, since 1997, the respondent/defendant Town Board of the Town of Riverhead (hereinafter the Town Board) had been in the process of developing a new Comprehensive Plan (hereinafter the Comprehensive Plan) for the Town. The “goals and policies” of the Comprehensive Plan included “protect[ing] open space and farmland, while concentrating development” into certain specified areas. The Comprehensive Plan proposed eliminating certain permitted uses on the petitioner’s parcel critical to the site plan application. The petitioner submitted its last revised site plan application in September 2003. While that application was still pending, the Town Board adopted the Comprehensive Plan on November 3, 2003.The petitioner commenced several related hybrid proceedings/actions against the Town and the Town Board (hereinafter together the respondents) in the Supreme Court, Suffolk County. The instant hybrid proceeding/action challenges the Town Board’s adoption of Local Law No. 12 (2005), which amended the Town’s zoning code to implement the transfer of development rights component of the Comprehensive Plan (hereinafter the TDR law). The TDR law designated the property subject to the petitioner’s site plan application as a sending district, meaning that it was an area of land from which development rights were to be transferred to receiving districts (see Town Law §261-a).The petitioner moved for summary judgment, arguing, among other things, that the Town Board failed to comply with General Municipal Law §239-m. The Supreme Court denied the motion, denied the petition, in effect, dismissed the proceeding, and declared that the TDR law is a legal, constitutional, and valid exercise of the police and zoning powers of the Town Board. The petitioner appeals, and we reverse.“General Municipal Law §239-m provides that a proposed amendment of a zoning ordinance by a town must be referred to the county planning agency if the amendment affects real property located within 500 feet of the boundary of any city, village, or town” (Matter of 24 Franklin Ave. R.E. Corp. v. Heaship, 139 AD3d 742, 744; see General Municipal Law §239-m[3][b][ii]). That statute requires a town to refer a “full statement” (General Municipal Law §239-m[1][c]; [4][b]) of its proposed action, which is defined as including “the complete text of the proposed ordinance or local law,” to the relevant county planning agency (General Municipal Law §239-m[1][c]).Here, the Town Board adopted a resolution on January 19, 2005, in which it directed the Town Clerk to publish a copy of the final draft of the TDR law and notice of a hearing to be held 10 days later regarding the proposal. Around that time, the Town Board attempted to refer the proposed TDR law to the Suffolk County Planning Commission (hereinafter the Planning Commission) in accordance with General Municipal Law §239-m. The Planning Commission, however, responded by letter dated February 9, 2005, in which it explained that the proposed TDR law would “not be reviewed until the following information is submitted through the offices of the municipal referring agency. Complete revised text of proposed TDR amendment.” There is no evidence in the record contradicting the Planning Commission’s statement that it never received the text of the proposed TDR law. Consequently, the Town Board failed to refer a “full statement” of its proposed TDR law before enacting it as required under the statute (General Municipal Law §239-m[1][c]; [4][b]).The respondents argue that the referral of prior drafts of the TDR law obviated the need for a new referral under General Municipal Law §239-m. Where changes are made to a proposed action following referral, a new referral is not required if “the particulars of the amendment were embraced within the original referral” (Matter of Benson Point Realty Corp. v. Town of E. Hampton, 62 AD3d 989, 992; see Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 NY2d 668, 678-680). Here, the TDR law as enacted contained substantial modifications that warranted a new referral (see Matter of LCS Realty Co. Inc. v. Incorporated Vill. of Roslyn, 273 AD2d 474, 475). Among other things, the final version of the TDR law “hereby” mapped sending and receiving districts and specified the degree to which landowners in receiving districts could exceed density limitations under the program. Prior versions of the TDR law that the Town Board referred to the Planning Commission reserved these details for future consideration. Underscoring the importance of these and other post-referral changes, the Town Board itself declared in the January 19, 2005, resolution that the draft contained “significant modifications to the proposed local law,” and prepared a supplemental generic environmental impact statement over the course of next several months to evaluate those changes and other features that were not adequately addressed in connection with the Town’s adoption of the Comprehensive Plan (cf. Matter of Ferrari v. Town of Penfield Planning Bd., 181 AD2d 149, 152-153).The Town Board’s failure to comply with the referral requirements of General Municipal Law §239-m constitutes a “jurisdictional defect” (Annabi v. City Council of City of Yonkers, 47 AD3d 856, 857; see Matter of 24 Franklin Ave. R.E. Corp. v. Heaship, 139 AD3d at 744 Matter of Eastport Alliance v. Lofaro, 13 AD3d 527, 528-529; Matter of Zelnick v. Small, 268 AD2d 527, 529). The Town Board’s adoption of the resolution enacting the TDR law was, therefore, of no effect, and the TDR law is void and unenforceable (see Matter of LCS Realty Co. v. Incorporated Vill. of Roslyn, 273 AD2d at 474-475; Matter of Old Dock Assoc. v. Sullivan, 150 AD2d 695, 697; see also Matter of Eastport Alliance v. Lofaro, 13 AD3d at 528-529).The parties’ remaining contentions are academic in light of our determination (see Matter of EMB Enters., LLC v. Town of Riverhead, 70 AD3d 689, 690).DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Leventhal, Austin and Maltese, JJ.PEOPLE, etc., res, v. Shawn Barnes, ap — (Ind. No. 6432/10)Paul Skip Laisure, New York, NY (Ronald Zapata of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Ann Bordley of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (William E. Garnett, J.), rendered February 13, 2014, convicting him of criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.On July 24, 2010, the defendant was arraigned on a felony complaint. He was thereafter charged, by indictment, with a felony. Prior to trial, the defendant moved to dismiss the indictment on the ground that he was deprived of his statutory and constitutional rights to a speedy trial. The Supreme Court denied the motion.The defendant was charged with a felony, so the People were required to be ready for trial in six months, accounting for any periods excluded under CPL 30.30(4) (see CPL 30.30[1][a]; [4]). The delay in providing the grand jury minutes was excludable from the calculation of speedy trial days, as the People are entitled to a reasonable period of time for this purpose (see People v. Beasley, 69 AD3d 741, affd 16 NY3d 289). Moreover, part of the delay during the period before the People provided the grand jury minutes was excludable because it was at the defendant’s request or with his consent (see CPL 30.30[4][b]; People v. Whitley, 68 AD3d 790, 791-792; People v. Gonzalez, 266 AD2d 562, 563; People v. Durette, 222 AD2d 692, 693). Further, delays attributable to the People’s motion to compel a handwriting exemplar, or their application for permission to introduce certain of the defendant’s prior convictions in evidence, are similarly excludable (see CPL 30.30[4][a]; People v. Morris, 94 AD3d 912, 913; People v. Durette, 222 AD2d at 693). The periods attributable to the People’s efforts to comply with the defendant’s requests for discovery were not unreasonable and are likewise excludable, or were the result of continuances granted by the court at the defendant’s request or with his consent (see CPL 30.30[4]; People v. McCray, 238 AD2d 442; People v. Caussade, 162 AD2d 4, 8-12).Inasmuch as the total time chargeable to the People did not exceed six months, the Supreme Court properly denied that branch of the defendant’s motion which was to dismiss the indictment pursuant to CPL 30.30.The Supreme Court also properly denied that branch of the defendant’s motion which was to dismiss the indictment on the ground that his constitutional right to a speedy trial was violated (see CPL 30.20; People v. Taranovich, 37 NY2d 442, 445; People v. Cantoni, 140 AD3d 782, 784; People v. Llorems, 133 AD3d 465).The Supreme Court’s ruling permitting the People to introduce certain prior convictions affords no basis for reversal. The evidence of the defendant’s prior convictions was probative on either the issue of his knowledge that the item he possessed was stolen (see People v. Cockett, 95 AD3d 1230, 1231; People v. Masone, 111 AD2d 189), or on the issue of absence of mistake (see People v. Trovato, 202 AD2d 457, 458). Moreover, inasmuch as the probative value of the evidence outweighed the risk of unfair prejudice to the defendant (see People v. Till, 87 NY2d 835, 836; People v. Carrasquillo, 10 AD3d 424), the court’s Molineux ruling was not an improvident exercise of discretion (see People v. Molineux, 168 NY 264). In addition, the court’s instructions to the jury on the proper use of that evidence alleviated any unfair prejudice resulting from its admission (see People v. Beer, 146 AD3d 895; People v. Trovato, 202 AD2d at 458).BALKIN, J.P., LEVENTHAL, AUSTIN and MALTESE, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.William Watson, ap, v. 518 Pennsylvania Housing Development Fund Corporation res — (Index No. 8555/13)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin M. Solomon, J.), dated December 10, 2015. The order, insofar as appealed from, denied that branch of the plaintiff’s motion which was pursuant to CPLR 3126 to strike the defendants’ answer or, alternatively, for an order of preclusion.ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff’s motion which was pursuant to CPLR 3126 for an order of preclusion, and substituting therefore a provision granting that branch of the motion to the extent of precluding the defendants from offering at trial any document that was not produced in response to the plaintiff’s discovery demands; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.The plaintiff was a resident of an apartment building formerly owned and managed by the defendants. The plaintiff commenced this action against the defendants alleging, inter alia, that while he was in the building, he was shot by an intruder or intruders who gained access to the common areas of the building due to the defendants’ failure to maintain the building’s entrances and to properly secure the building. After issue was joined, the plaintiff requested that the defendants produce records regarding the condition of the building’s entrances and locks. In response, the defendants objected to the plaintiff’s demand on the ground that “litigation has only just begun,” but also asserted that they were not in possession of any responsive documents. The plaintiff served a supplemental demand for additional documents, and a preliminary conference order directed the defendants to provide a response to the supplemental demand and to supplement their response to the plaintiff’s original demand. When the defendants failed to produce documents in response to the preliminary conference order, the plaintiff moved to compel compliance and obtained orders directing the defendants to respond. The defendants responded that they were not in possession of any records regarding the building’s entrances, doors, or locks, and did not possess any records regarding safety, security, or crimes on the premises.Additional motion practice followed, which led to court orders requiring the defendants to respond to aspects of the plaintiff’s demands. The defendants thereafter submitted an affidavit with respect to their efforts to provide the names and addresses of various former employees. Another motion by the plaintiff followed, resulting in a court order directing the defendants to provide a more detailed affidavit. In response to this order, the defendants provided an affidavit from their principal in which he stated that the building had been transferred to a third party shortly after the preliminary conference and that, apart from a “tenant file” already produced, all documents related to the building had been transferred to the new owner. The plaintiff then sought the records from the new owner, which furnished affidavits in which it was asserted that the new owner did not possess any of the requested documents. The plaintiffs moved, inter alia, pursuant to CPLR 3126 to strike the defendants’ answer or, alternatively, for an order of preclusion. The Supreme Court denied the requested sanctions, and the plaintiff appeals.We agree with the Supreme Court that, under the circumstances presented, the plaintiff was not entitled to an order striking the defendants’ answer on the ground of spoliation.“A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” (Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d 543, 547 [internal quotation marks omitted]; see CPLR 3126; Neve v. City of New York, 117 AD3d 1006, 1008; Rodman v. Ardsley Radiology, P.C., 103 AD3d 871, 872). When spoliation has been established, the court has broad discretion in determining an appropriate sanction (see Biniachvili v. Yeshivat Shaare Torah, Inc., 120 AD3d 605, 606; Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 AD3d 717, 718). ”The nature and severity of the sanction depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of the evidence, and the degree of prejudice to the opposing party” (Samaroo v. Bogopa Serv. Corp., 106 AD3d 713, 714).Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was pursuant to CPLR 3126 to impose a sanction upon the defendants for spoliation of evidence. The plaintiff failed to sustain his burden of establishing that spoliation occurred as there was no evidence submitted that the requested documents ever actually existed (see State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1295-1296; Jean-Pierre v. Touro Coll., 40 AD3d 819). The plaintiff also did not establish that the absence of any such documents deprived him of his ability to prove his claim (see Neve v. City of New York, 117 AD3d 1006; Samaroo v. Bogopa Serv. Corp., 106 AD3d at 714; Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 AD3d at 718-719; cf. Vincent L. v. AKS 183rd St. Realty Corp., 118 AD3d 602). No depositions were ever conducted, and no affidavit was submitted by the plaintiff, or any other witness, attesting to the circumstances of the shooting. While the plaintiff’s verified complaint asserts that the plaintiff was shot by an intruder or intruders who gained access due to the defendants’ negligence, the pleading was verified by the plaintiff’s attorney. In the absence of evidence from the plaintiff as to the circumstances of the shooting and any explanation as to why such evidence could not be obtained, it cannot be said that the plaintiff has been deprived of his ability to prove his case.However, under the circumstances of this case, the Supreme Court should have exercised its discretion to grant the plaintiff the alternative relief of an order of preclusion. An order of preclusion may be entered where the offending party’s lack of cooperation with disclosure was willful, deliberate, and contumacious (see Hasan v. 18-24 Luquer St. Realty, LLC, 144 AD3d 631; Richards v. RP Stellar Riverton, LLC, 136 AD3d 1011). ”The willful and contumacious character of a party’s conduct may be inferred from the party’s repeated failure to comply with court-ordered discovery, and the absence of any reasonable excuse for those failures, or a failure to comply with court-ordered discovery over an extended period of time” (New York Timber, LLC v. Seneca Cos., 133 AD3d 576, 577). Here, the defendants failed to produce relevant documents that were directed to be produced by the preliminary conference order. That failure led to two motions by the plaintiff to compel compliance, only to have the defendants assert that the building had been sold shortly after the preliminary conference order had been issued and that all documents had been transferred to the new owner. The new owner then denied having any of the requested documents. The defendants offer no excuse for their conduct. The defendants’ dilatory discovery conduct cannot be condoned, and it would be manifestly unfair to the plaintiff for the defendants to attempt to offer any of the subject documents at trial, should the documents be located. Accordingly, the court should have granted that branch of the plaintiff’s motion which was for an order of preclusion to the extent of precluding the defendants from offering at trial any document that was not produced in response to the plaintiff’s discovery demands.SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Hinds-Radix, Duffy and Christopher, JJ.MATTER of Daniel Costigan, ap, v. Elizabeth Renner, res — (Docket Nos. V-16300-10, V-16301-10)In a visitation proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Stephen J. Bogacz, J.), dated March 29, 2017. The order denied the father’s motion for an award of counsel fees.ORDERED that the order is affirmed, with costs.Between April 15, 2013, and June 5, 2013, a hearing was conducted in connection with, inter alia, a petition by the father to modify certain visitation provisions contained in a prior order of the Family Court dated September 28, 2012. On September 24, 2013, the Family Court issued a final order modifying visitation. By notice of motion dated January 15, 2014, approximately four months after the final order modifying visitation was issued, the father moved for an award of counsel fees in that proceeding. The Family Court denied the motion, and the father appeals.Contrary to the father’s contention, the Family Court properly denied, as untimely, his motion for an award of counsel fees in connection with the subject proceeding to modify visitation, as the father’s motion was made after the final order modifying visitation had been issued (see Matter of Silver v. Green, 119 AD3d 806, 808).The father’s remaining contentions are either without merit or improperly raised for the first time on appeal.RIVERA, J.P., HINDS-RADIX, DUFFY and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Cohen, Miller and Christopher, JJ.Darryl Abramowitz res, v. Lefkowicz & Gottfried, LLP appellants (and a third-party action). (Index No. 15385/11)In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), dated April 1, 2015. The order granted the plaintiffs’ motion for leave to reargue the defendants’ prior motion for summary judgment dismissing the complaint, which was granted in an order of the same court dated August 4, 2014, and, upon reargument, denied the defendants’ motion.ORDERED that the appeal is dismissed, without costs or disbursements.The appeal must be dismissed, as the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal are brought up for review and have been considered on the appeal from the judgment, decided herewith (see CPLR 5501[a][1]; Abramowitz v. Lefkowicz & Gottfried, LLP, __ AD3d __ [Appellate Division Docket No. 2016-10250; decided herewith]).RIVERA, J.P., COHEN, MILLER and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Cohen, Miller and Christopher, JJ.Darryl Abramowitz plf, 23KT Gold Collectibles, Ltd., res, v. Lefkowicz & Gottfried, LLP, appellant def — (Index No. 15385/11)In an action, inter alia, to recover damages for legal malpractice, the defendant Lefkowicz & Gottfried, LLP, appeals from a judgment of the Supreme Court, Nassau County (John M. Galasso, J.), dated August 4, 2016. The judgment, upon a decision dated June 27, 2016, made after a nonjury trial, is in favor of the plaintiff 23KT Gold Collectibles, Ltd., and against the defendant Lefkowicz & Gottfried, LLP, in the principal sum of $1,675,000.ORDERED that the judgment is affirmed, with costs.23KT Gold Collectibles, Ltd. (hereinafter 23KT), and Merrick Mint, Ltd. (hereinafter Merrick), are affiliated designers and manufacturers of memorabilia and collectible coins. In 2008, 23KT entered into an agreement with Daily News, L.P. (hereinafter Daily News), in which the parties to the agreement agreed to develop and promote a coin club through which they would sell collectible coins and share profits. 23KT agreed to design and manufacture coins and coin sets, and Daily News agreed to provide 204 pages of advertising space to advertise the coins. The coins sold through the coin club would also be offered for sale on a website called “ecoins,” which would be operated by 23KT. The agreement included an exclusivity clause providing that coin club products could not be advertised, marketed, sold, or offered for sale by 23KT or its affiliates, including Merrick, in any forum or media other than Daily News advertisements or ecoins. Products which were substantially similar, but not identical, to a coin club product could not be sold by 23KT, but were permitted to be sold by its affiliates, such as Merrick. The agreement permitted either party to terminate the agreement via written notice if the other party materially breached the agreement “and the breach is not remedied within thirty (30) days of the breaching party’s receipt of written notice of the breach.” The agreement specified that it was the entire agreement, that it could not be modified except in writing, and that a failure to exercise any right under the agreement did not operate as a waiver of that right.By letter dated January 29, 2009, Daily News notified 23KT that it had materially breached the exclusivity provision of the agreement by marketing coin club products and similar products in the New York Post and on certain websites. The notice stated that the breaches were not capable of being remedied, and that the agreement would terminate on March 1, 2009. 23KT responded with a letter in which it disputed that a breach had occurred, and asserted that, in any event, Daily News was required to permit it to cure the alleged breaches. No agreement was reached on the issue of a cure, and 23KT retained the defendant Lefkowicz & Gottfried, LLP (hereinafter the defendant law firm), to commence an action, inter alia, to recover damages for breach of contract against Daily News. Daily News obtained summary judgment dismissing the first complaint filed on behalf of 23KT, a finding in its favor on liability on its counterclaims against 23KT due to discovery failures, and dismissal of the second complaint filed on behalf of 23KT based on the doctrine of res judicata. 23KT then retained another attorney, who negotiated a settlement in which the parties discontinued their claims and 23KT paid Daily News the sum of $20,000.23KT and others then commenced this legal malpractice action against the defendant law firm and its principals. In an order dated August 4, 2014, the Supreme Court granted the defendants’ motion for summary judgment dismissing the complaint. However, in an order dated April 1, 2015, the court granted the plaintiffs’ motion for leave to reargue the defendants’ motion and, upon reargument, denied the defendants’ motion. The matter proceeded to trial, after which the court determined that 23KT established its legal malpractice cause of action against the defendant law firm. Judgment was entered in favor of 23KT and against the defendant law firm in the principal sum of $1,675,000, representing the sum 23KT would have recovered from Daily News in the absence of the law firm’s negligence, the sum spent to settle the matter with Daily News, and a return of the retainer paid to the defendant law firm. The defendant law firm appeals.To establish a cause of action alleging legal malpractice, a plaintiff must show that (1) the attorney failed to exercise the care, skill and diligence commonly possessed and exercised by a member of the legal profession, (2) such negligence was the proximate cause of the actual damages sustained by the plaintiff, and (3) but for the defendant’s negligence, the plaintiff would have prevailed in the underlying action or would not have incurred any damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; McCoy v. Feinman, 99 NY2d 295, 301-302; 4777 Food Servs. Corp. v. Anthony P. Gallo, P.C., 150 AD3d 1054, 1055; Blanco v. Polanco, 116 AD3d 892, 894).Contrary to the defendant law firm’s contention, the Supreme Court providently exercised its discretion in granting the plaintiffs’ motion for leave to reargue the defendants’ prior motion for summary judgment dismissing the complaint (see Grimm v. Bailey, 105 AD3d 703) and, upon reargument, properly denied the defendants’ motion. The defendants made a prima facie showing that any negligence on their part was not the but-for cause of 23KT’s damages, since those damages resulted from 23KT’s own breach of the exclusivity provision of the underlying agreement. However, in opposition to that prima facie showing, the plaintiffs raised triable issues of fact as to whether the exclusivity clause had been orally modified, whether there was “part performance that [was] unequivocally referable to the oral modification” (Parker v. Navarra, 102 AD3d 935, 936; see Rose v. Spa Realty Assoc., 42 NY2d 338, 343-344; Matter of Latin Events, LLC v. Doley, 120 AD3d 501, 502; Luft v. Luft, 52 AD3d 479, 481), and whether Daily News would have been estopped from denying that such a modification occurred (see Rose v. Spa Realty Assoc., 42 NY2d at 344). Moreover, even if 23KT breached the exclusivity clause of its agreement with Daily News, there was a triable issue of fact as to whether Daily News breached the agreement by failing to permit 23KT an opportunity to cure its breach (see Rebh v. Lake George Ventures, 223 AD2d 986, 986-987). Accordingly, the court properly determined that there were triable issues of fact as to whether the defendants’ alleged negligence was the but-for cause of 23KT’s damages.In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds “warranted by the facts,” bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses and hearing the testimony (Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492, 499; see Guzman v. State of New York, 129 AD3d 775, 775-776; DePaula v. State of New York, 82 AD3d 827, 827). ”Where the trial court’s findings of fact rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court’s credibility determinations” (Bennett v. Atomic Prods. Corp., 132 AD3d 928, 930; see BNG Props., LLC v. Sanborn, 153 AD3d 1221; Gomez v. Eleni, LLC, 122 AD3d 797, 798).Here, the Supreme Court determined that the defendant law firm was negligent in the underlying representation and that, but for such negligence, 23KT would have prevailed in the underlying litigation. On appeal, the defendant law firm challenges only the finding of but-for causation, arguing that 23KT was in breach of the exclusivity clause of the underlying agreement and therefore would not have prevailed in the underlying litigation, regardless of its alleged malpractice. The contention is without merit. The evidence at trial established that most of the alleged breaches listed in Daily News’ January 29, 2009, breach notice were actually sales by Merrick of similar, but not identical, coins, which did not violate the exclusivity clause of the agreement. While certain identical coins were simultaneously offered for sale on Merrick’s website and on ecoins, even if such duplication constituted a material breach of the agreement, giving due deference to the court’s credibility determinations (see Gomez v. Eleni, LLC, 122 AD3d at 798), 23KT established that Daily News breached the agreement by failing to comply with its obligation to permit 23KT the opportunity to cure prior to termination of the agreement (see Kalus v. Prime Care Physicians, P.C., 20 AD3d 452, 454; Rebh v. Lake George Ventures, 223 AD2d at 986-987). Accordingly, the determination that 23KT established that it would have prevailed in the underlying litigation but for the defendant law firm’s negligence was warranted by the facts.The defendant law firm’s remaining contentions either are without merit or need not be reached in light of our determination.RIVERA, J.P., COHEN, MILLER and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Chambers, Sgroi and Maltese, JJ.MATTER of Cheryl P. (Anonymous). Orange County Department of Social Services, res; Ayanna M. (Anonymous), ap — (Docket No. N-505-17)In a proceeding pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Orange County (Christine P. Krahulik, J.), dated March 7, 2017. The order, after a hearing, denied the mother’s application pursuant to Family Court Act §1028 for the return of the subject child to her custody. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the motion of John R. Lewis for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,ORDERED that Samuel Coe, 254 South Main Street, Suite 500, New City, NY, 10956, is assigned as counsel to perfect the appeal; and it is further,ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of this decision and order on motion, and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By order on certification of this Court dated May 22, 2017, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers, including a certified transcript of the proceedings, and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.There are two steps to this Court’s review of an attorney’s motion to be relieved pursuant to Anders v. California (386 US 738) (see Matter of Ni-Na C. [Xiao Qing C.], 126 AD3d 690, 691; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 255). First, “‘the Court must satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client’s appeal’” (Matter of Ni-Na C. [Xiao Qing C.], 126 AD3d at 691, quoting Matter of Giovanni S. [Jasmin A.], 89 AD3d at 255 [internal quotation marks omitted]). ”‘If the Court is satisfied… that counsel diligently examined the case on the indigent appellant’s behalf, the next step in the Court’s review is to determine, based upon an independent review of the record, whether counsel’s assessment that there are no nonfrivolous issues for appeal is correct’” (Matter of Ni-Na C. [Xiao Qing C.], 126 AD3d at 691, quoting Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258). ”In analyzing whether nonfrivolous appellate issues exist, it is essential to appreciate the distinction between a potential appellate argument that is merely meritless or unlikely to prevail and one that is frivolous” (Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258). The question “to be answered by this Court in every Anders case is only whether ‘the appeal lacks any basis in law or fact’” (id. at 259, quoting McCoy v. Court of Appeals of Wis., Dist. 1, 486 US 429, 439 n 10).Upon our independent review of the record, we conclude that nonfrivolous issues exist. Since a review of the record by the Appellate Division cannot substitute for “‘the single-minded advocacy of appellate counsel,’” we assign new counsel to prosecute the appeal (Matter of Giovanni S. [Jasmin A.], 89 AD3d at 259, quoting People v. Emmett, 25 NY2d 354, 356).MASTRO, J.P., CHAMBERS, SGROI and MALTESE, JJ., concur.By Rivera, J.P.; Sgroi, Duffy and Iannacci, JJ.MATTER of Dwayne H. (Anonymous), petitioner- res, v. Chaniece T. (Anonymous), res, Michael A. (Anonymous), ap — (Docket No. P-33063-13)In a proceeding pursuant to Family Court Act article 5, Michael A. appeals from an order of filiation of the Family Court, Kings County (Erik S. Pitchal, J.), dated December 17, 2015. The order of filiation adjudicated the petitioner to be the father of the subject child.ORDERED that the order of filiation is affirmed, without costs or disbursements.In December 2013, the petitioner commenced this paternity proceeding against the mother of the subject child, seeking an order declaring the petitioner to be the child’s father. In August 2014, the appellant signed an acknowledgment of paternity of the child, and in June 2015, he was added as a necessary party to the proceeding. After the appellant was added to the proceeding, the Family Court indicated that it would hold an equitable estoppel hearing before allowing the petitioner to proceed on his paternity petition or obtain genetic marker testing (hereinafter DNA testing).Thereafter, the appellant failed to appear for the equitable estoppel hearing on July 1, 2015, and the Family Court, in effect, determined that the appellant had defaulted, dismissed the appellant’s equitable estoppel defense to the petition, and granted the petitioner’s request for DNA testing. Approximately one month later, the appellant moved, inter alia, in effect, to vacate his default in appearing at the equitable estoppel hearing and to reschedule the equitable estoppel hearing and bar admission of the DNA testing results. In support of the appellant’s motion, counsel for the appellant represented that the appellant had not appeared at the hearing on July 1, 2015, because the appellant had gone to Georgia to obtain the child’s birth certificate and, due to a bus delay, arrived late in court that day after the conclusion of the hearing. The court denied the appellant’s motion. Following receipt of the DNA testing results, in an order dated December 17, 2015, the court declared the petitioner to be the father of the child.Contrary to the Family Court’s determination, the representation by counsel for the appellant that the appellant arrived to court late on July 1, 2015, because his bus was delayed constitutes a reasonable excuse for failing to appear in time for the hearing (see Matter of Morales v. Marma, 88 AD3d 722, 723). Nonetheless, the appellant failed to demonstrate that he had a potentially meritorious defense of equitable estoppel. The appellant’s submissions failed to demonstrate that a loving parent-child bond was established between him and the child or that the child relied upon his alleged representation of paternity (see Matter of Juanita A. v. Kenneth Mark N., 15 NY3d 1, 5-6; Matter of John J. v. Kayla I., 137 AD3d 1500, 1502; Matter of Stephen W. v. Christina X., 80 AD3d 1083, 1085-1086). Accordingly, the court properly denied the appellant’s motion.Contrary to the appellant’s contention, he was not deprived of the effective assistance of counsel (see Family Ct Act §262[a][viii]; People v. Benevento, 91 NY2d 708, 712; Matter of Dylan Mc. [Michelle M. Mc.], 105 AD3d 1049, 1050; Matter of Ingravera v. Goss, 13 AD3d 627, 628).RIVERA, J.P., SGROI, DUFFY and IANNACCI, JJ., concur.By Dillon, J.P.; Chambers, Hinds-Radix and Christopher, JJ.PEOPLE, etc., res, v. Stephen Socci, ap — (Ind. Nos. 2657/06, 1715/07)Law Offices of Thomas F. Liotti, LLC, Garden City, NY, for appellant.Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and Hilda Mortensen of counsel), for respondent.Appeals by the defendant from two judgments of the Supreme Court, Nassau County (James P. McCormack, J.), both rendered March 26, 2008, convicting him of assault in the second degree (two counts) under Indictment No. 2657/06, and kidnapping in the second degree and aggravated criminal contempt under Indictment No. 1715/07, upon his pleas of guilty, and imposing sentences.ORDERED that the judgments are affirmed.The defendant’s contention that he was not competent to plead guilty is unpreserved for appellate review (see People v. Washington, 134 AD3d 963, 963; People v. Perez, 65 AD3d 1167). In any event, the contention is without merit. The defendant was presumed competent to proceed (see People v. Gelikkaya, 84 NY2d 456). His demeanor in court and responses to inquiries were appropriate and did not trigger any duty to inquire as to his competency (see People v. Anlyan, 150 AD3d 869; People v. Washington, 134 AD3d at 964; People v. DeBenedetto, 120 AD3d 1428).The defendant’s remaining contentions are without merit or not properly before this Court (see People v. Williams, 149 AD3d 986).DILLON, J.P., CHAMBERS, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Roman, Hinds-Radix and Christopher, JJ.PEOPLE, etc., res, v. Wesley M. Keene, ap — (Ind. Nos. 2455-14, 971-15)Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.Timothy D. Sini, District Attorney, Riverhead, NY (Edward A. Bannan of counsel), for respondent.Appeals by the defendant from two judgments of the County Court, Suffolk County (John B. Collins, J.), both rendered August 4, 2015, convicting him of criminal sale of a controlled substance in the third degree under Indictment No. 2455-14, and robbery in the third degree under Indictment No. 971-15, upon his pleas of guilty, and imposing sentences.ORDERED that the judgments are affirmed.The defendant’s purported waiver of his right to appeal was invalid (see People v. Bradshaw, 18 NY3d 257, 264; People v. Weber, 153 AD3d 946; People v. Flores, 139 AD3d 753; People v. Brown, 122 AD3d 133) and, thus, does not preclude review of his claims that the sentences imposed should be reduced. However, the sentences imposed were not excessive (see People v. Suitte, 90 AD2d 80), and we decline to reduce them in the exercise of our interest of justice jurisdiction.RIVERA, J.P., ROMAN, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Roman, Duffy and Connolly, JJ.Diane Leonardo Beckmann, ap, v. Christopher Paul Beckmann, res — (Index No. 34548/11)Diane Leonardo Beckmann, East Setauket, NY, appellant pro se.Karyn A. Villar, PLLC, Hauppauge, NY, for respondent.In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Suffolk County (John J. Leo, J.), dated August 18, 2015. The order, insofar as appealed from, granted that branch of the plaintiff’s motion which was for child support arrears only to the extent of directing the defendant to pay child support arrears that had accrued since the date of a temporary order of support of the Family Court, Suffolk County, denied that branch of the plaintiff’s motion which was for an award of an attorney’s fee, and, in effect, granted that branch of the defendant’s cross motion which was, in effect, for a downward modification of his child support obligation.ORDERED that the order is modified, on the law, by deleting the provision thereof directing the defendant to pay child support arrears that had accrued since the date of the temporary order of support; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a new determination of the amount of child support arrears owed to the plaintiff.The parties were divorced by a judgment entered April 20, 2012, which incorporated, but did not merge with, a stipulation of settlement dated November 14, 2011. Pursuant to the stipulation, the parties agreed that the defendant would pay $700 twice a month in basic child support for their two children. In April 2013, the parties’ daughter became emancipated under the terms of the stipulation, and shortly thereafter, the defendant reduced his child support payments from $700 to $476. The plaintiff commenced a proceeding in the Family Court seeking to enforce the defendant’s child support obligation. On September 23, 2013, the Family Court issued a temporary order of support directing the defendant to pay $405 twice a month in basic child support for the parties’ unemancipated son. Thereafter, the plaintiff withdrew her Family Court petition and moved in the Supreme Court, inter alia, for an upward modification of the defendant’s basic child support obligation for their son to $717.84 twice a month, for child support arrears that had accrued since the date their daughter became emancipated, and for an award of an attorney’s fee. The defendant cross-moved, among other things, in effect, for a downward modification of his child support obligation. In the order appealed from, the Supreme Court, inter alia, granted that branch of the plaintiff’s motion which was for child support arrears to the extent of directing the defendant to pay child support arrears that had accrued since September 23, 2013, the date of the Family Court’s temporary order of support, denied that branch of the plaintiff’s motion which was for an award of an attorney’s fee, and, in effect, granted that branch of the defendant’s cross motion which was, in effect, for a downward modification of his child support obligation. The plaintiff appeals.Given the express terms of the parties’ stipulation and the fact that their son remained unemancipated, their daughter’s emancipation in April 2013 did not automatically reduce the unallocated amount of child support owed by the defendant (see Matter of Wrighton v. Wrighton, 61 AD3d 988, 989), and he was required “to seek appropriate relief by application to the court for a modification of child support payments” (Lamassa v. Lamassa, 106 AD3d 957, 959). Contrary to the plaintiff’s contentions, the defendant, in effect, requested such relief in his cross motion made in the Supreme Court, and that relief was properly granted (see generally Matter of Rosenthal v. Buck, 281 AD2d 909, 909; Matter of Stromnes v. Stromnes, 201 AD2d 981, 982).However, the Supreme Court erred with regard to its determination of child support arrears. ”A court ‘ha[s] no discretion to reduce or cancel arrears of child support which accrue before an application for downward modification of the child support obligation’” (Matter of Gardner v. Maddine, 112 AD3d 926, 927, quoting Grossman v. Composto-Longhi, 96 AD3d 1000, 1002; see Dembitzer v. Rindenow, 35 AD3d 791, 793). Here, the defendant reduced his child support payments in or about May 2013 and did not seek a downward modification until April 2014, when he filed his cross motion in the Supreme Court. The Supreme Court only directed the defendant to pay arrears accruing from September 23, 2013, the date of the Family Court temporary order of support. Although the Family Court order temporarily set the defendant’s child support obligation at $405 twice a month for the parties’ son, the Family Court order did not erase the child support arrears already accrued by the defendant (see Family Ct Act §451; Matter of Moore v. Abban, 72 AD3d 970, 972-973). Consequently, the defendant was obligated to pay arrears that accrued from the date he reduced his child support payments in May 2013 to the date he cross-moved, in effect, for a downward modification, and we remit the matter to the Supreme Court, Suffolk County, for a new determination of the amount of child support arrears owed to the plaintiff.Under the circumstances presented, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was for an award of an attorney’s fee (see Domestic Relations Law §§237[c]; 238).The plaintiff’s remaining contentions are without merit.RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.By Mastro, J.P.; Dillon, Cohen and Iannacci, JJ.Richard Dube plf-ap, v. County of Rockland res, USPLabs, LLC, defendant-appellant defendant (and a third- party action). (Index No. 30438/11)In a consolidated action, inter alia, to recover damages for personal injuries, etc., the plaintiffs and the defendant USPLabs, LLC, separately appeal from an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated December 11, 2015. The order granted the motion of the defendants County of Rockland, Rockland County Sheriff’s Department, and Rockland Regional Rescue, Entry and Counter-Terrorism Team, for summary judgment dismissing the complaint asserted against them.ORDERED that the appeal by the defendant USPLabs, LLC, is dismissed, as it is not aggrieved by the order appealed from (see CPLR 5511; Mixon v. TBV, Inc., 76 AD3d 144); and it is further,ORDERED that the order is reversed on the appeal by the plaintiffs, on the law, and the motion of the defendants County of Rockland, Rockland County Sheriff’s Department, and Rockland Regional Rescue, Entry and Counter-Terrorism Team, for summary judgment dismissing the complaint asserted against them is denied; and it is further,ORDERED that one bill of costs is awarded to the plaintiffs.The plaintiff Richard Dube, a police officer employed by the Town of Ramapo, was selected as a candidate for the Rockland Regional Rescue, Entry and Counter-Terrorism Team (hereinafter REACT), a part-time SWAT team comprised of specially trained police officers from participating law enforcement agencies in Rockland County. During a physical fitness test in connection with his candidacy for REACT, Dube suffered heat stroke and sustained personal injuries. Dube, and his wife suing derivatively, commenced an action against the County, the Rockland County Sheriff’s Department, and REACT (hereinafter collectively the County of defendants). The action was consolidated with an action the plaintiffs commenced against USPLabs, LLC, the manufacturer of a vitamin supplement Dube was taking at the time he fell ill. The County defendants moved for summary judgment dismissing the complaint asserted against them, contending that Dube was their special employee and therefore barred from commencing an action against them pursuant to Workers’ Compensation Law §§11 and 29(6). The County defendants also contended that they were entitled to summary judgment dismissing the complaint based upon governmental immunity, the “firefighter’s rule,” and the doctrine of primary assumption of risk. The Supreme Court granted the motion, determining that Dube was a special employee of the County defendants, but without addressing the other grounds for summary judgment. The plaintiffs appeal.An employee who is entitled to receive workers’ compensation benefits may not sue his or her general employer or special employer for injuries occuring during the course of employment (see Workers’ Compensation Law §§11, 29[6]; Bostick v. Penske Truck Leasing Co., L.P., 140 AD3d 999, 1000; Franco v. Kaled Mgt. Corp., 74 AD3d 1142, 1142; Pena v. Automatic Data Processing, Inc., 73 AD3d 724, 724). A special employee is “one who is transferred for a limited time of whatever duration to the service of another” (Thompson v. Grumman Aerospace Corp., 78 NY2d 553, 557; see Zupan v. Irwin Contr., Inc., 145 AD3d 715, 718). The determination as to whether a special employment relationship exists is generally an issue of fact requiring consideration of many factors, including who controls and directs the manner of the employee’s work, who is responsible for payment of wages and benefits, who furnishes equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business (see Thompson v. Grumman Aerospace Corp., 78 NY2d at 558; Schramm v. Cold Spring Harbor Lab., 17 AD3d 661, 662). General employment is presumed to continue, and the presumption can only be rebutted by a “clear demonstration of surrender of control by the general employer and assumption of control by the special employer” (Thompson v. Grumman Aerospace Corp., 78 NY2d at 557; see Perkins v. Crothall Healthcare, Inc., 148 AD3d 1189, 1190; D’Alessandro v. Aviation Constructors, Inc., 83 AD3d 769, 770; Franco v. Kaled Mgt. Corp., 74 AD3d at 1142; Spencer v. Crothall Healthcare, Inc., 38 AD3d 527, 528).Here, the County defendants failed to meet their initial burden of submitting sufficient evidence demonstrating the absence of any triable issues of fact (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). They did not submit sufficient evidence to rebut the presumption that Dube remained a general employee under the control of the Town at the time of the incident. Dube was under the control of the County defendants for the limited purpose of the physical test to evaluate his ability to join REACT. However, his general employer, the Town, paid his wages, gave him permission to attend the REACT test on his regular work day, paid his workers’ compensation benefits, and retained the authority to discharge or discipline him.The County defendants also failed to meet their burden on the other grounds for summary judgment. With regard to governmental immunity, they failed to establish, prima facie, that there was a set procedure for administering the physical test and that they did not violate accepted practices (see Johnson v. City of New York, 15 NY3d 676; Summerville v. City of New York, 257 AD2d 566). Further, the County defendants’ reliance on the “firefighter’s rule” is misplaced in light of our determination that they failed to establish, prima facie, that Dube was their special employee (see General Obligations Law §11-106[1]; Giuffrida v. Citibank Corp., 100 NY2d 72). Lastly, the County defendants failed to establish, prima facie, that the doctrine of primary assumption of risk is applicable under the circumstances of this case (see Custodi v. Town of Amherst, 20 NY3d 83; Trupia v. Lake George Cent. School Dist., 14 NY3d 392).Because the County defendants failed to meet their prima facie burden, denial of their motion was required regardless of the sufficiency of the plaintiffs’ papers submitted in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853).Accordingly, the Supreme Court should have denied the County defendants’ motion for summary judgment dismissing the complaint asserted against them.MASTRO, J.P., DILLON, COHEN and IANNACCI, JJ., concur.By Dillon, J.P.; Chambers, Maltese and Barros, JJ.MATTER of Keia Wittingham, res, v. William H. Payne III, ap — (Proceeding No. 1)MATTER of William H. Payne III, ap, v. Keia Wittingham, res — (Proceeding No. 2) (Docket Nos. V-16364/15/16A/17B)Lisa Beth Older, New York, NY, for appellant.Del Atwell, East Hampton, NY, for respondent.Laurette D. Mulry, Central Islip, NY (John B. Belmonte of counsel), attorney for the child.In related custody proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Kerri N. Lechtrecker, Ct. Atty. Ref.), dated July 17, 2017. The order, insofar as appealed from, after a hearing, awarded sole legal and residential custody of the parties’ child to the mother.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The parties, who were never married, are the parents of one daughter, born in Kentucky in October 2010. At the time, the father was a college student in Kentucky and the mother lived there. In 2013, when the father graduated, he returned to New York, and the child remained with the mother. Thereafter, the child visited the father in New York during the summers and holidays. After a summer visit in 2015, however, the father enrolled the child in school in New York and did not return her to the mother. The child stayed in the paternal grandparents’ home, and the parties entered into a stipulation by which the child would remain there to finish the school year. The father did not return the child to the mother at the end of the school year. The father and mother each separately petitioned for custody of the child. The Family Court awarded sole legal and residential custody to the mother. The father appeals.The paramount concern in custody disputes is the best interests of the child (see Eschbach v. Eschbach, 56 NY2d 167, 171; Matter of Brooks v. Hall, 158 AD3d 680). ”Custody determinations depend to a great extent upon a hearing court’s assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties” (Matter of Recher v. Velez, 143 AD3d 828, 829). A hearing court’s custody determination will not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Gooler v. Gooler, 107 AD3d 712). Here, the Family Court’s determination that the child’s best interests would be served by awarding sole legal and residential custody to the mother has a sound and substantial basis in the record and will not be disturbed (see Matter of Recher v. Velez, 143 AD3d 828; Matter of Gasby v. Chung, 88 AD3d 709).The father’s remaining contentions are without merit.DILLON, J.P., CHAMBERS, MALTESE and BARROS, JJ., concur.By Chambers, J.P.; Roman, Barros and Christopher, JJ.MATTER of Brunilda Espinal-Melendez, res, v. Luis A. Vasquez, ap — (Docket No. F-14566-15/16A)Laurette D. Mulry, Central Islip, NY (Jose F. Canosa of counsel), for appellant.In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of commitment of the Family Court, Suffolk County (Frank A. Tantone, J.), dated April 21, 2017. The order of commitment, in effect, confirmed findings of fact and an order of disposition of the same court (Darlene Jorif-Mangane, S.M.), both dated March 13, 2017, finding that the father willfully violated a prior order of child support, and committed him to the custody of the Suffolk County Correctional Facility for a period of 60 days unless he paid the purge amount of $5,000.ORDERED that the appeal from so much of the order of commitment as committed the father to the Suffolk County Correctional Facility for a period of 60 days is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Becker v. Guenther, 150 AD3d 985); and it is further,ORDERED that the order of commitment is affirmed insofar as reviewed, without costs or disbursements.In September 2015, the mother commenced a proceeding pursuant to Family Court Act article 4 against the father for child support. On December 16, 2015, the Family Court held an inquest, at which the father did not appear. In an order dated December 17, 2015, entered upon the father’s default, the court directed the father to pay the sum of $1,428.50 per month in child support. In July 2016, the mother commenced this proceeding alleging that the father was in willful violation of the support order. Thereafter, the father moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate the support order. After a hearing, a Support Magistrate found that the father had willfully violated the support order. In an order of disposition dated March 13, 2017, the court, among other things, denied the father’s motion. In an order of commitment dated April 21, 2017, the court, in effect, confirmed the Support Magistrate’s finding of willfulness, and committed the father to the custody of the Suffolk County Correctional Facility for a period of 60 days unless he paid the purge amount of $5,000. The father appeals from the order of commitment.The appeal from so much of the order of commitment as committed the father to the custody of the Suffolk County Correctional Facility for a period of 60 days must be dismissed as academic, as the period of incarceration has ended. However, in light of the enduring consequences which could flow from the determination that the father violated the support order, the appeal from so much of the order of commitment as, in effect, confirmed the determination that the father was in willful violation of the order of child support is not academic (see Matter of Becker v. Guenther, 150 AD3d 985). Further, the denial of the father’s motion, inter alia, to vacate the support order entered upon his default, is brought up for review on the appeal from the order of commitment (see Matter of Heinz v. Faljean, 57 AD3d 665).Contrary to the father’s contention, the Family Court providently exercised its discretion in denying his motion, inter alia, to vacate the support order entered upon his default. The court’s determination that the father failed to show a reasonable excuse for his default is supported by the record and should not be disturbed (see Matter of Johanna B. [Grace B.], 157 AD3d 668). Since the father did not have a reasonable excuse for his default, this Court need not determine whether he established a potentially meritorious defense (see Matter of Brown v. Eley, 137 AD3d 1024, 1025).Furthermore, the Family Court properly, in effect, confirmed the Support Magistrate’s finding that the father willfully violated the support order. ”Failure to pay support, as ordered, constitutes prima facie evidence of a willful violation” (Schad v. Schad, 158 AD3d 705, 706; see Family Ct Act §454[3][a]; Matter of Densing v. Densing, 107 AD3d 711). ”Thus, proof that a respondent has failed to pay support as ordered establishes the petitioner’s direct case of willful violation, shifting the burden to the respondent to offer competent, credible evidence of his or her inability to make the payments as ordered” (Schad v. Schad, 158 AD3d at 706; see Matter of Powers v. Powers, 86 NY2d 63, 69-70). Here, after the mother established, prima facie, that the father failed to meet his support obligation set forth in the order dated December 17, 2015, the father failed to come forward with competent, credible evidence that his failure to pay was not willful (see Schad v. Schad, 158 AD3d at 706). We find no basis to reject the Support Magistrate’s finding that the father’s claimed lack of income and inability to work lacked credibility (see Matter of Pace v. Douglas, 141 AD3d 530, 531-532).The father’s remaining contentions are either without merit or not properly before this Court.CHAMBERS, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Balkin, Austin and Hinds-Radix, JJ.MATTER of Linda S. M. (Anonymous), ap, et al., pet, v. Demetrius W. (Anonymous) res, Aziza M. (Anonymous), res-res — (Docket Nos. G-20053-15, G-20054-15, G-20061-15, V-18752-15, V-18753-15, V-18761-15)Kenneth M. Tuccillo, Hastings on Hudson, NY, for appellant.Cabelly & Calderon, Jamaica, NY (Lewis S. Calderon of counsel), for respondent-respondent.Seymour W. James, Jr., New York, NY (Dawne Mitchell and Marcia Egger of counsel), attorney for the child.In related proceedings pursuant to Family Court Act article 6, the maternal grandmother appeals from an amended order of the Family Court, Queens County (Carol A. Stokinger, J.), dated June 7, 2017. The amended order, insofar as appealed from, without a hearing, granted that branch of the mother’s motion which was to dismiss the maternal grandmother’s petitions for guardianship of the subject children.ORDERED that the amended order is affirmed insofar as appealed from, without costs or disbursements.The petitioner is the maternal grandmother of three children born in 2008, 2011, and 2013, respectively. In January 2015, the Administration for Children’s Services (hereinafter ACS) filed petitions pursuant to Family Court Act article 10 alleging that the mother had neglected the children. The children were removed from the mother’s custody and placed in the same nonkinship foster home. Thereafter, the grandmother and maternal aunt filed petitions pursuant to Family Court Act article 6 seeking, inter alia, guardianship of the children. In March 2016, the children were returned to the mother’s custody and, in an order dated May 17, 2016, the Family Court adjourned the neglect proceeding for six months in contemplation of dismissal (hereinafter ACD). In an order dated November 28, 2016, the court dismissed the neglect petition in the interest of justice upon the mother’s completion of the terms of the ACD. In March 2017, the mother moved, inter alia, to dismiss the grandmother’s guardianship petitions for lack of standing. In the amended order appealed from dated June 7, 2017, the court, inter alia, granted that branch of the mother’s motion which was to dismiss the grandmother’s guardianship petitions. The grandmother appeals.“‘In a child custody dispute between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances’” (Matter of Maddox v. Maddox, 141 AD3d 529, 529, quoting Matter of Bailey v. Carr, 125 AD3d 853, 853; see Matter of Suarez v. Williams, 26 NY3d 440, 446; Matter of Bennett v. Jeffreys, 40 NY2d 543, 546-548). The nonparent bears the burden of proving the existence of extraordinary circumstances in order to establish his or her standing to seek custody (see Matter of Jamison v. Britton, 141 AD3d 522, 524; Matter of Santiago v. Henderson, 122 AD3d 866, 867). In the absence of a showing of extraordinary circumstances, no inquiry into the best interests of the child is triggered (see Matter of Bennett v. Jeffreys, 40 NY2d at 548; Matter of Sellers v. Brown, 155 AD3d 1047). ”‘A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers’” (Matter of Moskowitz v. Moskowitz, 128 AD3d 1070, 1070, quoting Matter of Roberts v. Roberts, 81 AD3d 1117, 1118; see Matter of Smith v. Cooks, 148 AD3d 814, 815; Matter of Pugz v. Smith, 144 AD3d 1039, 1040).Here, the Family Court properly granted, without a hearing, the mother’s motion to dismiss the grandmother’s guardianship petition based on the grandmother’s lack of standing. The submitted papers established that the mother had not surrendered or abandoned the children, as she consistently visited them and planned for their return while they were in foster care. Although the grandmother cared for the two youngest children for a few months in 2013 when the mother moved and was seeking new employment, the mother remained in contact with the grandmother and the children (see Matter of Jamison v. Britton, 141 AD3d at 524; Matter of Hyde v. King, 47 AD3d 813, 815). Additionally, the mother’s compliance with ACS’s service plan and completion of the terms of the ACD demonstrated that she had addressed the alleged lapses in parental judgment (see Matter of Burton v. Barrett, 104 AD3d 1084, 1086; Matter of Ramos v. Ramos, 75 AD3d 1008, 1012). Those prior shortcomings do not rise to the level of unfitness or persistent neglect (see Matter of Jennifer BB. v. Megan CC., 150 AD3d 1340, 1341; Matter of Rodriguez v. Delacruz-Swan, 100 AD3d 1286, 1288). Since the submissions raised no triable issue of fact as to a showing of “extraordinary circumstances,” a hearing on the issue of standing was not necessary (see Matter of Schmitt v. Troche, 155 AD3d 739, 741).The grandmother’s remaining contention is without merit.SCHEINKMAN, P.J., BALKIN, AUSTIN and HINDS-RADIX, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Iannacci, JJ.MATTER of Mahar E. (Anonymous). Suffolk County Department of Social Services, ap, Mahmuda E. (Anonymous), et al., res — (Docket Nos. N-17786-16, N-17787-16)In a proceeding pursuant to Family Court Act article 10, the petitioner appeals from an order of the Family Court, Suffolk County (Philip Goglas, J.), dated October 26, 2016. The order directed the temporary removal of the child Mahar E. pursuant to Family Court Act §1022.ORDERED that the appeal is dismissed as academic, without costs or disbursements.The Suffolk County Department of Social Services (hereinafter DSS) appeals from an order dated October 26, 2016, which directed the temporary removal of the child Mahar E. pursuant to Family Court Act §1022. That order, however, was superseded five days later by a removal order issued pursuant to Family Court Act §1027, which DSS did not oppose, and from which no appeal was taken. Accordingly, DSS waived any issues with respect to the order appealed from. Moreover, the removal order pursuant to Family Court Act §1027 rendered the appeal from the removal order pursuant to Family Court Act §1022 academic (see Matter of Darlene L., 38 AD3d 552, 554).BALKIN, J.P., AUSTIN, SGROI and IANNACCI, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Iannacci, JJ.MATTER of Myeenul E. (Anonymous). Suffolk County Department of Social Services, ap; Mizanul E. (Anonymous), et al., res — (Proceeding No. 1)MATTER of Mariayah E. (Anonymous). Suffolk County Department of Social Services, ap; Mizanul E. (Anonymous), et al., res — (Proceeding No. 2)MATTER of Mahar E. (Anonymous), nonparty-ap — Suffolk County Department of Social Services, ap; Mizanul E. (Anonymous), et al., res — (Proceeding No. 3) (Docket Nos. N-19683-15/16A/C, N-19684-15/16A/C, N-17786-16/16A, N-17787-16/16A, N-19682-16/16A)In related neglect proceedings pursuant to Family Court Act article 10, the petitioner in Proceeding Nos. 1 and 2 appeals, and the child in Proceeding No. 3 separately appeals, from an order of the Family Court, Suffolk County (Philip Goglas, J.), dated April 7, 2017. The order, insofar as appealed from, modified a prior order of the same court dated February 8, 2016, so as to place the child Mahar E. in the care and custody of the Suffolk County Department of Social Services, nunc pro tunc to October 27, 2016, and dismissed petitions filed by the attorney for the child Mahar E.ORDERED that the order dated April 7, 2017, is modified, on the law, by deleting the provision thereof directing that the placement of the child Mahar E. was made “nunc pro tunc to October 27, 2016″; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.The mother and the father are the parents of Myeenul E., Mariayah E., and Mahar E. (hereinafter individually Myeenul, Mariayah, and Mahar, and collectively the children). In December 2015, the Suffolk County Department of Social Services (hereinafter DSS) filed a child neglect petition against the father, on behalf of the children, based on allegations of domestic violence and excessive corporal punishment. On February 8, 2016, the Family Court adjudicated the father a neglectful parent, and issued an order of disposition releasing the children to the mother, placing the family under the supervision of DSS for a period of one year, and directing that the father comply with orders of protection in favor of the children, which, inter alia, excluded the father from the family home. By orders dated October 3, 2016, and October 14, 2016, the court modified the order of disposition by extending the orders of protection to October 3, 2017, thereby effectively extending its supervision over the family to that same date (see Family Ct Act §1056[1], [4]; Matter of Sheena D., 8 NY3d 136).On October 18, 2016, the attorney for Mahar made an application pursuant to Family Court Act §1022 for Mahar’s temporary removal from the mother’s care. Following a hearing, the Family Court denied the application for removal, and instead issued temporary orders of protection against the mother and the father.On October 26, 2016, the attorney for Mahar renewed the application pursuant to Family Court Act §1022 for removal. Following a hearing, the Family Court granted the application, finding that the mother may have violated the orders of protection.On October 27, 2016, the attorney for Mahar, upon leave granted by the Family Court pursuant to Family Court Act §1032(b), filed new neglect petitions against the mother and the father. By order dated October 31, 2016, one day before Mahar’s 18th birthday, the Family Court directed Mahar’s temporary removal from the home pursuant to Family Court Act §1027.The next day, November 1, 2016, the attorney for Myeenul and Mariayah filed a petition pursuant to Family Court Act §1061 to further modify the order of disposition by permitting the father return to the home.In the order appealed from dated April 7, 2017, the Family Court modified the dispositional order pursuant to Family Court Act §1061 as to the child Mahar only, for good cause shown. Specifically, the court directed that Mahar be placed in the care of DSS, nunc pro tunc to October 27, 2016, the date on which Mahar’s attorney filed new neglect petitions against the parents. Upon making this dispositional modification, the court dismissed the petitions filed by Mahar’s attorney for “facial insufficiency.” The court further granted the petition for modification filed by the attorney for Myeenul and Mariayah, finding that it was in their best interests to permit the father to return to the family home.DSS appeals from so much of the order dated April 7, 2017, as modified the order of disposition nunc pro tunc, and Mahar appeals from so much of the order as dismissed her new neglect petitions against both parents.The Family Court providently exercised its discretion in modifying the order of disposition and placing the child Mahar in the care and custody of DSS. Pursuant to Family Court Act §1061, the court may modify any order issued during the course of a proceeding under article 10 for “good cause shown and after due notice.” The statute “‘expresses the strong Legislative policy in favor of continuing Family Court jurisdiction over the child and family so that the court can do what is necessary in the furtherance of the child’s welfare’” (Matter of Angelina AA., 222 AD2d 967, 968-969, quoting Douglas J. Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act §1061 at 461 [1983 ed]; see Matter of Kenneth QQ. [Jodi QQ.], 77 AD3d 1223; Matter of Shinice H., 194 AD2d 444). ”As with an initial order, the modified order ‘must reflect a resolution consistent with the best interests of the children after consideration of all relevant facts and circumstances, and must be supported by a sound and substantial basis in the record’” (Matter of Kenneth QQ. [Jodi QQ.], 77 AD3d at 1224, quoting Matter of Elijah Q., 36 AD3d 974, 976; see also Matter of Natasha M. [Gaston Y.], 94 AD3d 765). ”[T]he conducting of a hearing under section 1061 is not mandated, but is left entirely to the Family Court’s discretion” (Matter of Elizabeth C. [Omar C.], 156 AD3d 193, 209; see Family Ct Act §1064).Here, the record supports the Family Court’s finding that Mahar had a strained relationship with her parents, and that the mother was unable to adequately care for her due to significant disability, and language and cultural barriers. Moreover, evidence presented at the hearings pursuant to Family Court Act §1022 established that Mahar was subjected to a hostile home environment, where the parents blamed her for the father’s absence from the home. Based on this evidence, as well as the prior finding that the father neglected the children, and the temporary order directing Mahar’s removal for the parents’ care, the court properly determined that there was good cause to modify the order of disposition and place Mahar in the care and custody of DSS (see Family Ct Act §§1052, 1055, 1061). Moreover, viewing the totality of the circumstances, the court’s modified order was consistent with Mahar’s best interests (see Matter of Kevin M.H. [Kevin H.], 102 AD3d 690, 692; Matter of Natasha M. [Gaston Y.], 94 AD3d 765).However, the Family Court erred in making its modified order nunc pro tunc to October 27, 2016, as there was no record of any Family Court Act §1061 application at that time, nor were any proceedings held on that date (see Cornell v. Cornell, 7 NY2d 164; Merrick v. Merrick, 266 NY 120, 122). Nevertheless, this error does not warrant reversal. Pursuant to the section 1027 order of removal, dated October 31, 2016, Mahar entered and remained in foster care prior to her 18th birthday. The Family Court therefore had continuing jurisdiction over her (see Family Ct Act §§1013[c]; 1087, 1088), such that a nunc pro tunc order of placement, intended to predate her 18th birthday, was unnecessary.Finally, under the circumstances here, where the Family Court modified its prior order to grant relief to Mahar, it did not err in dismissing the new neglect petitions.BALKIN, J.P., AUSTIN, SGROI and IANNACCI, JJ., concur.By Rivera, J.P.; Sgroi, Duffy and Iannacci, JJ.MATTER of Mikhail Lando, res, v. Kira Lando, ap — (Docket No. O-13394-15)In a family offense proceeding pursuant to Family Court Act article 8, Kira Lando appeals from an order of the Family Court, Kings County (Dean Kusakabe, J.), dated September 22, 2016. The order denied the appellant’s motion to vacate an order of protection that was entered against her after an inquest upon her failure to appear at a hearing.ORDERED that the order dated September 22, 2016, is affirmed, without costs or disbursements.The parties were married in 1963 and divorced in 2011. The petitioner commenced this family offense proceeding in May 2015, and was granted a temporary order of protection against the appellant. The appellant failed to appear at the hearing. After inquest, the Family Court found that the petitioner established by a fair preponderance of the evidence that the appellant committed acts constituting family offenses enumerated in Family Court Act §812. The court further found aggravating circumstances pursuant to Family Court Act §827 and entered an order of protection directing the appellant to stay away from the petitioner and observe stated conditions of behavior for a period of five years. The appellant subsequently moved to vacate the order of protection entered upon her default, and in the order appealed from, the court denied the motion.“A party seeking to vacate an order of protection entered upon his or her default in appearing for a hearing on a family offense petition must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the petition” (Matter of Nunez v. Lopez, 103 AD3d 803, 804; see CPLR 5015[a][1]; Matter of Mongitore v. Linz, 95 AD3d 1130). Here, the appellant’s conclusory assertions were insufficient to constitute a potentially meritorious defense (see Matter of Mongitore v. Linz, 95 AD3d at 1131; Matter of Atkin v. Atkin, 55 AD3d 905). Accordingly, the Family Court properly denied the appellant’s motion to vacate the order of protection entered upon her default.The appellant’s remaining contentions are without merit.RIVERA, J.P., SGROI, DUFFY and IANNACCI, JJ., concur.By Dillon, J.P.; Chambers, Maltese and Barros, JJ.MATTER of Louis Cretella, res, v. Lani Stephens, ap — (Proceeding No. 1)MATTER of Lani Stephens, ap, v. Louis Cretella, res — (Proceeding No. 2) (Docket Nos. V-15466-14, V-15709-14)In related child custody proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Marybeth S. Richroath, J.), dated October 19, 2016. The order, insofar as appealed from, after a fact-finding hearing, awarded the mother and the father joint legal custody of the parties’ child with residential custody to the father.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The parties, who were never married, are the parents of a daughter born in 2012. In 2014, the parties separated and the father filed a petition seeking custody of the child. Thereafter, the mother petitioned for custody. After a fact-finding hearing, the Family Court awarded the parties joint legal custody of the child with residential custody to the father. The mother appeals.The paramount consideration in any custody dispute is the best interests of the child (see Eschbach v. Eschbach, 56 NY2d 167, 171). In determining an initial petition for child custody, the court must consider, among other things, which alternative will best promote stability for the child; the home environment with each parent; each parent’s past performance, relative fitness, and ability to guide and provide for the child’s overall well-being; and the willingness of each parent to foster a relationship with the other parent (see Matter of Estrada v. Palacious, 148 AD3d 804). Since custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the trial court’s credibility findings, and such findings will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Gooler v. Gooler, 107 AD3d 712, 712).The Family Court’s determination has a sound and substantial basis in the record. The mother engaged in a repeated pattern of interference in the father’s relationship with the child. The mother completely disregarded the best interests of the child by falsely accusing the father of abusing the child (see Mohen v. Mohen, 53 AD3d 471, 474). As a result of these accusations, the child was subjected to more than one medical examination to determine whether she had been abused. The Administration for Children’s Services determined that the allegations of abuse were unfounded. Moreover, there is sufficient evidence from which to conclude that the father was willing and able to foster a positive relationship between the child and the mother, and that the mother was not willing to do so for the father (see Matter of Keyes v. Watson, 133 AD3d 757, 758-759). Accordingly, the court’s determination will not be disturbed (see Matter of Fargasch v. Alves, 116 AD3d 774, 776).DILLON, J.P., CHAMBERS, MALTESE and BARROS, JJ., concur.By Mastro, J.P.; Cohen, Connolly and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Ray Hall, ap — (Ind. No. 5926/15)Paul Skip Laisure, New York, NY (Meredith S. Holt of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Keith Dolan of counsel; Masha Simonova on the brief), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Betty J. Williams, J.), rendered October 27, 2016, convicting him of attempted assault in the first degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.CPL 720.20(1) provides, in relevant part, that upon the conviction of an eligible youth, “at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender.” Compliance with this statutory mandate requires that the sentencing court actually consider and make a determination of whether an eligible youth is entitled to youthful offender treatment, “even where [the] defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request” (People v. Rudolph, 21 NY3d 497, 499; see People v. Thomas, 157 AD3d 723; People v. T.E., 131 AD3d 1067, 1068; People v. Dawkins, 131 AD3d 482, 483).Here, as the People correctly concede, the defendant, who pleaded guilty to attempted assault in the first degree by means of a dangerous instrument, was a youth eligible to be found a youthful offender (see CPL 720.10[1], [2]), and the record does not demonstrate that the Supreme Court considered and determined whether the defendant should be afforded youthful offender status. Accordingly, the defendant’s sentence must be vacated and the matter remitted to the Supreme Court, Kings County, for a determination of whether the defendant should be afforded youthful offender treatment, and, thereupon, resentencing (see People v. Rudolph, 21 NY3d at 503; People v. Thomas, 157 AD3d 723; People v. Watson, 154 AD3d 976; People v. Henry, 143 AD3d 1001; People v. Youmans, 140 AD3d 1097; People v. Eric P., 135 AD3d 882, 883).MASTRO, J.P., COHEN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Dillon, Maltese and Lasalle, JJ.MATTER of Galina Makaveyev, res, v. Victor Paliy, ap — (Docket No. F-8517-15)In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County (Thomas A. Rademaker, J.), dated April 5, 2017. The order denied the father’s objections to an order of the same court (Eileen Daly-Sapraicone, S.M.) dated December 28, 2016, which denied his motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated April 14, 2016, granting the mother’s petition upon his failure to appear at a hearing.ORDERED that the order dated April 5, 2017, is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the father’s objections are granted, the father’s motion to vacate the order dated April 14, 2016, is granted, the orders dated December 28, 2016, and April 14, 2016, are vacated, and the matter is remitted to the Family Court, Nassau County, for further proceedings on the mother’s petition.The mother filed a modification petition seeking an increase in child support to help pay for the child’s college expenses. After the father failed to appear at a hearing on April 6, 2016, the Support Magistrate issued an order dated April 14, 2016, granting the petition upon the father’s default and directing him to pay the sum of $1,333 per month in child support. The father moved to vacate the order dated April 14, 2016, and that motion was denied by the Support Magistrate in an order dated May 18, 2016. The father filed objections, which were denied by the Family Court in an order dated August 11, 2016.On November 16, 2016, the father filed a second motion to vacate the default and attached an affidavit from his oral surgeon attesting that he had undergone surgery the day before the hearing and was provided with instructions to refrain from normal activities for 24 hours thereafter. In an order dated December 28, 2016, the Support Magistrate denied the father’s motion to vacate on the ground that he failed to provide a reasonable excuse for his default in appearing at the hearing. In an order dated April 5, 2017, the Family Court denied the father’s objections to the order dated December 28, 2016. The father appeals from the order dated April 5, 2017.In seeking to vacate his default, the father was required to show that he had a reasonable excuse for his default and that he had a potentially meritorious defense (see Matter of Qwin L.X.P. [Leonard P.], 158 AD3d 698; Matter of Raphanello J.N.L.L. [RaSheem L.], 119 AD3d 580). The question of whether to relieve a party of an order entered on default is a matter left to the sound discretion of the court (see Matter of Peterson v. Eagan, 108 AD3d 772). However, orders entered upon default are disfavored in child support cases (see id. at 772; Matter of Morales v. Marma, 88 AD3d 722).Here, contrary to the Family Court’s conclusion, the father provided a reasonable excuse for his failure to appear at the scheduled hearing on April 6, 2016 (see Matter of Peterson v. Eagan, 108 AD3d 772; Matter of Morales v. Marma, 88 AD3d 722). In view of the evidence demonstrating that he underwent a surgical procedure the day before, the relative shortness of the delay, the absence of prejudice to the mother, and the public policy in favor of resolving cases on the merits, we find that the court improvidently exercised its discretion in denying the father’s objections (see Matter of Kathleen A.S. v. Donald L., 205 AD2d 544). Moreover, the father showed that he had a potentially meritorious defense to the mother’s petition (see Matter of Weintrob v. Weintrob, 87 AD3d 749, 751). Accordingly, the court should have granted the father’s objections to the order dated December 28, 2016.MASTRO, J.P., DILLON, MALTESE and LASALLE, JJ., concur.By Mastro, J.P.; Dillon, Maltese and Lasalle, JJ.MATTER of Angelique Guerra, ap, v. Douglas Oakes, res — (Docket Nos. V-1445-10, V-1446-10)Geanine Towers, Brooklyn, 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, Richmond County (Peter F. DeLizzo, J.), dated April 12, 2017. The order, insofar as appealed from, after a hearing, in effect, denied that branch of the mother’s petition which was to modify a prior order of the same court (Karen B. Wolff, J.), dated May 24, 2012, to award the mother unsupervised overnight alternate weekend physical access to the parties’ two children and granted the father’s cross petition to modify the same order to the extent of limiting the mother’s physical access to unsupervised parenting time on Sundays from 12:00 p.m. to 4:00 p.m. and supervised parenting time on Wednesdays from 6:00 p.m. to 7:30 p.m.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The parties have two children. By order on consent dated May 24, 2012, the father was granted sole legal and physical custody of the parties’ children and the mother was granted physical access on alternate weekends from Friday until Sunday evening to take place at the home of the mother’s cousin, another relative’s home, or a hotel, on notice to the father, and weekly physical access on Wednesday evenings. On or about January 29, 2016, the mother filed a petition seeking modification of the May 24, 2012, order to award her, inter alia, alternate weekend overnight physical access at her home. On or about February 12, 2016, the father filed a cross petition for modification of the same order to limit the mother to supervised, non-overnight physical access. After a hearing, the Family Court limited the mother’s physical access to unsupervised parenting time on Sundays from 12:00 p.m. to 4:00 p.m. and supervised parenting time on Wednesdays from 6:00 p.m. to 7:30 p.m., with no overnight physical access. The mother appeals.An existing order of physical access may be modified only upon a showing that there has been such a change in circumstances since the entry of the order that modification of the order is necessary to ensure the continued best interests and welfare of the children (see Matter of Licato v. Jornet, 146 AD3d 787; Matter of Rogan v. Guida, 143 AD3d 830; Matter of Rambali v. Rambali, 102 AD3d 797). Moreover, because determinations with regard to physical access depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, this Court accords deference to the Family Court’s findings and will not set them aside unless they lack a sound and substantial basis in the record (see Matter of Clarke v. Wiltshire, 145 AD3d 776). Furthermore, considerable deference must be accorded to the Family Court’s assessment of the parties, inasmuch as the assessment rests on that court’s superior position to evaluate the witnesses’ demeanor and credibility (see Matter of Wright v. Stewart, 131 AD3d 1256; Matter of Santano v. Cezair, 106 AD3d 1097).When determining issues of custody and physical access, the most important factor to be considered is the best interests of the children (see Eschbach v. Eschbach, 56 NY2d 167, 171; Matter of Jules v. Corriette, 76 AD3d 1016). Although the express wishes of the children are not controlling, “they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful” (Matter of Koppenhoefer v. Koppenhoefer, 159 AD2d 113, 117; see Matter of Licato v. Jornet, 146 AD3d 787, 787; Matter of Samuel S. v. Dayawathie R., 63 AD3d 746, 747; Matter of Manfredo v. Manfredo, 53 AD3d 498, 500; Matter of O’Connor v. Dyer, 18 AD3d 757, 757).Here, the Family Court’s determination was supported by a sound and substantial basis in the record, including the preference of the children, who were 14 and 9 years old, respectively, at the time of the hearing, not to have overnight physical access with the mother. Thus, the court’s determination will not be disturbed.The parties’ remaining contentions are without merit.MASTRO, J.P., DILLON, MALTESE and LASALLE, JJ., concur.By Leventhal, J.P.; Cohen, Hinds-Radix and Connolly, JJ.MATTER of Stephen Robinson, res, v. David Anthony Benjamin, ap — (Docket No. O-11042-16)In a family offense proceeding, David Anthony Benjamin appeals from an order of protection of the Family Court, Nassau County (Thomas Rademaker, J.), dated February 1, 2017. The order of protection, upon a finding that the appellant, in effect, committed the family offense of harassment in the second degree, made after a fact-finding hearing, directed him to refrain from certain conduct with respect to the petitioner up to and including July 31, 2017.ORDERED that the order of protection is reversed, on the facts, without costs or disbursements, the finding that the appellant, in effect, committed the family offense of harassment in the second degree is vacated, the petition is denied, and the proceeding is dismissed.The petitioner commenced this proceeding pursuant to Family Court Act article 8, alleging that the appellant, who was his child’s grandfather, had committed various family offenses against him and seeking an order of protection. Following a fact-finding hearing, the Family Court determined that the appellant, in effect, had committed the family offense of harassment in the second degree. The court subsequently issued an order of protection which directed the appellant to refrain from certain conduct towards the petitioner for a period of six months.Initially, even though the order of protection expired by its own terms, this appeal has not been rendered academic “‘given the totality of the enduring legal and reputational consequences of the contested order of protection’” (Sommella v. Kimble, 150 AD3d 1018, 1018, quoting Matter of Pierre v. Dal, 142 AD3d 1021, 1022; see Matter of Blamoville v. Culbertson, 151 AD3d 1058, 1059).Contrary to the appellant’s contention, the petitioner established that the parties were in an “intimate relationship,” and therefore, the petitioner had standing to commence a family offense proceeding against the appellant (Family Ct Act §812[1][e]; see Matter of Filipowski v. Sullivan-Tirelli, 139 AD3d 1063, 1064; Matter of Winston v. Edwards-Clarke, 127 AD3d 771, 773).“In a family offense proceeding, the petitioner has the burden of establishing, by a ‘fair preponderance of the evidence,’ that the charged conduct was committed as alleged in the petition” (Matter of Cassie v. Cassie, 109 AD3d 337, 340, quoting Family Ct Act §832; see Matter of Stanislaus v. Stanislaus, 155 AD3d 963, 963-964; Matter of Frimer v. Frimer, 143 AD3d 895, 896). ”The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and its determinations regarding the credibility of witnesses are entitled to great weight on appeal, such that they will not be disturbed unless clearly unsupported by the record” (Matter of Porter v. Moore, 149 AD3d 1082, 1083; see Matter of Henderson v. Henderson, 137 AD3d 911, 912).Here, the petitioner failed to establish by a fair preponderance of the evidence that the appellant, in effect, committed the family offense of harassment in the second degree. The testimony at the hearing established only that the appellant stated that he would “kick [the petitioner's] ass” when he saw him on the street. Such conduct does not establish the family offense of harassment in the second degree as there was no evidence that the statement was “either serious [or] should reasonably have been taken to be serious” (People v. Dietze, 75 NY2d 47, 53; see Matter of Marte v. Biondo, 104 AD3d 947).Since the Family Court’s factual determinations were not supported by the record, we vacate the finding that the appellant, in effect, committed the family offense of harassment in the second degree (see Matter of Stanislaus v. Stanislaus, 155 AD3d at 964). Accordingly, we reverse the order of protection, which was based solely on the finding that the appellant, in effect, committed the family offense of harassment in the second degree, deny the family offense petition, and dismiss the proceeding (see id.; Matter of London v. Blazer, 2 AD3d 860, 861).In light of our determination, we need not address the appellant’s remaining contention.LEVENTHAL, J.P., COHEN, HINDS-RADIX and CONNOLLY, JJ., concur.By Leventhal, J.P.; Cohen, Hinds-Radix and Connolly, JJ.MATTER of Mery Saquipay, res, v. Jose Puzhi, ap — (Docket No. O-11333-16)Adewole Agbayewa, Fresh Meadows, NY, for appellant.Heath J. Goldsein, Jamaica, NY, for respondent.John C. Macklin, New Hyde Park, NY, attorney for the child.In a proceeding pursuant to Family Court Act article 8, Jose Puzhi appeals from an order of protection of the Family Court, Queens County (Marilyn L. Zarrello, Ct. Atty. Ref.), dated February 24, 2017. The order of protection, upon a finding that the appellant committed the family offenses of attempted assault in the third degree, harassment in the second degree, menacing in the third degree, and disorderly conduct, made after a fact-finding hearing, directed him, inter alia, to stay away from the petitioner until and including February 24, 2018.ORDERED that the order of protection is affirmed, without costs or disbursements.The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the appellant, the father of the parties’ child. After a hearing, the Family Court found that the appellant committed the family offenses of attempted assault in the third degree, harassment in the second degree, menacing in the third degree, and disorderly conduct. The court issued an order of protection, inter alia, directing the appellant to stay away from the petitioner until and including February 24, 2018.Although the order of protection expired by its own terms on February 24, 2018, the appeal has not been rendered academic in light of the enduring consequences which may flow from a finding that the appellant committed a family offense (see Matter of Veronia P. v. Radcliff A., 24 NY3d 668, 673).The allegations in a family offense proceeding must be “supported by a fair preponderance of the evidence” (Family Ct Act §832; see Matter of Shank v. Shank, 155 AD3d 875, 876; Matter of Fuel v. Chaca, 150 AD3d 1231, 1232; Matter of Cassie v. Cassie, 109 AD3d 337, 340). ”The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record” (Matter of Richardson v. Richardson, 80 AD3d 32, 43-44; see Matter of Shank v. Shank, 155 AD3d at 876; Matter of Fuel v. Chaca, 150 AD3d at 1232; Matter of Nusbaum v. Nusbaum, 59 AD3d 725, 725).Here, a fair preponderance of the evidence adduced at the hearing supports the Family Court’s determination that the appellant committed acts constituting the family offenses of attempted assault in the third degree (see Penal Law §§110.00, 120.00[1]; Matter of Fuel v. Chaca, 150 AD3d at 1232; Matter of King v. King, 150 AD3d 1116, 1117) and harassment in the second degree (see Penal Law §240.26 [1][2]; Matter of Shank v. Shank, 155 AD3d at 876-877; Matter of Fuel v. Chaca, 150 AD3d at 1232; Matter of Polizzi v. McCrea, 129 AD3d 733, 734; Matter of Messana v. Messana, 115 AD3d 860, 861). The evidence demonstrated that on June 14, 2016, the appellant attempted to cause the petitioner to sustain a physical injury when he pulled the petitioner by the arm, pushed her against a wall, and pushed her by the shoulders, causing her to fall to the floor (see Penal Law §§110.00, 120.00[1]; Matter of Fuel v. Chaca, 150 AD3d at 1232; Matter of King v. King, 150 AD3d at 1117). Further, the evidence demonstrated that the appellant, with the intent to harass, annoy, or alarm the petitioner, kicked her on November 26, 2015, threatened to cause her physical harm during an April 2016 telephone call, and followed her in or about a public place on June 14, 2016 (see Penal Law §240.26[1][2]; Matter of Shank v. Shank, 155 AD3d at 876-877; Matter of Fuel v. Chaca, 150 AD3d at 1232; Matter of Polizzi v. McCrea, 129 AD3d at 734; Matter of Messana v. Messana, 115 AD3d at 861).However, contrary to the Family Court’s findings, the petitioner failed to establish that the appellant committed the family offenses of menacing in the third degree and disorderly conduct. There was insufficient evidence that the appellant placed or attempted to place the petitioner in fear of death, imminent serious physical injury, or physical injury by physical menace (see Penal Law §120.15; Paruchuri v. Akil, 156 AD3d 712, 714; Matter of Frimer v. Frimer, 143 AD3d 895, 897). In addition, the evidence failed to establish that the appellant’s conduct was committed with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm (see Penal Law §240.20; Paruchuri v. Akil, 156 AD3d at 714; Matter of Shiffman v. Handler, 115 AD3d 753, 753; Cassie v. Cassie, 109 AD3d 337, 344; Matter of Hasbrouck v. Hasbrouck, 59 AD3d 621, 621-622).Under the circumstances of this case, and in light of the reasonable necessity of providing protection to the petitioner, we find no basis to disturb the order of protection (see Family Ct Act §842; Matter of Shank v. Shank, 155 AD3d at 877; Matter of Frimer v. Frimer, 143 AD3d at 897; Matter of Pochat v. Pochat, 125 AD3d 660, 662).LEVENTHAL, J.P., COHEN, HINDS-RADIX and CONNOLLY, JJ., concur.By Leventhal, J.P.; Miller, Duffy and Lasalle, JJ.MATTER of Giovanna Merritt, res, v. Mark Merritt, ap — (Docket No. F-10750-14)In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Westchester County (Rachel Hahn, J.), dated December 13, 2016. The order, insofar as appealed from, denied the father’s objections to so much of an order of the same court (Esther Furman, S.M.) entered September 23, 2016, as denied his petition for a downward modification of his child support obligation, granted the mother’s violation petition, found that the father willfully violated a prior order of child support, and directed the entry of a money judgment in favor of the mother and against him in the sum of $17,215.ORDERED that the order dated December 13, 2016, is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, the father’s objections are granted, so much of the order entered September 23, 2016, as denied the father’s petition for a downward modification of his child support obligation, granted the mother’s violation petition and confirmed the Support Magistrate’s finding that the father willfully violated a prior order of child support, and directed the entry of a money judgment in favor of the mother and against the father in the sum of $17,215 is vacated, and the matter is remitted to the Family Court, Westchester County, for a hearing and determination of the amount of the father’s reduced child support obligation.The mother and the father were married and have three children together. The parties were divorced in 2010. Pursuant to the judgment of divorce and the stipulation of settlement that was incorporated but not merged into the judgment, the father was ordered to pay child support in the sum of $3,272 per month, and $2,000 per month in maintenance for a period of 60 months. The judgment further provided that child support was to be recalculated each year based upon the father’s W-2 from the prior year, and that it would be recalculated after the maintenance obligation terminated. Moreover, the father’s entire income would be considered in calculating child support. In 2014, the mother filed a petition to modify the judgment to increase the amount of child support. In an order dated December 23, 2014, entered on consent, the father was directed to pay child support in the sum of $4,593 per month, and the parties agreed to cap the child support percentage on $200,000 of the father’s base salary, with additional amounts to be paid to the mother based on the father’s annual bonus, if any, up to $155,000 of bonus income.In April 2015, the father became unemployed, and on December 10, 2015, he filed a petition for a downward modification, alleging a substantial change in circumstances based on his unemployment. On April 13, 2016, the mother filed a violation petition, contending that the father paid only $1,150 in child support for the month of April 2016. On May 6, 2016, the mother filed a separate petition for an upward modification of child support. In an order entered September 23, 2016, after a hearing, the Support Magistrate denied the father’s petition for a downward modification and the mother’s petition for an upward modification, granted the mother’s violation petition and found the father in willful violation of the order dated December 23, 2014, and directed the entry of a money judgment against the father in the sum of $17,215. The father filed objections to the Support Magistrate’s order and, by order dated December 13, 2016, the Family Court denied the objections. The father appeals from the order dated December 13, 2016.The mother’s undisputed evidence of the father’s failure to pay the total amount of child support as ordered constituted prima facie evidence of a willful violation (see Matter of Powers v. Powers, 86 NY2d 63, 69; Matter of Morgan v. Spence, 139 AD3d 859, 861; Matter of Yuen v. Sindhwani, 137 AD3d 1155, 1156; Matter of McMinn v. Taylor, 118 AD3d 887, 888). The burden then shifted to the father to present competent, credible evidence of his financial inability to comply (see Family Ct Act §455[5]; Matter of Powers v. Powers, 86 NY2d at 69-70; Matter of Morgan v. Spence, 139 AD3d at 861; Matter of Yuen v. Sindhwani, 137 AD3d at 1156; Matter of Logue v. Abell, 97 AD3d 582, 583). The father met that burden by demonstrating that he was laid off from his employment in April 2015, and that he collected unemployment benefits. Further, the record contained evidence of the father’s active, but unsuccessful, pursuit of employment (see Matter of Morgan v. Spence, 139 AD3d at 861; Matter of Kainth v. Kainth, 36 AD3d 915, 916). Although the father did consulting work, this work was sporadic, and his income for 2016 as of the date of the hearing was drastically reduced from his earnings in 2015. The record further showed that the father paid the full amount of child support owed through March 2016 from his savings and from the bonus he received in April 2015 for work performed in 2014, as well as from the money he received after he cashed in his profit sharing plan. Thereafter, beginning in April 2016, the father paid child support in a reduced amount, which was approximately 29 percent of the income he earned from his consulting work. There was no evidence that the father had any other assets with which to further meet his obligations. Under these circumstances, the Family Court should have granted the father’s objection to so much of the Support Magistrate’s order as granted the mother’s violation petition and found him to be in willful violation of the order dated December 23, 2014 (see Matter of Morgan v. Spence, 139 AD3d at 861; Matter of Lecei v. Lecei, 112 AD3d 629, 630; Matter of Ceballos v. Castillo, 85 AD3d 1161, 1164).The Family Court also should have granted the father’s objection to so much of the Support Magistrate’s order as denied the father’s petition for a downward modification of his child support obligation. “To establish entitlement to a downward modification of a child support order entered on consent, a party has the burden of showing that there has been a substantial change in circumstances” (Matter of Ceballos v. Castillo, 85 AD3d at 1162; see Matter of Holmes v. Holmes, 140 AD3d 1066, 1067; Matter of Morgan v. Spence, 139 AD3d at 861). Here, the father’s evidence established that the termination of employment occurred through no fault of his own and that he diligently sought re-employment commensurate with his earning capacity (see Matter of Holmes v. Holmes, 140 AD3d at 1067-1068; Matter of Rolko v. Intini, 128 AD3d 705, 706; Matter of Riendeau v. Riendeau, 95 AD3d 891, 892). Such evidence was sufficient to demonstrate a substantial change of circumstances warranting downward modification of his child support obligation (see Matter of Goehringer v. Vozza-Nicolosi, 139 AD3d 949, 949; Matter of Morgan v. Spence, 139 AD3d at 861; Matter of Ceballos v. Castillo, 85 AD3d at 1163). Therefore, we remit the matter to the Family Court, Westchester County, for a hearing and determination of the amount of the father’s reduced child support obligation.LEVENTHAL, J.P., MILLER, DUFFY and LASALLE, JJ., concur.By Scheinkman, P.J.; Balkin, Austin and Hinds-Radix, JJ.MATTER of Michael Matthew Mendez, res, v. Lesly Limas, ap — (Proceeding No. 1)MATTER of Lesly Limas, ap, v. Michael Matthew Mendez, res — (Proceeding No. 2) (Docket Nos. V-2017-15/16F, V-2017-15/16G)Joseph Petito, Poughkeepsie, NY, for respondent.John A. Pappalardo, White Plains, NY (Olivia T. Marotta of counsel), attorney for the child.In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Dutchess County (Tracy Cass MacKenzie, J.), dated May 18, 2017. The order, insofar as appealed from, after a hearing, awarded the parties joint legal and residential custody of the subject child.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The father and the mother are the parents of a child. Pursuant to an order of custody on consent dated December 14, 2015, the mother and the father had joint legal custody of the child, and the mother had primary physical custody of the child subject to a schedule of physical access for the father. Thereafter, the mother and the father each filed a petition alleging a violation of the custody order. The mother also filed a petition seeking to modify the order.The Family Court held a limited hearing by agreement of the parties at which they each testified in narrative form without cross-examination by the other party; only the court and the attorney for the child questioned them. In an order dated May 18, 2017, the court, inter alia, awarded the parties joint legal and residential custody of the child.An existing court-sanctioned custody arrangement may be modified only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child (see Matter of O’Shea v. Parker, 116 AD3d 1051). An existing court-ordered visitation arrangement may be modified only upon a showing that there has been a subsequent change of circumstances and modification is required (see Family Ct Act §467[b][ii]; Matter of James M. v. Kevin M., 99 AD3d 911). The paramount concern in any custody or visitation determination is the best interests of the child, under the totality of the circumstances (see Eschbach v. Eschbach, 56 NY2d 167, 172; Friederwitzer v. Friederwitzer, 55 NY2d 89, 96; Matter of James M. v. Kevin M., 99 AD3d 911). Since custody and visitation determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the Family Court’s findings (see Matter of James M. v. Kevin M., 99 AD3d 911). Therefore, its findings should not be set aside unless they lack a sound and substantial basis in the record (see id.).Here, the mother and the father consented to the Family Court conducting only a limited hearing, thus waiving their right to a full evidentiary hearing (see id.; Matter of Aquino v. Antongiorgi, 92 AD3d 780, 781; Matter of Goldman v. Goldman, 201 AD2d 860, 862). Contrary to the contention of the mother, the court’s determination awarding the parties joint legal and residential custody was supported by a sound and substantial basis in the record. Thus, the court’s determination will not be disturbed (see Matter of James M. v. Kevin M., 99 AD3d 911; Matter of Davis v. Pignataro, 97 AD3d 677).SCHEINKMAN, P.J., BALKIN, AUSTIN and HINDS-RADIX, JJ., concur.By Mastro, J.P.; Cohen, Connolly and Brathwaite Nelson, JJ.MATTER of Dieucothaaam P. T. (Anonymous). Westchester County Department of Social Services, petitioner-res; Laiwens M. (Anonymous), appellant res — (Docket Nos. B-6285-16, B-6287-16)In a proceeding pursuant to Social Services Law §384-b, the mother appeals from an order of fact-finding and disposition of the Family Court, Westchester County (Nilda Morales-Horowitz, J.), dated November 9, 2016. The order of fact-finding and disposition, insofar as appealed from, granted the motion of the Westchester County Department of Social Services for summary judgment on that branch of its petition which was to terminate the mother’s parental rights as to the subject child on the basis of mental illness, and transferred the custody and guardianship of the child to the Westchester County Department of Social Services for the purpose of adoption.ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.Laiwens M. (hereinafter the mother) is the mother of Dieurison T. and the subject child, Dieucothaaam P. T. In 2015, the Westchester County Department of Social Services (hereinafter the petitioner) filed a petition to terminate the mother’s parental rights as to Dieurison T., alleging that a mental illness rendered her incapable of caring for Dieurison T., both presently and for the foreseeable future. In July 2015, the mother was evaluated by a court-appointed psychologist who later testified at the fact-finding hearing. At the conclusion of the fact-finding hearing, the Family Court found that the mother suffered from mental illness and, by reason of that mental illness, was presently and for the foreseeable future unable to provide proper and adequate care for Dieurison T. The court terminated the mother’s parental rights as to Dieurison T. and transferred custody of Dieurison T. to the petitioner and, on appeal, this Court affirmed (Matter of Dieurison T. [Jean T.], 152 AD3d 609).In May 2016, the petitioner filed a petition, inter alia, to terminate the mother’s parental rights as to the subject child. That petition alleged that the mother was mentally ill and that she had permanently neglected the subject child. The petitioner then moved for summary judgment, contending that the recent finding of mental illness made by the Family Court in the termination of parental rights proceeding concerning Dieurison T. conclusively established that the mother is mentally ill for the purpose of the instant proceeding. In opposition, the mother submitted the affirmation of her attorney, who argued that the mother had been in “consistent treatment” and, “[u]pon information and belief,” “ha[d] done no act which has presented as a danger or shown any neglect to her son while visiting with the infant.” The Family Court, without holding a hearing or ordering a new psychological evaluation, granted the petitioner’s motion for summary judgment.The Family Court properly granted the petitioner’s motion for summary judgment. The evidence submitted by the petitioner established, prima facie, that the mother was presently, and would continue for the foreseeable future to be, unable to provide proper and adequate care for the subject child by reason of her mental illness (see Matter of Summer SS. [Thomas SS.], 139 AD3d 1118; Matter of Bruce P., 138 AD3d 864; Matter of Majerae T. [Crystal T.], 74 AD3d 1784; Matter of P.E.G., 5 Misc 3d 1029[A], 2004 NY Slip Op 51611[U] [Fam Ct, Nassau County 2004]). Contrary to the mother’s contention, the court was not required to order a new mental health evaluation (see Matter of Bruce P., 138 AD3d 864; Matter of Majerae T. [Crystal T.], 74 AD3d 1784; Matter of P.E.G., 5 Misc 3d 1029[A], 2004 NY Slip Op 51611[U]). In opposition to the petitioner’s prima facie showing, the mother failed to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 NY2d 320, 324).The mother’s remaining contentions are without merit.MASTRO, J.P., COHEN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Leventhal, J.P.; Miller, Duffy and Lasalle, JJ.MATTER of Dolores Feliciano, ap, v. Andrew King, res — (Docket No. V-4338-10/16H/16I)In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Bernard Cheng, J.), dated January 12, 2017. The order granted the father’s motion to dismiss the mother’s petition to modify an order of custody so as to award her sole custody of the parties’ child, and denied, as academic, the mother’s motion to remove the attorney for the child from the case.ORDERED that the order is affirmed, without costs or disbursements.In this child custody proceeding, the mother filed a petition to modify the parties’ custody arrangement, as set forth in a so-ordered stipulation, so as to award her sole custody of the parties’ child. The father moved to dismiss the petition, and the mother moved to remove the attorney for the child from the case. The Family Court granted the father’s motion, finding that the mother had failed to set forth a sufficient change in circumstances to warrant a hearing, and denied the mother’s motion as academic. The mother appeals.The Family Court properly granted the father’s motion to dismiss the mother’s petition without a hearing. In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child (see Matter of Baalla v. Baalla, 158 AD3d 678; Matter of Cusano v. Coitino, 155 AD3d 722, 723; Gentile v. Gentile, 149 AD3d 916, 918). A parent seeking a change of custody is not automatically entitled to a hearing; rather, he or she must make an evidentiary showing of a change in circumstances demonstrating a need for a change of custody in order to insure the child’s best interests (see Gentile v. Gentile, 149 AD3d at 918; Matter of Ruiz v. Sciallo, 127 AD3d 1205, 1206; Matter of Dana H. v. James Y., 89 AD3d 844, 845). Here, the mother failed to make an evidentiary showing that there had been a change in circumstances sufficient to warrant a change in custody. The unsubstantiated and conclusory allegations in her petition were insufficient to warrant a hearing (see Matter of Chichra v. Chichra, 148 AD3d 883, 885; Matter of Ali v. Hines, 125 AD3d 851, 851-852).The Family Court correctly denied, as academic, the mother’s motion to remove the attorney for the child.LEVENTHAL, J.P., MILLER, DUFFY and LASALLE, JJ., concur.By Dillon, J.P.; Leventhal, Connolly and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Bergin Perez, ap — (Ind. No. 15-00634)Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas De Rosa, J.), rendered June 21, 2016, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s challenges to the validity of his plea of guilty are unpreserved for appellate review because he failed to move to withdraw his plea on these grounds before the County Court (see People v. Clarke, 93 NY2d 904, 906; People v. Villalobos, 71 AD3d 924, 924; People v. Ross, 41 AD3d 870, 870). In any event, the record as a whole affirmatively demonstrates that the defendant entered his plea of guilty knowingly, voluntarily, and intelligently (see People v. Conceicao, 26 NY3d 375, 382-383; People v. Thomas, 150 AD3d 770, 771).Contrary to the People’s contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 NY3d 257, 264; People v. Brown, 122 AD3d 133, 136). Although the defendant signed a written waiver of his right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Spanish language interpreter, before it was presented to him for signature (see People v. Guarchaj, 122 AD3d 878, 879; People v. Pelaez, 100 AD3d 803, 803). As the defendant’s purported waiver of his right to appeal was invalid, it does not does not preclude appellate review of his excessive sentence claim.However, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Green Tree Servicing, LLC, res, v. Justine Vitaliti, etc., appellant def — (Index No. 35465/13)Vital & Associates, PLLC, New York, NY (Y. Andre Vital of counsel), for appellant.Fein Such & Crane, LLP, Westbury, NY (Michael S. Hanusek of counsel), for respondent.In an action to foreclose a mortgage, the defendant Justine Vitaliti appeals from a judgment of foreclosure and sale of the Supreme Court, Rockland County (William A. Kelly, J.), dated May 26, 2017, which, upon an order of the same court dated March 14, 2016, inter alia, granting those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against her, striking her answer, and directing the appointment of a referee, and denying that branch of her cross motion which was for summary judgment dismissing the complaint insofar as asserted against her, is in favor of the plaintiff and against her, directing the sale of the subject premises.ORDERED that the judgment of foreclosure and sale is reversed, on the law, with costs, those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Justine Vitaliti, striking that defendant’s answer, and directing the appointment of a referee are denied, the order dated March 14, 2016, is modified accordingly, and the answer of the defendant Justine Vitaliti is reinstated.On July 12, 2005, the defendant Justine Vitaliti and the defendant Joseph W. Lopez executed a promissory note in the amount of $304,000 in favor of GMAC Mortgage Corporation (hereinafter GMAC). The note was secured by a mortgage encumbering real property located in Valley Cottage, New York. In August 2008, Lopez and Vitaliti deeded the subject property to Vitaliti. On September 17, 2010, Vitaliti entered into a loan modification agreement with GMAC’s successor, GMAC Mortgage, LLC. Vitaliti thereafter allegedly defaulted on the loan by failing to make the monthly installment payments due June 1, 2012, and thereafter.In October 2013, the plaintiff commenced this action against Vitaliti and others to foreclose the mortgage, alleging, in relevant part, that it was the holder of the subject note, which had been endorsed and negotiated. Vitaliti served an answer in which she raised, inter alia, lack of standing as an affirmative defense.Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against Vitaliti, to strike Vitaliti’s answer, and for the appointment of a referee. Vitaliti cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against her. In an order dated March 14, 2016, the Supreme Court granted the plaintiff’s motion and denied Vitaliti’s cross motion. A judgment was subsequently entered in favor of the plaintiff and against Vitaliti, directing the sale of the subject premises. Vitaliti appeals.“‘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. Brewton, 142 AD3d 683, 684, quoting Plaza Equities, LLC v. Lamberti, 118 AD3d 688, 689; see U.S. Bank N.A. v. Cruz, 147 AD3d 1103, 1103). However, where a defendant places standing in issue, the plaintiff must prove its standing in order to be entitled to relief (see Deutsche Bank Natl. Trust Co. v. Brewton, 142 AD3d at 684; Aurora Loan Servs., LLC v. Taylor, 114 AD3d 627, 628, affd 25 NY3d 355; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, 242). A plaintiff has standing in a mortgage foreclosure action when 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 at 361; Deutsche Bank Natl. Trust Co. v. Brewton, 142 AD3d at 684). ”A ‘holder’ is ‘the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession’” (Deutsche Bank Natl. Trust Co. v. Brewton, 142 AD3d at 684, quoting UCC 1-201[b][21]; see Deutsche Bank Natl. Trust Co. v. Webster, 142 AD3d 636, 638; Wells Fargo Bank, NA v. Ostiguy, 127 AD3d 1375, 1376).Here, the plaintiff produced the mortgage, the unpaid note, and evidence of Vitaliti’s default. However, the plaintiff failed, prima facie, to establish its standing. Where, as here, the note has been endorsed in blank, the purported holder of the note must establish its standing by demonstrating that the original note was physically delivered to it prior to the commencement of the action (see Deutsche Bank Natl. Trust Co. v. Brewton, 142 AD3d at 685; U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 754). The plaintiff attempted to establish its standing through the affidavit of Chelsie Hall, a document execution specialist at Ditech Financial, LLC (the name under which the plaintiff currently conducts business). Based on her review of the plaintiff’s business records, Hall averred, in relevant part, that “[the] [p]laintiff acquired the original [n]ote on July 25, 2005.” However, the additional documentary evidence submitted by the plaintiff in support of its motion for summary judgment showed that Vitaliti continued to deal with the originating lender, GMAC, until at least 2012. As Vitaliti correctly contends, these documents, at minimum, raise questions as to the accuracy of the July 25, 2005, date provided by Hall, which was the only proof relied upon by the plaintiff to establish its standing. Absent any other admissible proof that the plaintiff had received physical delivery of the original note prior to the commencement of the action, or any other explanation that would resolve the questions raised by the plaintiff’s own documentary evidence, the plaintiff failed to establish, prima facie, its standing to commence the action. Accordingly, those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against Vitaliti, to strike Vitaliti’s answer, and to direct the appointment of a referee should have been denied, regardless of the sufficiency of Vitaliti’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851).Contrary to Vitaliti’s contention, however, the Supreme Court did not err in denying her cross motion for summary judgment dismissing the complaint insofar as asserted against her, as she failed to establish her prima facie entitlement to such relief (see id.).CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Austin, J.P.; Roman, Sgroi and Connolly, JJ.James Kirk, ap, v. Isaac Nahon res — (Index No. 5069/15)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered November 30, 2016. The order, insofar as appealed from, granted that branch of the defendants’ motion which was, in effect, to strike the plaintiff’s second and third supplemental bills of particulars.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff commenced this action against the defendants to recover damages for personal injuries allegedly sustained by him after his vehicle was hit in the rear by the defendants’ vehicle. The bill of particulars and supplemental bill of particulars alleged various injuries to the plaintiff’s back, neck, and knee. The plaintiff later served what he denominated a “second supplemental bill of particulars,” which alleged “consequential stroke,” and thereafter, a “third supplemental bill of particulars,” which amplified the allegations as to the stroke. The plaintiff had previously represented at his deposition that there was no causal connection between the stroke he suffered and the accident. The defendants moved, inter alia, in effect, to strike the second and third supplemental bills of particulars. The Supreme Court granted those branches of the motion, and the plaintiff appeals.Contrary to the plaintiff’s contention, the documents he denominated the “second supplemental bill of particulars” and “third supplemental bill of particulars” were, in reality, amended bills of particulars, as they sought to add new injuries (see CPLR 3403[b]; Fuentes v. City of New York, 3 AD3d 549, 550; Danne v. Otis El. Corp., 276 AD2d 581, 582; DeNicola v. Mary Immaculate Hosp., 272 AD2d 505, 506; Kyong Hi Wohn v. County of Suffolk, 237 AD2d 412). While leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise, here, the plaintiff failed to establish the absence of prejudice or surprise to the defendants, and failed to adequately explain the delay in seeking to add the new injuries (see Rodgers v. New York City Tr. Auth., 109 AD3d 535, 537).The plaintiff’s remaining contention, raised for the first time on appeal, is not properly before this Court.Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was, in effect, to strike the second and third supplemental bills of particulars.AUSTIN, J.P., ROMAN, SGROI and CONNOLLY, JJ., concur.By Leventhal, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Carlos Sanchez, a/k/a Jorge Bello, ap — (Ind. No. 305/09)Patrick Michael Megaro, Forest Hills, NY, for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Eric C. Washer of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered February 19, 2014, convicting him of murder in the second degree and assault in the first 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.Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt of murder in the second degree and assault in the first degree beyond a reasonable doubt (see People v. Danielson, 9 NY3d 342, 349). The evidence was sufficient to establish that the defendant was a knowing accomplice to murder rather than a mere bystander or an accessory after the fact (see People v. Griffin, 145 AD3d 1551; People v. Evans, 142 AD3d 1291). The evidence established that the defendant was not merely present at the scene, but intentionally aided his companion in the commission of the murder (see People v. Ferrara, 220 AD2d 612; People v. Dazi, 195 AD2d 571). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348), we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).The Supreme Court meaningfully responded to the jury note requesting the elements of murder in the second degree. The court gave the jury exactly the guidance it had asked for, and contrary to the defendant’s contention, it was not obliged to add a discussion of acting in concert, which the jury did not request (see People v. Martinez, 8 AD3d 8; People v. Williams, 297 AD2d 565).The defendant’s remaining contention, regarding that branch of his omnibus motion which was to suppress identification testimony, is without merit (see People v. Gill, 99 NY2d 158).LEVENTHAL, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Leventhal, Connolly and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Marvin Geovany Mejia, ap — (Ind. No. 15-00991)Robert Schuster, Mt. Kisco, NY (John R. Lewis of counsel), for appellant.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (William C. Milaccio and Steven A. Bender of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), rendered November 29, 2016, convicting him of rape in the third degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant was charged with rape in the first degree (Penal Law §130.35[1]), rape in the third degree (Penal Law §130.25[3]), and two counts of sexual abuse in the first degree (Penal Law §130.65[1]).During the charge conference, defense counsel requested that the Supreme Court not submit the rape in the third degree count for the jury’s consideration. The court denied the request. The defendant was acquitted of rape in the first degree and both counts of sexual abuse in the third degree, but was convicted of rape in the third degree.The defendant contends that the Supreme Court erred in submitting the count of rape in the third degree for the jury’s consideration. Rape in the third degree is a noninclusory concurrent count of rape in the first degree (see CPL 300.50[6]; People v. Evans, 79 AD3d 454, 455). When offenses are noninclusory, the submission of the less serious count is not mandatory; rather it is a matter for the trial court’s discretion whether to dismiss the count (see CPL 300.40[3][a]; People v. Leon, 7 NY3d 109, 113; People v. Boyd, 152 AD3d 53, 56, affd__NY3d__, 2018 NY Slip Op 02120 [2018]; People v. Pitterson, 45 AD3d 308, 310). ”In exercising its discretion, the court ha[s] to weigh competing possibilities: Would the submission of the [less serious] count help the jury arrive at a fair verdict, or would it simply provide a distraction or an opportunity to split the difference?” (People v. Leon, 7 NY3d at 114). Here, the court’s submission to the jury of the count of rape in third degree was not an improvident exercise of discretion (see People v. Urbina, 99 AD3d 821, 822). Moreover, even if the verdict was motivated by leniency, this is not a ground for reversal, as the verdict was not repugnant as a matter of law (see People v. Rayam, 94 NY2d 557, 562; People v. Barrow, 103 AD3d 745, 746; People v. Donovan, 58 AD3d 640, 641; People v. Vitta, 220 AD2d 468, 469).Additionally, the defendant was not deprived of a fair trial by the testimony of a prosecution witness which may have created an inference that he had a criminal record. The Supreme Court’s actions in striking the objectionable testimony from the record and issuing a curative instruction eliminated any prejudice to the defendant (see People v. Schlackman, 153 AD3d 641, 642; People v. Onikosi, 140 AD3d 516, 517-518; People v. Spears, 140 AD3d 1629, 1630; People v. Arena, 70 AD3d 1044, 1046-1047; People v. Whitely, 41 AD3d 622, 623; People v. Carter, 40 AD3d 1310, 1313). The court did not err in declining defense counsel’s request to issue further instructions during the charge regarding this testimony.DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Wells Fargo Bank, N.A., etc., res, v. Roop F. Syed def, Sajeeda Aleem, ap — (Index No. 10857/12)In an action to foreclose a mortgage, the defendant Sajeeda Aleem appeals from two orders of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered June 12, 2015, and March 18, 2016, respectively. The order entered June 12, 2015, granted the plaintiff’s unopposed motion, inter alia, for summary judgment on the complaint insofar as asserted against her, and for an order of reference. The order entered March 18, 2016, denied her motion pursuant to CPLR 5015(a) to vacate the order entered June 12, 2015, and thereupon, for leave to submit opposition papers.ORDERED that the appeal from the order entered June 12, 2015, is dismissed; and it is further,ORDERED that the order entered March 18, 2016, is affirmed; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.In this mortgage foreclosure action, the Supreme Court, by order entered June 12, 2015, granted the plaintiff’s unopposed motion, inter alia, for summary judgment on the complaint insofar as asserted against the appellant, and for an order of reference. Thereafter, the appellant moved pursuant to CPLR 5015(a) to vacate the order entered June 12, 2015, and thereupon, for leave to submit opposition papers, and the court denied the motion.The appellant failed to submit papers to the Supreme Court in opposition to the plaintiff’s motion for summary judgment and an order of reference, and the motion was granted on default. No appeal lies from an order or judgment granted upon the default of the appealing party (see CPLR 5511; J.F.J. Fuel, Inc. v. Tran Camp Contr. Corp., 105 AD3d 908, 908; Washington Mut. Bank v. Valencia, 92 AD3d 774, 774; HSBC Mtge. Corp. [USA] v. MacPherson, 89 AD3d 1061, 1062; D’Agostino Law Off., P.C. v. Parlante, 58 AD3d 668, 669). Since the order entered June 12, 2015, was entered upon the appellant’s default in opposing the motion, the appeal from that order must be dismissed (see Lumbermen’s Mut. Cas. Co. v. Fireman’s Fund Am. Ins. Co., 117 AD2d 588).The appellant’s motion pursuant to CPLR 5015(a) to vacate the order entered June 12, 2015, and thereupon, for leave to submit opposition papers was properly denied. A party seeking to vacate an order entered upon its default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Paul v. Weatherwax, 146 AD3d 792; Santos v. Penske Truck Leasing Co., 105 AD3d 1029). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court (see Lyubomirsky v. Lubov Arulin, PLLC, 125 AD3d 614). Here, the court providently exercised its discretion in determining that the appellant failed to proffer a reasonable excuse for her default. Inasmuch as the appellant failed to demonstrate a reasonable excuse for her default, we need not consider whether she offered a potentially meritorious opposition to the motion (see New Century Mtge. Corp. v. Chimmiri, 146 AD3d 893).CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Rivera, J.P.; Cohen, Miller and Christopher, JJ.Patrick Nurse, ap, v. Edna Rios, res, et al., def — (Index No. 508788/14)In an action pursuant to RPAPL article 15 to quiet title to real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Arthur M. Schack, J.), dated August 12, 2015, which granted that branch of the motion of the defendant Edna Rios which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her.ORDERED that the order is reversed, on the law, with costs, and that branch of the motion of the defendant Edna Rios which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her is denied.“To maintain a cause of action to quiet title [to real property], a plaintiff must allege actual or constructive possession of the property and the existence of a removable cloud on the property, which is an apparent title to the property, such as in a deed or other instrument, that is actually invalid or inoperative” (Zuniga v. BAC Home Loans Servicing, L.P., 147 AD3d 882, 883; see RPAPL 1515; RPAPL 1501[1]; O’Reilly v. Keene, 136 AD3d 482; Jahan v. U.S. Bank Natl. Assn., 127 AD3d 926; Benson v. Deutsche Bank Natl. Trust, Inc., 109 AD3d 495).On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the pleading is afforded a liberal construction and the court must give the plaintiff “the benefit of every possible favorable inference, accept the facts alleged in the complaint as true, and determine only whether the facts as alleged fit within any cognizable legal theory” (Caravello v. One Mgt. Group, LLC, 131 AD3d 1191, 1192 [internal quotation marks omitted]; see Leon v. Martinez, 84 NY2d 83, 87; High Tides, LLC v. DeMichele, 88 AD3d 954, 956). ”Whether a plaintiff can ultimately establish its allegations is not part of the calculus” (Ehrenkranz v. 58 MHR, LLC, 127 AD3d 918, 918 [internal quotation marks omitted]).Here, the complaint alleged, in relevant part, that the plaintiff acquired title to the subject property pursuant to a deed dated September 10, 2008, from nonparty Joon Asset Mgmt. Corp. (hereinafter Joon). The complaint also alleged that the plaintiff is in possession of the property and that there exists a removable cloud on the property in the form of a deed dated January 7, 2008, and recorded November 6, 2008, purporting to convey title to the property from Joon to the defendant Edna Rios. The complaint further alleged that the deed to Rios was invalid and part of a fraudulent scheme, and that Rios’s role in the scheme was that of a “straw buyer.” The complaint sought to adjudge the deed dated January 7, 2008, to be a fraudulent deed, the plaintiff to be the holder of an undivided fee interest in the premises pursuant to the deed dated September 10, 2008, and Rios to be barred from all claims to any estate or interest in the premises.Accepting these allegations as true, the complaint pleads a viable cause of action to quiet title (see Zuniga v. BAC Home Loans Servicing, L.P., 147 AD3d at 883). Accordingly, the Supreme Court should have denied that branch of Rios’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her.RIVERA, J.P., COHEN, MILLER and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Cohen, Miller and Christopher, JJ.Wells Fargo Bank, N.A., plf-res, v. Edna Rios, def-res, Patrick Nurse appellants defendant (and a third-party action). (Index No. 15440/13)In an action to foreclose a mortgage, the defendants Patrick Nurse and Nationstar Mortgage, LLC, appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Arthur, M. Schack, J.), dated August 12, 2015, as granted those branches of the plaintiff’s motion pursuant to CPLR 3211(b) which were to dismiss the first and seventh affirmative defenses asserted in their respective answers, and (2) from an order of the same court, also dated August 12, 2015, which granted the motion of the defendant Edna Rios pursuant to CPLR 3211(a)(7) to dismiss their respective cross claims for indemnification asserted against her.ORDERED that the first order dated August 12, 2015, is reversed insofar as appealed from, on the law, and those branches of the plaintiff’s motion pursuant to CPLR 3211(b) which were to dismiss the first and seventh affirmative defenses asserted in the appellants’ respective answers are denied; and it is further,ORDERED that the second order dated August 12, 2015, is reversed, on the law, and the motion of the defendant Edna Rios pursuant to CPLR 3211(a)(7) to dismiss the appellants’ respective cross claims for indemnification asserted against her is denied, and it is further,ORDERED that one bill of costs is awarded to the appellants.The plaintiff, Wells Fargo Bank, N.A. (hereinafter Wells Fargo), commenced this action to foreclose a mortgage executed by the defendant Edna Rios on January 10, 2008. The subject property had purportedly been conveyed to Rios by Joon Asset Mgmt. Corp. (hereinafter Joon), by deed dated January 7, 2008. Prior to the recording of the Wells Fargo mortgage, and the Rios deed on November 6, 2008, Patrick Mullings, as president of Joon, executed a deed dated September 10, 2008, conveying the property to the defendant Patrick Nurse, who then gave a mortgage on the property to Mortgage Electronic Registration Systems, Inc., as nominee for Golden First Mortgage. That mortgage was subsequently assigned to the defendant Nationstar Mortgage, LLC (hereinafter Nationstar).Nurse and Nationstar (hereinafter together the appellants) answered the complaint and commenced a third-party action against Joon, Mullings, and others. In their respective answers, the appellants asserted as a first affirmative defense that they are a bona fide purchaser and encumbrancer for value and as a seventh affirmative defense that Wells Fargo’s mortgage was void because Rios’s deed was part of a fraudulent scheme. The appellants cross-claimed for indemnification against Rios, alleging that she conspired with the third-party defendants to commit fraud.Wells Fargo subsequently moved pursuant to CPLR 3211(b) to dismiss certain affirmative defenses, and Rios moved to dismiss the cross claims against her. The appellants opposed the motions. In the orders appealed from, the Supreme Court granted Wells Fargo’s motion and Rios’s motion, respectively.Pursuant to CPLR 3211(b), “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.” When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses “are without merit as a matter of law because they either do not apply under the factual circumstances of [the] case, or fail to state a defense” (Bank of Am., N.A. v. 414 Midland Ave. Assoc., LLC, 78 AD3d 746, 748 [internal quotation marks omitted]; see Bank of N.Y. v. Penalver, 125 AD3d 796, 797). On a motion pursuant to CPLR 3211(b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211(a)(7), and the factual assertions of the defense will be accepted as true (see Bank of N.Y. v. Penalver, 125 AD3d at 797; Bank of Am., N.A. v. 414 Midland Ave. Assoc., LLC, 78 AD3d at 748-749). Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed (see Fireman’s Fund Ins. Co. v. Farrell, 57 AD3d 721, 723).Here, the Supreme Court should not have granted those branches of Wells Fargo’s motion which were to dismiss the appellants’ first and seventh affirmative defenses, as it cannot be said at this point that those defenses were without merit (see Bank of N.Y. v. Penalver, 125 AD3d at 797).Contrary to the appellants’ contention, Rios’s motion was not barred by the single motion rule (see CPLR 3211[e]; see also CPLR 2001; cf. Oakley v. County of Nassau, 127 AD3d 946). On the facts alleged, however, the Supreme Court should not have granted Rios’s motion to dismiss the appellants’ cross claims for indemnification (see Dickinson v. Igoni, 76 AD3d 943; CPLR 3211[a][7]).RIVERA, J.P., COHEN, MILLER and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Chambers, Roman, Maltese and Connolly, JJ.PEOPLE, etc., res, v. Kenny Krug, ap — (S.C.I. No. 2260/13)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dorothy Chin-Brandt, J., at plea; Suzanne J. Melendez, J., at sentencing), rendered October 22, 2013, convicting him of criminal possession of stolen property 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; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.MATTER of Lucia Quinones, etc., ap, v. City of New York res — (Index No. 702967/16)In a proceeding pursuant to General Municipal Law §50-e(5), the petitioner appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered June 6, 2016. The order denied her petition for leave to serve a late notice of claim.ORDERED that the order is affirmed, with costs.On March 16, 2015, the petitioner’s child (hereinafter the child), then a pre-kindergarten student at the Bethel Mission Loving Day Care Center in Queens, allegedly was injured when she fell and hit her head on a table in a classroom. Approximately one year after the accident, the petitioner commenced this proceeding to serve a late notice of claim on the City of New York and the Administration for Children’s Services (hereinafter together the City). The petition alleged that the City operated the day care center and that its negligent supervision and maintenance of the classroom caused the child’s accident and injuries. The Supreme Court denied the petition. The petitioner appeals.“‘Timely service of a notice of claim is a condition precedent to a lawsuit sounding in tort and commenced against a municipality’” (Matter of Ramos v. Board of Educ. of the City of N.Y., 148 AD3d 909, 910, quoting Matter of Zaid v. City of New York, 87 AD3d 661, 662; see General Municipal Law §50-e[1][a]; Matter of McClancy v. Plainedge Union Free Sch. Dist., 153 AD3d 1413). ”The purpose of the statutory notice of claim requirement is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available” (Vallejo-Bayas v. New York City Tr. Auth., 103 AD3d 881, 882; see Matter of Ramirez v. City of New York, 148 AD3d 908). ”‘The determination of an application for leave to serve and file a late notice of claim is left to the sound discretion of the trial court’” (Matter of Ramos v. Board of Educ. of the City of N.Y., 148 AD3d at 910, quoting Matter of Wooden v. City of New York, 136 AD3d 932, 932).“‘In determining whether to grant leave to serve a late notice of claim, a court must consider whether: (1) 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, (2) the claimant was an infant or mentally or physically incapacitated, (3) the claimant had a reasonable excuse for the failure to serve a timely notice of claim, and (4) the delay would substantially prejudice the public corporation in its defense’” (Matter of Ramos v. Board of Educ. of the City of N.Y., 148 AD3d at 910, quoting Matter of Tonissen v. Huntington U.F.S.D., 80 AD3d 704, 704-705; see General Municipal Law §50-e[5]; Matter of McClancy v. Plainedge Union Free Sch. Dist., 153 AD3d 1413).The presence or absence of any one factor is not necessarily determinative, but whether the public corporation had actual knowledge of the essential facts constituting the claim is “‘the most important, based on its placement in the statute and its relation to other relevant factors’” (Horn v. Bellmore Union Free Sch. Dist., 139 AD3d 1006, 1007, quoting Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147). In order to have actual knowledge of the essential facts constituting the claim, “the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves” (Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d at 148). ”[K]nowledge of the accident itself and the seriousness of the injury does not satisfy this enumerated factor where those facts do not also provide the public corporation with knowledge of the essential facts constituting the claim” (id. at 155; see Matter of Ramos v. Board of Educ. of the City of N.Y., 148 AD3d at 911).Here, the petitioner failed to establish that the City acquired actual knowledge of the essential facts constituting the claim within 90 days after the child’s accident or a reasonable time thereafter. Although a teacher prepared an accident report on the day of the incident, it merely indicated that the child ran into the classroom, “slipped,” and hit her head on a table. This report did not provide the City with timely, actual knowledge of the essential facts underlying the claims later asserted—that the City was negligent in allowing clutter and debris to accumulate on the floor which caused the child to “trip,” and that it was negligent in supervising the students by failing to have a sufficient number of teachers in the classroom (see Matter of McClancy v. Plainedge Union Free Sch. Dist., 153 AD3d at 1413; Matter of D.M. v. Center Moriches Union Free Sch. Dist., 151 AD3d 970, 972; Matter of Saponara v. Lakeland Cent. Sch. Dist., 138 AD3d 870, 871; Matter of Anderson v. Town of Oyster Bay, 101 AD3d 708, 709; Matter of Werner v. Nyack Union Free School Dist., 76 AD3d 1026).Furthermore, the petitioner failed to demonstrate a reasonable excuse for her failure to serve a timely notice of claim. The child’s infancy alone, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse (see Matter of D.M. v. Center Moriches Union Free Sch. Dist., 151 AD3d at 972; Matter of A.C. v. West Babylon Union Free Sch. Dist., 147 AD3d 1047, 1049; Matter of Tonissen v. Huntington U.F.S.D., 80 AD3d at 705). The petitioner’s mistaken belief that the day care center was privately owned is also unacceptable under the circumstances of this case. The petitioner’s failure to ascertain the City’s affiliation with the day care center was due to a lack of due diligence in investigating the matter (see Kelly v. City of New York, 153 AD3d 1388; Matter of Placido v. County of Orange, 112 AD3d 722; Matter of Moore v. New York City Hous. Auth., 89 AD3d 1088; Matter of Devivo v. Town of Carmel, 68 AD3d 991). The accident report and the school’s website information, which the petitioner printed out and attached to her petition, clearly showed the day care center’s affiliation with the City.Finally, the petitioner “presented no ‘evidence or plausible argument’ that its delay in serving a notice of claim did not substantially prejudice” the City in defending on the merits (Matter of Government Empls. Ins. Co. v. Suffolk County Police Dept., 152 AD3d 517, 518, quoting Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d at 466; see Matter of D.M. v. Center Moriches Union Free Sch. Dist., 151 AD3d at 972; Matter of A.C. v. West Babylon Union Free Sch. Dist., 147 AD3d at 1049). A balancing of the relevant factors (see General Municipal Law §50-e[5]) therefore demonstrates that the Supreme Court providently exercised its discretion in denying the petition for leave to serve a late notice of claim.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Mastro, J.P.; Dillon, Maltese and Lasalle, JJ.MATTER of Roberto C. E.-C. (Anonymous), ap — (Docket No. E-3781-17)Bruno J. Bembi, Hempstead, NY, for appellant.Jared A. Kasschau, County Attorney, Mineola, NY (Robert F. Van der Waag and Robert R. Miles of counsel), for respondent.In a juvenile delinquency proceeding, Roberto C. E.-C. appeals from an order of disposition of the Family Court, Nassau County (Ellen R. Greenberg, J.), dated July 5, 2017. The order of disposition, insofar as appealed from, adjudicated the appellant a juvenile delinquent. The appeal from the order of disposition brings up for review an order of fact-finding of the same court dated May 17, 2017, which, after a hearing, found that the appellant committed acts which, if committed by an adult, would have constituted the crimes of robbery in the first degree, robbery in the second degree, and assault in the third degree.ORDERED that the order of disposition is affirmed insofar as appealed from, without costs or disbursements.Viewing the evidence in the light most favorable to the presentment agency (see Matter of Chakelton M., 111 AD3d 732, 733; Matter of Danielle B., 94 AD3d 757, 758; Matter of Imani Mc., 78 AD3d 705, 706), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant, acting in concert with others, committed acts which, if committed by an adult, would have constituted the crime of robbery in the first degree (see Matter of Andre S., 51 AD3d 1030, 1033; Matter of Bruce K., 306 AD2d 479, 480). The appellant’s conduct, which consisted of hitting and kicking the victim, intentionally aided the principal actors, and served to overcome the victim’s resistance to the robbery (see Matter of Richard G., 95 AD3d 455, 455-456; Matter of Jonathan V., 43 AD3d 470, 471; Matter of Justice G., 22 AD3d 368, 369).Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see Matter of Brandon V., 133 AD3d 769, 769; Matter of Dashawn R., 120 AD3d 1250, 1251; Matter of Kaseem R., 113 AD3d 779, 780), we nevertheless accord great deference to the factfinder’s opportunity to view the witnesses, hear their testimony, and observe their demeanor (see Matter of Dajahn M., 110 AD3d 812, 813; Matter of Danielle B., 94 AD3d at 758; Matter of Jamel C., 92 AD3d 782, 782-783; Matter of Kalexis R., 85 AD3d 927, 928-929). The hearing court’s credibility determinations should not be disturbed unless clearly unsupported by the record (see Matter of Brandon V., 133 AD3d at 769; Matter of Darnell G., 125 AD3d 969, 969; Matter of Dashawn R., 120 AD3d at 1251). Upon reviewing the record, we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence.MASTRO, J.P., DILLON, MALTESE and LASALLE, JJ., concur.By Scheinkman, P.J.; Balkin, Sgroi, Nelson and Christopher, JJ.PEOPLE, etc., res, v. Erick Cortez, ap — (S.C.I. No. 2294/15)Paul Skip Laisure, New York, NY (Tammy E. Linn of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Roni C. Piplani, and Jimei L. Hon of counsel), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Dorothy Chin-Brandt, J., at plea; Stephanie Zaro, J., at sentence), imposed March 7, 2016, sentencing him to a definite term of imprisonment of one year upon his conviction of attempted grand larceny in the second degree, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is modified, as a matter of discretion in the interest of justice, by reducing the definite term of imprisonment from one year to 364 days.Under the circumstances of this case, the defendant’s waiver of the right to appeal was invalid (see People v. Laboy, 153 AD3d 1363). The plea court’s terse oral colloquy regarding the waiver of the right to appeal was insufficient, by itself, to ensure that the waiver was made knowingly, intelligently, and voluntarily (see People v. Bradshaw, 18 NY3d 257; People v. Brown, 122 AD3d 133). Although the Spanish-speaking defendant signed a written waiver, the document was in English and there is no indication that it was read or thoroughly explained to him (see People v. Pelaez, 100 AD3d 803). Accordingly, we reach the merits of the defendant’s excessive sentence claim.Considering all of the relevant circumstances of this case, including the potential immigration consequences to the defendant, we conclude that his sentence should be reduced by one day (see People v. Scott, 156 AD3d 913; People v. Aisewomhonio, 131 AD3d 1177; People v. Weston, 98 AD3d 1066; People v. Bakare, 280 AD2d 679).SCHEINKMAN, P.J., BALKIN, SGROI, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Cohen, Connolly and Brathwaite Nelson, JJ.MATTER of Philip Vella, res, v. Jodi Dillman, ap — (Docket No. O-4583-17)In a family offense proceeding, Jodi Dillman appeals from an order of protection of the Family Court, Suffolk County (Bernard Cheng, J.), dated July 19, 2017. The order, upon a finding, made after a hearing, that the appellant committed the family offense of harassment in the second degree directed her, inter alia, to stay away from the petitioner until and including July 19, 2018.ORDERED that the order is affirmed, without costs or disbursements.The petitioner filed a family offense petition in Family Court seeking an order of protection against the appellant, who is his ex-girlfriend. Following fact-finding and dispositional hearings, the Family Court determined that the appellant had committed the family offense of harassment in the second degree and issued an order of protection directing her, inter alia, to stay away from the petitioner until and including July 19, 2018.The allegations in a family offense proceeding must be “supported by a fair preponderance of the evidence” (Family Ct Act §832; see Matter of Porter v. Moore, 149 AD3d 1082, 1083; Matter of Acevedo v. Acevedo, 145 AD3d 773, 774; Matter of Silva v. Silva, 125 AD3d 869, 870). ”The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record” (Matter of Richardson v. Richardson, 80 AD3d 32, 43-44; see Matter of Shank v. Shank, 155 AD3d at 876; Matter of Fuel v. Chaca, 150 AD3d at 1232; Matter of Nusbaum v. Nusbaum, 59 AD3d 725, 725). Here, the Family Court was presented with conflicting testimony as to whether the appellant committed the family offense of harassment in the second degree. The court’s determination that the appellant had committed that family offense was based upon its assessment of the credibility of the parties and is supported by the record (see Matter of Streat v. Streat, 117 AD3d 837, 838; Matter of Winfield v. Gammons, 105 AD3d 753, 754; Matter of Luke v. Luke, 72 AD3d 689, 689).Contrary to the appellant’s contention, the Family Court did not improvidently exercise its discretion in denying her belated application for a continuance in order to secure the attendance of a certain witness. ”‘An application for a continuance or adjournment is addressed to the sound discretion of the [hearing] court, and the grant or denial thereof will be upheld on appellate review if the [hearing] court providently exercised its discretion’” (Matter of Denkewitz v. Sundara, 130 AD3d 723, 724, quoting Nieves v. Tomonska, 306 AD2d 332, 332; see Matter of Martinez v. Ramos, 122 AD3d 927, 928; Matter of Samida v. Samida, 116 AD3d 779, 780; Matter of Winfield v. Gammons, 105 AD3d at 754; Matter of Lannaman v. Minus, 96 AD3d 756, 757). Here, the appellant identified no reason why she could not have anticipated the need for the witness’s testimony.The appellant’s remaining contentions are without merit.MASTRO, J.P., COHEN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Balkin, Austin and Hinds-Radix, JJ.MATTER of Gabriel M. I. (Anonymous). Dutchess County Department of Community and Family Services, res; Steven M. I. (Anonymous), ap — (Proceeding No. 1)MATTER of Isabelle A. I. (Anonymous). Dutchess County Department of Community and Family Services, res; Steven M. I. (Anonymous), ap — (Proceeding No. 2) (Docket Nos. B-2760-14, B-2761-14)Joseph Petito, Poughkeepsie, NY, for appellant.James Fedorchak, County Attorney, Poughkeepsie, NY (Laura Gail Skojec of counsel), for respondent.Diane P. Foley, Wappingers Falls, NY, attorney for the children.In related neglect proceedings pursuant to Family Court Act article 10, the father appeals from an order of fact-finding and disposition of the Family Court, Dutchess County (Joseph A. Egitto, J.), dated November 10, 2016. The order of fact-finding and disposition, after fact-finding and dispositional hearings, found that the father failed to comply with the terms and conditions of a suspended judgment of the same court dated March 27, 2015, in effect, revoked the suspended judgment, and terminated his parental rights and freed the subject children for adoption.ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.In March 2015, the father admitted that he permanently neglected the subject children, and a suspended judgment was entered against him. In October 2015, the petitioner moved to revoke the suspended judgment, terminate the father’s parental rights, and free the children for adoption on the ground that the father had failed to comply with the terms and conditions of the suspended judgment. Following fact-finding and dispositional hearings, the Family Court found that the father had failed to comply with the terms and conditions of the suspended judgment, in effect, revoked the suspended judgment, and terminated the father’s parental rights and freed the children for adoption. The father appeals.The Family Court may revoke a suspended judgment after a violation hearing if it finds, upon a preponderance of the evidence, that the parent failed to comply with one or more of its conditions (see Matter of Selena L. [Susan B. L.], 140 AD3d 769, 770). Here, the court properly found, by a preponderance of the evidence, that the father had failed to comply with the conditions of the suspended judgment, including the conditions that he attend weekly visitation with the children, provide the children with appropriate food at those visits, regularly attend therapy, obtain a stable residence apart from the paternal grandmother, and not engage in any criminal behavior (see Matter of Carmen C. [Margarita N.], 95 AD3d 1006, 1008). Further, the father failed to gain insight into the problems that caused the children’s removal and were preventing their return to his care (see Matter of Selena L. [Susan B. L.], 140 AD3d at 770; Matter of Shamika K.L.N. [Melvin S. L.], 101 AD3d 729, 731; Matter of Joquan Jomaine-Anthony V., 39 AD3d 868, 869). Thus, the court properly, in effect, revoked the suspended judgment.Additionally, the evidence supported the Family Court’s determination that it was in the best interests of the children to terminate the father’s parental rights and free the children for adoption (see Matter of Ernesto Thomas A., 5 AD3d 380, 381).The father’s remaining contention is without merit.SCHEINKMAN, P.J., BALKIN, AUSTIN and HINDS-RADIX, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros, Connolly and Iannacci, JJ.PEOPLE, etc., res, v. Bruce Appiarius, ap — (Ind. No. 171/16)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald Hollie, J.), dated December 12, 2016, convicting him of assault in the third degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s contention concerning an order of protection issued at the time of sentencing would survive his waiver of the right to appeal, even if the waiver is valid (see People v. Gibson-Parish, 153 AD3d 1273; People v. Cedeno, 107 AD3d 734). However, the defendant failed to preserve for appellate review his challenge to the order of protection (see People v. Nieves, 2 NY3d 310; People v. Gibson-Parish, 153 AD3d 1273; People v. Cedeno, 107 AD3d 734), and we decline to reach the issue in the exercise of our interest of justice jurisdiction. ”[T]he better practice—and best use of judicial resources—is for a defendant seeking adjustment of [final orders of protection] to request relief from the issuing court in the first instance, resorting to the appellate courts only if necessary” (People v. Nieves, 2 NY3d at 317).SCHEINKMAN, P.J., LEVENTHAL, BARROS, CONNOLLY and IANNACCI, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Valley Forge Insurance Company appellants- res, v. ACE American Insurance Company, respondent-appellant def — (Index No. 34306/07)In an action, inter alia, for a judgment declaring, among other things, that the defendant ACE American Insurance Company is obligated to reimburse the plaintiff Valley Forge Insurance Company for costs expended in defending and settling an underlying personal injury action entitled Cunha v. City of New York, commenced in the Supreme Court, Kings County, under Index No. 49367/02, the plaintiffs appeal from so much of a judgment of the Supreme Court, Kings County (Lawrence Knipel, J.), entered December 19, 2016, as, upon, among other things, an order of the same court (Bernadette Bayne, J.), dated June 17, 2015, failed to award the plaintiffs prejudgment interest, and the defendant ACE American Insurance Company cross-appeals from so much of the same judgment as declared that it was obligated to reimburse the plaintiffs for costs expended in defending and settling the underlying personal injury action, and failed to declare that the plaintiff Valley Forge Insurance Company must reimburse it for payments it made to HAKS Engineers, P.C., in the underlying personal injury action.`ORDERED that the judgment is affirmed, without costs or disbursements.Severino Cunha was injured while working on a roadway excavation project in Brooklyn. The City of New York had hired Cunha’s employer, JLJ Enterprises, Inc., as the prime contractor, and HAKS Engineers, P.C. (hereinafter HAKS), to perform engineering inspection services in connection with the project. Cunha commenced an action to recover damages for personal injuries against the City, and the City commenced a third-party action for contractual and common-law indemnification against HAKS. The City and HAKS settled with Cunha, but proceeded to trial in the third-party action. After, inter alia, a trial and motion practice in the third-party action, eventually the Court of Appeals determined that the City was entitled to 100 percent indemnification from HAKS (see Cunha v. City of New York, 12 NY3d 504, 510).HAKS had a primary commercial general liability policy with the plaintiff Valley Forge Insurance Company (hereinafter Valley Forge), an excess commercial general liability policy with the plaintiff Transportation Insurance Company (hereinafter Transportation), and a professional liability for design professionals policy with the defendant ACE American Insurance Company (hereinafter ACE). Valley Forge and Transportation (hereinafter together the plaintiffs) commenced this action against ACE, HAKS, and the City, seeking a declaration that the plaintiffs were not obligated to defend or indemnify HAKS, and that ACE was obligated to reimburse Valley Forge for the costs that it expended in defending and settling the underlying action on behalf of HAKS. ACE answered the complaint, and asserted a counterclaim seeking reimbursement of the payments that it made to settle the underlying action on behalf of HAKS. HAKS then moved for summary judgment against ACE, seeking a declaration that ACE was obligated to defend and indemnify HAKS. In April 2009, the Supreme Court issued an order granting HAKS’s motion.ACE thereafter moved for summary judgment dismissing the complaint and granting its counterclaim for contribution from Valley Forge, and the plaintiffs cross-moved for summary judgment dismissing ACE’s counterclaim and for a declaration that ACE was obligated to reimburse Valley Forge for the costs that it expended in defending and settling the underlying action. By order dated June 17, 2015, the Supreme Court denied ACE’s motion, and granted the plaintiffs’ cross motion. On December 19, 2016, the court entered a judgment declaring that ACE was required to reimburse the plaintiffs for costs expended in defending and settling the underlying action. The plaintiffs appeal, and ACE cross-appeals.“In an insurance coverage case, the insurer bears the burden of establishing that the claimed policy exclusion defeats the insured’s claim to coverage by demonstrating that the exclusion relied upon is ‘stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case’” (Guishard v. General Sec. Ins. Co., 32 AD3d 528, 529, affd 9 NY3d 900, quoting Continental Cas. Co. v. Rapid-American Corp., 80 NY2d 640, 652; see Belt Painting Corp. v. TIG Ins. Co., 100 NY2d 377, 383; Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 444; Vantage of Jackson, LLC v. Everest Natl. Ins. Co., 85 AD3d 900, 901).Here, the plaintiffs established that there was no coverage under the Valley Forge policy since the “professional services” exclusion was applicable to the claims asserted in the underlying action. The claims asserted by Cunha in the underlying action arise out of HAKS’s “supervisory, inspection, architectural or engineering activities,” and, thus, fall within the professional services exclusion under the Valley Forge policy (see Exeter Bldg. Corp. v. Scottsdale Ins. Co., 79 AD3d 927; J. Lucarelli & Sons, Inc. v. Mountain Val. Indem. Co., 64 AD3d 856; cf. Beauty by Encore of Hicksville v. Commercial Union Ins. Co., 92 AD2d 855, 856). In opposition, ACE failed to raise a triable issue of fact as to the applicability of the exclusion (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Accordingly, the Supreme Court properly awarded judgment in favor of the plaintiffs, declaring, inter alia, that ACE was obligated to reimburse Valley Forge for costs expended in defending and settling the underlying action.Further, the Supreme Court providently exercised its discretion in declining to award prejudgment interest to the plaintiffs.ACE’s remaining contention need not be reached in light of our determination.CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Dillon, J.P.; Miller, Barros and Christopher, JJ.Bank of New York Mellon Trust Company, etc., res, v. Marilyn T. Loodus, ap — (Index No. 49412/09)In an action to foreclose a mortgage, the defendant appeals (1) from an order of the Supreme Court, Suffolk County (Arthur G. Pitts, J.), dated May 4, 2016, which granted that branch of the plaintiff’s motion which was for a judgment of foreclosure and sale, and denied the defendant’s cross motion to vacate a referee’s report and dismiss the complaint, and (2), as limited by its brief, from so much of an order and judgment (one paper) of the same court entered June 9, 2016, as granted that branch of the plaintiff’s motion which was to confirm the referee’s report, and is in favor of the plaintiff and against the defendant directing a foreclosure and sale of the subject property.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the order and judgment is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review on the appeal from the order and judgment (see CPLR 5501[a][1]).The defendant executed a note and mortgage in the amount of $488,700. The mortgage was secured by residential property located in Ronkonkama. After the defendant defaulted on her obligations under the note and mortgage, the plaintiff commenced this action to foreclose the mortgage. The defendant failed to timely answer the complaint. On March 25, 2011, the plaintiff filed a request for judicial intervention. Thereafter, the defendant moved to compel the plaintiff to accept a late answer. The Supreme Court denied the defendant’s motion, finding that she failed to establish a reasonable excuse for her default. Thereafter, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference. The defendant cross-moved to dismiss the complaint and, in effect, to vacate her default. In an order dated February 25, 2014, the court granted the plaintiff’s motion and denied the defendant’s cross motion.Subsequently, the plaintiff moved, inter alia, to confirm a referee’s report and for a judgment of foreclosure and sale. The defendant opposed the motion and cross-moved to dismiss the complaint and to vacate the referee’s report. In an order dated May 4, 2016, the Supreme Court granted that branch of the plaintiff’s motion which was for a judgment of foreclosure and sale, and denied the defendant’s cross motion. In an order and judgment of foreclosure and sale, the court, among other things, granted that branch of the plaintiff’s motion which was to confirm the referee’s report and directed the foreclosure and sale of the property.Contrary to the defendant’s contentions, the Supreme Court properly granted those branches of the plaintiff’s motion which were for a judgment of foreclosure and sale and to confirm the referee’s report. On its initial motion, inter alia, for leave to enter a default judgment and for an order of reference, the plaintiff established its entitlement to judgment as a matter of law (see CPLR 3215[f]; HSBC Bank USA, N.A. v. Simmons, 125 AD3d 930, 932). On its subsequent motion, which was, inter alia, for a judgment of foreclosure and sale and to confirm the referee’s report, the plaintiff established the amount due under the note by submitting that report (see HSBC Bank USA, N.A. v. Simmons, 125 AD3d at 932).The defendant’s contention that the affidavit submitted in support of the plaintiff’s motion, inter alia, for a judgment of foreclosure and sale was insufficient to prove the defendant’s default on the loan is without merit. As noted above, the plaintiff already established its entitlement to judgment as a matter of law on its motion for a default judgment and an order of reference (see id.).The Supreme Court properly denied that branch of the defendant’s cross motion which was to dismiss the complaint since, by virtue of having failed to vacate her default in the action, the defendant is deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them (see 425 E. 26th St. Owners Corp. v. Beaton, 128 AD3d 766, 769; Mortgage Elec. Registration Sys., Inc. v. Smith, 111 AD3d 804, 806). The court also properly denied that branch of the defendant’s cross motion which was to vacate the referee’s report (see RPAPL 1321).The defendant’s contentions regarding the plaintiff’s compliance with Administrative Order 548/10 of the Chief Administrative Judge of the Courts were not raised before the Supreme Court and are, therefore, improperly raised for the first time on appeal and not properly before this Court (see Flagstar Bank, FSB v. Titus, 120 AD3d 469, 470).DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Cohen, Miller and Christopher, JJ.Yolanda Holguin, ap, v. Kathryn Barton respondents defendant (and third-party actions). (Index No. 2162/10)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), dated November 30, 2015. The order, insofar as appealed from, denied the plaintiff’s motion for summary judgment on the issue of liability against the defendant Morgan Interiors, Inc., on the cause of action alleging violation of Labor Law §240(1), and granted those branches of the separate motions of the defendants Morgan Interiors, Inc., Kathryn Barton and Roger Barton, and Gotham Condominium and Cooper Square Realty, Inc., which were for summary judgment dismissing that cause of action insofar as asserted against them.ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendants appearing separately and filing separate briefs.The plaintiff was an employee of a cleaning services company which was hired to clean a condominium apartment following a renovation by the defendant Morgan Interiors, Inc. (hereinafter Morgan Interiors). On the day of the occurrence in question, the plaintiff arrived at the apartment along with a cleaning crew, where she was directed by her supervisor to clean certain floor-to-ceiling cabinets and was given a stepladder and a cloth for this purpose. The complaint alleges that the plaintiff was standing on the stepladder dusting the inside of the cabinets when she fell, sustaining injuries. She commenced this action alleging violation of, inter alia, Labor Law §240(1), and moved for summary judgment on the issue of liability against Morgan Interiors on that cause of action. All but one defendant moved for summary judgment dismissing the complaint insofar as asserted against them.Labor Law §240(1) imposes a nondelegable duty upon owners and contractors to provide safety devices for workers at an elevated work site (see Soto v. J. Crew Inc., 21 NY3d 562, 566; Robinson v. East Med. Ctr., LP, 6 NY3d 550, 554-555; Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287; Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513; Herrnsdorf v. Bernard Janowitz Constr. Corp., 67 AD3d 640, 642). This protection is afforded to workers employed in the “erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure” (Labor Law §240[1]; see Soto v. J. Crew Inc., 21 NY3d at 566; Dahar v. Holland Ladder & Mfg. Co., 18 NY3d 521, 524-525; Panek v. County of Albany, 99 NY2d 452, 457).The determination of whether an activity may be considered “cleaning” within the meaning of Labor Law §240(1), as opposed to routine maintenance, has been held to depend on four factors, considered as a whole. An activity will not be considered “cleaning” under the statute (1) if it is “routine,” that is, it is performed on a daily, weekly, or other relatively frequent recurring basis as part of ordinary maintenance; (2) if it does not require specialized equipment or expertise, nor unusual deployment of labor; (3) if it involves insignificant elevation risks comparable to those encountered during typical domestic or household cleaning, and (4) if it is unrelated to any ongoing construction, renovation, painting, alteration, or repair project (see Soto v. J. Crew Inc., 21 NY3d at 568-569; Morales v. Avalon Bay Communities, Inc., 140 AD3d 533, 534; Torres v. St. Francis Coll., 129 AD3d 1058, 1060; Pena v. Varet & Bogart, LLC, 119 AD3d 916, 917; Collymore v. 1895 WWA, LLC, 113 AD3d 720, 721).Here, the moving defendants demonstrated, prima facie, that the plaintiff was not engaged in “cleaning” within the meaning of Labor Law §240(1), as her work did not require specialized equipment, and was unrelated to any ongoing construction or renovation of the apartment. The plaintiff’s submissions in opposition were insufficient to create a triable issue of fact (see Soto v. J. Crew Inc., 21 NY3d at 569; Morales v. Avalon Bay Communities, Inc., 140 AD3d 533, 534; Torres v. St. Francis Coll., 129 AD3d 1058, 1060).Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the issue of liability on the Labor Law §240(1) cause of action and granted those branches of the moving defendants’ separate motions which were for summary judgment dismissing this cause of action insofar as asserted against them.RIVERA, J.P., COHEN, MILLER and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Austin, Miller, Hinds-Radix and Maltese, JJ.PEOPLE, etc., res, v. Devonte Guniss, ap — (Ind. No. 4500/15)Seymour W. James, Jr., New York, NY (Allen Fallek of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jill Oziemblewski of counsel; Marielle Burnett on the memorandum), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Martin P. Murphy, J.), imposed March 15, 2016, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.A defendant who has validly waived the right to appeal cannot invoke this Court’s interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez, 6 NY3d 248, 255). Here, however, this Court is not precluded from exercising its interest of justice jurisdiction because the defendant’s purported waiver of his right to appeal was invalid. The record does not demonstrate that the defendant understood the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. Kuperschmidt, 152 AD3d 797, 798; People v. Burnett-Hicks, 133 AD3d 773). Moreover, although the Supreme Court indicated that the defendant executed a written waiver of his right to appeal, the written waiver is not contained in the record on appeal. In any event, the court’s colloquy amounted to nothing more than a simple confirmation that the defendant signed the waiver and a conclusory statement that the defendant understood the waiver (see People v. Burnett-Hicks, 133 AD3d 773, 774; People v. Brown, 122 AD3d 133, 140). Under the circumstances here, we conclude that the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Johnson, 157 AD3d 964, 965; People v. Smith, 156 AD3d 944; People v. Brown, 122 AD3d 133).Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., AUSTIN, MILLER, HINDS-RADIX and MALTESE, JJ., concur.By Scheinkman, J.P.; Mastro, Roman, Lasalle and Christopher, JJ.PEOPLE, etc., res, v. Shawn Howard, ap — (Ind. No. 2191/15)Paul Skip Laisure, New York, NY (David P. Greenberg of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero of counsel; Aleena R. Peerzada on the memorandum), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (William Miller, J.), imposed July 13, 2016, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 NY3d 337, 341-342; People v. Ramos, 7 NY3d 737, 738; cf. People v. Brown, 122 AD3d 133, 145-146). The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 NY3d 248, 256).SCHEINKMAN, J.P., MASTRO, ROMAN, LASALLE and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Iannacci, JJ.MATTER of Yolanda Y. Andrade, res, v. Maclin A. Salvador, ap — (Proceeding No. 1)MATTER of Maclin A. Salvador, ap, v. Yolanda Y. Andrade, res — (Proceeding No. 2) (Docket Nos. V-4775-13, V-4776-13, V-5585-13, V-5586-13)William H. Sheeckutz, East Meadow, NY, for appellant.Rhonda R. Weir, Brooklyn, NY, for respondent.Elaine Miller, Great Neck, NY, attorney for the children.In related child custody proceedings, the father appeals from an order of the Family Court, Nassau County (Robert LoPresti, Ct. Atty. Ref.), dated October 31, 2016. The order, insofar as appealed from, after a hearing, granted the mother’s petition for custody of the parties’ children and denied the father’s cross petition for custody of the parties’ children.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The parties, who were never married, have two children together. After their birth, the children lived with the mother in her various foster homes with occasional visitation by the father until the mother voluntarily agreed to let the children live with the father in April 2012.In May 2013, the mother filed a custody petition in Nassau County, and in June 2013, the father filed a cross petition for custody. After a hearing, the Family Court, in an order dated October 31, 2016, among other things, granted the mother’s petition, denied the father’s cross petition, and awarded the mother custody of the children, with parenting time to the father. The father appeals.The court’s paramount concern in a custody dispute is “to determine, under the totality of the circumstances, what is in the best interests of the child” (Matter of Pena v. Cordero, 152 AD3d 697, 697-698; see Eschbach v. Eschbach, 56 NY2d 167, 171). ”Factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child’s relationship with the other parent” (Mohen v. Mohen, 53 AD3d 471, 473 [internal quotation marks omitted]; see Matter of Moran v. Cortez, 85 AD3d 795, 796). ”Custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties” (Matter of Roldan v. Nieves, 76 AD3d 634, 635). The court’s credibility determinations are entitled to great weight, and its award of custody should not be disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v. Eschbach, 56 NY2d at 173-174; Matter of Blakeney v. Blakeney, 99 AD3d 898; Matter of Gorsky v. Kesslev, 78 AD3d 834, 835).Here, the evidence shows that both parents love their children, but that the mother is able to provide a better home environment for the children, is better able to provide for the children’s emotional and intellectual development, and, in contrast to the father, will not impede the children’s relationship with the noncustodial parent. Accordingly, the Family Court’s determination that the children’s best interests would be served by awarding sole custody to the mother has a sound and substantial basis in the record and will not be disturbed on appeal (see Alvarez v. Alvarez, 114 AD3d 889, 891; Matter of Lawlor v. Eder, 106 AD3d 739; Matter of Ganzenmuller v. Rivera, 40 AD3d 756; Matter of Brian S. v. Stephanie P., 34 AD3d 685, 686).BALKIN, J.P., AUSTIN, SGROI and IANNACCI, JJ., concur.By Scheinkman, P.J.; Austin, Miller, Hinds-Radix and Maltese, JJ.PEOPLE, etc., res, v. Marshall Morgan, a/k/a Low, ap — (Ind. No. 23/16)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 March 23, 2017.ORDERED that the sentence is affirmed.Contrary to the defendant’s contention, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., AUSTIN, MILLER, HINDS-RADIX and MALTESE, JJ., concur.By Balkin, J.P.; Chambers, Roman, Maltese and Connolly, JJ.PEOPLE, etc., res, v. Charandip Singh, ap — (Ind. No. 1478/16)Paul Skip Laisure, New York, NY, for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Matthew Luongo of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gene Lopez, J.), rendered September 19, 2016, convicting him of operating a motor vehicle while under the influence of alcohol as a felony and operating a motor vehicle without an ignition interlock device, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur.By Mastro, J.P.; Balkin, Sgroi and Duffy, JJ.PEOPLE, etc., res, v. Stephan Schlackman, ap — (Ind. No. 1819/11)Stephan Schlackman, Cape Vincent, NY, appellant pro se.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and William H. Branigan of counsel), for respondent.Paul Skip Laisure, New York, NY (Yvonne Shivers of counsel), former appellate counsel.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated August 9, 2017 (People v. Schlackman, 153 AD3d 641), affirming a judgment of the Supreme Court, Queens County, rendered August 14, 2014.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).MASTRO, J.P., BALKIN, SGROI and DUFFY, JJ., concur.By Rivera, J.P.; Miller, Duffy and Lasalle, JJ.PEOPLE, etc., res, v. Frank Pastore, ap — (Ind. No. 7889/16)Paul Skip Laisure, New York, NY (Lynn W. L. Fahey of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero of counsel; Masha Simonova on the brief), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Suzanne M. Mondo, J.), rendered February 22, 2017, convicting him of criminal possession of a firearm and menacing in the second degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).RIVERA, J.P., MILLER, DUFFY and LASALLE, JJ., concur.By Rivera, J.P.; Miller, Duffy and Lasalle, JJ.PEOPLE, etc., res, v. Jose Rivera, ap — (Ind. No. 3947/14)Paul Skip Laisure, New York, NY, for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Camille O’Hara Gillespie of counsel; Robert Ho on the brief), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joseph E. Gubbay, J.), rendered February 19, 2016, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).RIVERA, J.P., MILLER, DUFFY and LASALLE, JJ., concur.By Leventhal, J.P.; Austin, Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Walter Figarella, ap — (S.C.I. No. 2593/16)Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T. Hecht, J.), rendered March 29, 2016, convicting him of petit larceny, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).LEVENTHAL, J.P., AUSTIN, COHEN, BARROS and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix, Nelson and Iannacci, JJ.PEOPLE, etc., res, v. Guillermo Martinez, ap — (Ind. No. 10511/13)Paul Skip Laisure, New York, NY, for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Elizabeth A. Foley, J., at plea; Martin P. Murphy, J., at sentence), rendered April 28, 2015, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).DILLON, J.P., SGROI, HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Roman, J.P.; Barros, Connolly and Christopher, JJ.MATTER of Jacqueline E. S. B. (Anonymous). Childrens Aid Society, petitioner-res; Daniel B. (Anonymous), a/k/a Daniel B. (Anonymous) II, ap, et al., res — (Proceeding No. 1)MATTER of Laura O. B. (Anonymous). Childrens Aid Society, petitioner-res; Daniel B. (Anonymous), a/k/a Daniel B. (Anonymous) II, ap, et al., res — (Proceeding No. 2) (Docket Nos. B-29678-11, B-29679-11)Cheryl Charles-Duval, Brooklyn, NY, for appellant.Rosin Steinhagen Mendel, New York, NY (Douglas H. Reiniger of counsel), for petitioner-respondent.Melissa E. Bonaldes, Brooklyn, NY, attorney for the children.In related neglect proceedings pursuant to Family Court Act article 10, the father appeals from two orders of fact-finding and disposition of the Family Court, Kings County (Ilana Gruebel, J.) (one as to each child), both dated May 6, 2016. The orders, after fact-finding and dispositional hearings, found that the father permanently neglected the subject children, terminated his parental rights, and transferred guardianship and custody of the children jointly to the Children’s Aid Society and the Commissioner of the Administration for Children’s Services of the City of New York for the purpose of adoption.ORDERED that the orders of fact-finding and disposition are affirmed, without costs or disbursements.The appellant is the father of two children, born in 2008 and 2010, respectively. In October 2011, the petitioner filed petitions pursuant to Social Services Law §384-b, inter alia, to terminate the father’s parental rights with respect to each of the children on the ground of permanent neglect. The Family Court found, after a fact-finding hearing, that the father had permanently neglected the children, and after a dispositional hearing the court terminated the father’s parental rights and freed the children for adoption. The father appeals.A parent has a due process right to be present during proceedings to terminate parental rights; however, that right “is not absolute and must be balanced with the child’s right to a prompt and permanent adjudication” (Matter of Eileen R. [Carmine S.], 79 AD3d 1482, 1483; see Matter of Chloe N. [Joshua N.], 143 AD3d 1114, 1116; Matter of Sean P.H. [Rosemarie H.], 122 AD3d 850, 851). Here, on the one date in the course of the hearing when the Family Court proceeded with the fact-finding hearing in the father’s absence, the record shows that the father voluntarily absented himself from the proceedings, and that video or audio conferencing was not available. In addition, an adjournment would have been detrimental to the interest of the children, the father’s attorney was present on that date, and the father proceeded to testify on his direct case on the following hearing date. Under these circumstances, the court did not deprive the father of his right to be present for part of the fact-finding hearing, nor did it improvidently exercise its discretion in declining his application for an adjournment (see Matter of Demetrious L.K. [James K.], 157 AD3d 796; Matter of Sean P.H. [Rosemarie H.], 122 AD3d at 851; Matter of Lillian D.L., 29 AD3d 583, 584).The petitioner established, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen the father’s relationship with the children (see Social Services Law §384-b[7][a]), and that despite such efforts, the father failed to plan for the children’s future. The father’s partial compliance with the services provided by the petitioner was insufficient to preclude a finding of permanent neglect, particularly as he failed to complete significant services, including recommended mental health therapy and drug testing. Under these circumstances, the petitioner established the father’s permanent neglect of the children by clear and convincing evidence (see Matter of Sarah J.A. [Ramadan G.O.-A.], 156 AD3d 691, 692-693; Matter of Shaquan D.M. [Shaquanna M.], 150 AD3d 1119; Matter of Tsulyn R.A. [Deborah A.], 135 AD3d 935).Moreover, the Family Court properly found, by a preponderance of the evidence, that termination of the father’s parental rights was in the children’s best interests (see Family Ct Act §631; Matter of Sarah J.A. [Ramadan G.O.-A.], 156 AD3d at 693; Matter of Stephon B.M., 149 AD3d 1080, 1081; Matter of Hector V.P. [Mariana V.], 146 AD3d 889, 890).ROMAN, J.P., BARROS, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Balkin, Connolly and Christopher, JJ.Lola Roberts Beauty Salon, Inc., ap, v. Leading Insurance Group Insurance Co., Ltd. res — (Index No. 2135/12)Joseph A. Deliso, Brooklyn, NY, for appellant.Chartwell Law Offices, LLP, New York, NY (Matthew Kraus of counsel), for respondents.In an action, inter alia, to recover damages for breach of an insurance contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (David Elliot, J.), entered August 6, 2015, as granted that branch of the defendants’ motion which was for summary judgment dismissing so much of the complaint as sought consequential damages.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff sustained water damage to the interior of its beauty salon due to a broken sprinkler pipe in a vacant space above its beauty salon. Pursuant to a business owners insurance policy in effect at the time of the occurrence, the plaintiff notified its insurance carrier, the defendant LIG Insurance Company, Ltd., of the loss. Thereafter, the plaintiff remained closed in anticipation of repairs. Shorty after the water leak, the Buildings Department issued a stop work order to the plaintiff’s landlord. The stop work order prevented the plaintiff from securing the necessary permits for remedial work. About 3 months after the water leak, the defendants made a partial advance payment of insurance proceeds to the plaintiff. At the time, the stop work order was still in place, and the plaintiff did not take any measures to lift it. The plaintiff did not use the advance payment to repair the salon, and the salon never reopened.The plaintiff commenced this action, alleging, among other things, that the defendants breached the business owners insurance policy and the implied covenant of good faith and fair dealing by failing to timely investigate, adjust, and settle its insurance claim, and that their failure resulted in the demise of its business. The plaintiff sought, among other things, consequential damages. Subsequently, the defendants moved, inter alia, for summary judgment dismissing the plaintiff’s claim for consequential damages. The Supreme Court, among other things, granted that branch of the defendants’ motion. The plaintiff appeals.Consequential damages are damages that do not directly flow from a breach of contract (see Biotronik A.G. v. Conor Medsystems Ireland, Ltd., 22 NY3d 799, 805; Rose Lee Mfg. v. Chemical Bank, 186 AD2d 548, 551). Proximate cause is an essential element of a breach of contract cause of action (see Jorgensen v. Century 21 Real Estate Corp., 217 AD2d 533, 534). “[E]very contract contains an implied covenant of good faith and fair dealing” (Refreshment Mgt. Servs. Corp. v. Complete Off. Supply Warehouse Corp., 89 AD3d 913, 915). In an insurance contract context, consequential damages resulting from a breach of the implied covenant of good faith and fair dealing may be asserted, “so long as the damages were within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting” (Panasia Estates, Inc. v. Hudson Ins. Co., 10 NY3d 200, 203 [internal quotation marks omitted]; see Pandarakalam v. Liberty Mut. Ins. Co., 137 AD3d 1234, 1235). ”Consequential damages, designed to compensate a party for reasonably foreseeable damages, must be proximately caused by the breach” (Bi-Economy Mkt., Inc. v. Harleysville Ins. Co. of N.Y., 10 NY3d 187, 193 [internal quotation marks omitted]). ”Generally, it is for the trier of fact to determine the issue of proximate cause. However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” (Lexington Vil. Condominium v. Scottsdale Ins. Co., 136 AD3d 645, 649 [internal quotation marks omitted]; see Faust v. Gerde, 150 AD3d 1204, 1204-1205).Here, the defendants established, prima facie, that their alleged injurious conduct in handling the plaintiff’s claim was not a proximate cause of the plaintiff’s loss of business. It was undisputed that the stop work order issued shortly after the water leak, for reasons unrelated to the defendants, prevented the plaintiff from securing the necessary work permits prior to ceasing operations permanently. Under these circumstances, even assuming that the manner in which the defendants handled the plaintiff’s insurance claim was in breach of their express and implied duties, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the request for consequential damages (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; cf. Bi-Economy Mkt., Inc. v. Harleysville Ins. Co. of N.Y., 10 NY3d at 193, 195-196). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). ”[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to raise a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557, 562; see Javaheri v. Old Cedar Dev. Corp., 84 AD3d 881, 887). Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing so much of the complaint as sought consequential damages.MASTRO, J.P., BALKIN, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Roman, Sgroi and Cohen, JJ.Nicholas Casciano, res, v. Town/Village of Harrison, appellant def — (Index No. 59966/14)In an action to recover damages for personal injuries, the defendant Town/Village of Harrison appeals from an order of the Supreme Court, Westchester County (Joan B. Lefkowitz, J.), dated September 6, 2016, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is affirmed, with costs.The plaintiff alleges that he was injured when he slipped and fell on ice on a roadway in the vicinity of his residence in the Town/Village of Harrison (hereinafter the Town). He commenced this action against the Town and another defendant, alleging, inter alia, that the Town affirmatively created, through its negligence in constructing and paving the road, a condition which allowed water to accumulate and freeze on the roadway, and that the condition caused his fall. The Town moved for summary judgment dismissing the complaint insofar as asserted against it, contending, among other things, that it did not receive prior written notice of the alleged defective condition. The Supreme Court denied the motion, and the Town appeals.In support of its motion, the Town was required to demonstrate that it did not receive prior written notice of the alleged defective condition, and that it did not create that condition through an affirmative act of negligence that permitted water to accumulate and freeze on the roadway (see generally Morreale v. Town of Smithtown, 153 AD3d 917, 918; DeSalvio v. Suffolk County Water Auth., 127 AD3d 804, 805). The Town failed to establish, prima facie, that it did not create the alleged defective condition through an affirmative act of negligence. Contrary to the Town’s contention, the evidence submitted in support of its motion failed to demonstrate, prima facie, that it did not negligently construct or pave the road in a manner that permitted water to accumulate and freeze on the roadway, or that it subsequently successfully repaired the alleged defective condition prior to the plaintiff’s accident (see generally Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v. City of New York, 49 NY2d 557, 562). Since the Town failed to establish its prima facie entitlement to judgment as a matter of law, the motion was properly denied without regard to the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853).MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.By Mastro, J.P.; Roman, Sgroi and Cohen, JJ.Nicholas Casciano, res, v. Town/Village of Harrison, def, New York Bituminous Products Corporation, ap — (Index No. 59966/14)Lori D. Fishman (Carol R. Finocchio, New York, NY, of counsel), for appellant.Zalman Schnurman & Miner, P.C., New York, NY (Marc H. Miner of counsel), for respondent.In an action to recover damages for personal injuries, the defendant New York Bituminous Products Corporation appeals from an order of the Supreme Court, Westchester County (Joan B. Lefkowitz, J.), dated September 6, 2016, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is affirmed, with costs.The plaintiff alleges that he was injured when he slipped and fell on ice on a roadway in the vicinity of his residence in Harrison, New York. He commenced this action against the defendant New York Bituminous Products Corporation (hereinafter NYBPC) and another defendant, alleging, inter alia, that NYBPC negligently created the condition which caused his fall by performing defective road work. NYBPC moved for summary judgment dismissing the complaint insofar as asserted against it, and the Supreme Court denied the motion. NYBPC appeals.Contrary to NYBPC’s contention, the evidence submitted in support of its motion failed to establish, prima facie, that the work it performed on the roadway did not cause or contribute to the condition that resulted in the plaintiff’s alleged injuries (see generally Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v. City of New York, 49 NY2d 557, 562). Since NYBPC failed to establish its prima facie entitlement to judgment as a matter of law, the motion was properly denied without regard to the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853).MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.By Leventhal, J.P.; Austin, Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Norman Pleitez-Raymundo, ap — (S.C.I. No. 2519/14)Edward M. Gould, Islip, NY, for appellant.Timothy D. Sini, District Attorney, Riverhead, NY (Grazia DiVincenzo of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Suffolk County (Barbara Kahn, J.), rendered January 20, 2015, convicting him of attempted rape in the third degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s contention that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review because he did not move to vacate his plea or otherwise raise this issue before the County Court (see CPL 470.05[2]; People v. Lopez, 71 NY2d 662, 665; People v. Jackson, 114 AD3d 807). In any event, the record demonstrates that the defendant knowingly, voluntarily, and intelligently entered his plea of guilty, as the court adequately advised the defendant, through an interpreter, of the constitutional rights that he was surrendering by pleading guilty and the direct consequences of his plea (see People v. Harris, 61 NY2d 9, 17; People v. Sirico, 135 AD3d 19, 22; People v. Bennett, 122 AD3d 871, 872; People v. Solis, 111 AD3d 654, 655).LEVENTHAL, J.P., AUSTIN, COHEN, BARROS and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix, Nelson and Iannacci, JJ.PEOPLE, etc., res, v. Carlos Cortez, ap — (Ind. No. 913-16)Appeal by the defendant from a judgment of the County Court, Suffolk County (John J. Toomey, J.), rendered February 7, 2017, convicting him of driving while intoxicated as a felony and aggravated unlicensed operation of a motor vehicle in the first 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 she moves for leave to withdraw as counsel for the appellant.ORDERED that the motion of Laurette D. Mulry for leave to withdraw as counsel is granted, and she is directed to turn over all papers in her possession to new counsel assigned herein; and it is further,ORDERED that Mark Diamond, P.O. Box 287356 – Yorkville Station, New York, NY, 10128, is assigned as counsel to prosecute the appeal; and it is further,ORDERED that the respondent is directed to furnish a copy of the certified transcript of the proceedings to the appellant’s new assigned counsel; and it is further,ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of this decision and order on motion, and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court dated April 17, 2017, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers (including a certified transcript of the proceedings) and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.In reviewing an attorney’s motion to be relieved pursuant to Anders v. California (386 US 738), this Court must first “‘satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client’s appeal’” (Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 255, quoting Penson v. Ohio, 488 US 75, 83). As this Court explained in Matter of Giovanni S. (Jasmin A.), “counsel must, at a minimum, draw the Court’s attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority” (id. at 258).Here, the brief submitted by the appellant’s counsel pursuant to Anders v. California (386 US 738) is deficient because it fails to analyze potential appellate issues with reference to the relevant legal authority or highlight facts in the record that might arguably support the appeal (see People v. Deprosperis, 126 AD3d 997, 998; People v. Sedita, 113 AD3d 638, 639-640; People v. McNair, 110 AD3d 742, 743; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 256). Further, the brief fails to contain an adequate statement of facts, as it does not review, in any detail, the County Court’s advisements to the appellant regarding the rights he was waiving, the inquiries made of the appellant to ensure that the plea was entered knowingly, voluntarily, and intelligently, or the appellant’s responses to any of those advisements and inquiries (see People v. Swensen, 116 AD3d 1073; People v. Sedita, 113 AD3d at 640). Additionally, the brief fails to provide any detail regarding the appellant’s factual admissions as to the crimes charged (see People v. Swensen, 116 AD3d at 1074; People v. Sedita, 113 AD3d at 640). Since the brief does not demonstrate that assigned counsel has fulfilled her obligations under Anders v. California (386 US 738), we must assign new counsel to represent the appellant (see People v. Deprosperis, 126 AD3d at 998; People v. Swensen, 116 AD3d at 1074; People v. Sedita, 113 AD3d at 640; People v. McNair, 110 AD3d at 743; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258).DILLON, J.P., SGROI, HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Balkin, J.P.; Leventhal, Hinds-Radix and Christopher, JJ.PEOPLE, etc., res, v. Theodore Lewis, ap — (Ind. No. 1310/86)Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated December 24, 1990 (People v. Lewis, 168 AD2d 637), affirming a judgment of the Supreme Court, Kings County, rendered April 1, 1987, and an order of the same court dated December 2, 1988.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).BALKIN, J.P., LEVENTHAL, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Howard Schneider, a suspended attorney. (Attorney Registration No. 1794221)Motion by Howard Schneider for reinstatement to the Bar as an attorney and counselor-at-law. Mr. Schneider was admitted to the Bar in the State of New York at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on April 21, 1982. By decision and order on motion of this Court dated June 10, 2015, the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts was authorized to institute and prosecute a disciplinary proceeding against Mr. Schneider for acts of professional misconduct set forth in a verified petition dated July 10, 2015, and the matter was referred to the Honorable Charles J. Thomas, as Special Referee, to hear and report. By opinion and order of this Court dated August 24, 2016, Mr. Schneider was suspended from the practice of law for a period of one year, commencing September 23, 2016, based on three charges of professional misconduct (see Matter of Schneider, 143 AD3d 58).Upon the papers filed in support of the motion and the papers filed in relation thereto, it isORDERED that the motion is granted; and it is further,ORDERED that, effective immediately, Howard Schneider is reinstated as an attorney and counselor-at-law, and the Clerk of the Court is directed to restore the name of Howard Schneider to the roll of attorneys and counselors-at-law.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Balkin, J.P.; Chambers, Duffy and Lasalle, JJ.Thomas K. Garbett, plaintiff-appellant-res, v. Wappingers Central School District, defendant third- party plaintiff-respondent-ap; Siteworks Services NY Corp., third-party defendant-appellant- res — (Index No. 50965/14)In an action to recover damages for personal injuries, and a third-party action, inter alia, for common-law indemnification, (1) the plaintiff and the third-party defendant separately appeal, and the defendant third-party plaintiff cross-appeals from an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated February 22, 2017, and (2) the third-party defendant appeals from an order of the same court dated May 17, 2017. The order dated February 22, 2017, insofar as appealed and cross-appealed from, denied the plaintiff’s motion for summary judgment on the issue of liability, denied the defendant third-party plaintiff’s cross motion for summary judgment dismissing the complaint, and granted that branch of the defendant third-party plaintiff’s separate motion which was for summary judgment on the issue of common-law indemnification. The order dated May 17, 2017, insofar as appealed from, denied the third-party defendant’s motion for leave to renew and reargue its opposition to that branch of the defendant third-party plaintiff’s motion which was for summary judgment on the issue of common-law indemnification.ORDERED that the order dated February 22, 2017, is affirmed insofar as appealed and cross-appealed from; and it is further,ORDERED that the appeal from so much of the order dated May 17, 2017, as denied that branch of the third-party defendant’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 the order dated May 17, 2017, is affirmed insofar as reviewed; and it is further,ORDERED that one bill of costs is awarded to the defendant third-party plaintiff, payable by the third-party defendant.The plaintiff commenced this personal injury action against Wappingers Central School District (hereinafter Wappingers) to recover damages after a cast-iron section of a boiler on its property fell and crushed his foot. Wappingers commenced a third-party action against the plaintiff’s employer, Siteworks Services NY Corp. (hereinafter Siteworks), which, at the time of the accident, was servicing the boiler pursuant to its contract with Wappingers. The Supreme Court subsequently struck Siteworks’ third-party answer as a sanction for its failure to comply with discovery demands and orders.The plaintiff moved for summary judgment on the issue of Wappingers’ liability under Labor Law §240(1), and Wappingers cross-moved for summary judgment dismissing the complaint. Wappingers also moved, inter alia, for summary judgment on the issue of common-law indemnification against Siteworks, arguing, among other things, that since Siteworks admitted that the injuries alleged by the plaintiff constituted a grave injury as defined in Workers’ Compensation Law §11, there are no triable issues of fact. By order dated February 22, 2017, the Supreme Court, among other things, denied the plaintiff’s motion and Wappingers’ cross motion on ground that triable issues of fact remained with respect to the applicability of Labor Law §240(1) and causation, and granted that branch of Wappingers’ motion which was for summary judgment on the issue of common-law indemnification. By order dated May 17, 2017, the court, inter alia, denied Siteworks’ subsequent motion for leave to renew and reargue its opposition to that branch of Wappingers’ motion which was for summary judgment on the issue of common-law indemnification.Labor Law §240(1) protects workers from elevation-related hazards while they are involved in certain enumerated work activities (see Panek v. County of Albany, 99 NY2d 452, 455-458). The statute applies when an employee is engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (Labor Law §240[1]; see Esposito v. New York City Indus. Dev. Agency, 1 NY3d 526, 528), as well as acts “‘ancillary’” to those activities (Goodwin v. Dix Hills Jewish Ctr., 144 AD3d 744, 746, quoting Prats v. Port Auth. of N.Y. & N.J., 100 NY2d 878, 882 [emphasis omitted]). ”Thus, where a worker is engaged in routine maintenance, the statute is inapplicable” (Fox v. H&M Hennes & Mauritz, L.P., 83 AD3d 889, 890; see Smith v. Shell Oil Co., 85 NY2d 1000).Labor Law §240(1) “imposes absolute liability on building owners and contractors whose failure to provide proper protection to workers employed on a construction site proximately causes injury to a worker” (Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [internal quotation marks omitted]). ”Whether a plaintiff is entitled to recovery under Labor Law §240(1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies” (id. at 7; see Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513). “[T]he dispositive inquiry does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide protection against a risk arising from a physically significant elevation differential” (Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603; see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 10). ”‘[F]alling object’ liability under Labor Law §240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured” (Escobar v. Safi, 150 AD3d 1081, 1083, quoting Sarata v. Metropolitan Transp. Auth., 134 AD3d 1089, 1091; see Quattrocchi v. F.J. Sciame Constr. Corp., 11 NY3d 757, 758-759). Liability also attaches “where the plaintiff demonstrates that, at the time the object fell, it ‘required securing for the purposes of the undertaking’” (Escobar v. Safi, 150 AD3d at 1083, quoting Fabrizi v. 1095 Ave. of the Ams., LLC, 22 NY3d 658, 663).Here, the plaintiff testified at his deposition that, at the time of the accident, Siteworks employees were disassembling the subject boiler section by section to fix a leak. However, the head custodian at the school where the plaintiff’s injury occurred testified at his deposition that the boiler was disassembled every summer for routine cleaning and refurbishing. The head custodian was also not aware of any problem with the boiler in need of repair during the summer of 2014, which is when the plaintiff was injured. As the record does not otherwise clarify the degree to which boiler sections are “components that require replacement in the normal course of wear and tear” (Esposito v. New York City Indus. Dev. Agency, 1 NY3d at 528), the Supreme Court properly determined that triable issues of fact exist with respect to whether the plaintiff’s activity was covered under Labor Law §240(1).The Supreme Court also properly concluded that triable issues of fact exist with respect to proximate cause. There is no dispute that, at the time of the accident, Siteworks employees were disassembling the boiler and moving each heavy section to the ground for the plaintiff to inspect. The plaintiff and Siteworks’ president each testified that Siteworks employees typically take off the top bolts from each section to be removed and connect a chain fall (hoisting) device before taking off the bottom bolts and fully separating a section from the adjacent section of the boiler. The plaintiff further testified that Siteworks employees did not follow that approach here, as only the top bolts appeared to be attached to that section of the boiler and, instead of connecting the chain fall device, Siteworks employees opted to wedge a pipe against the section that eventually fell. Before the accident, the plaintiff observed deformities in the rails underneath the section that fell and injured the plaintiff’s foot. Nevertheless, the plaintiff also testified that boiler sections can remain upright without assistance after being detached from each other, and that he, an experienced boilermaker, was satisfied with the apparent stability of the section before it fell. Wappingers also submitted evidence supporting the conclusion that boiler sections do not require securing when they are detached from each other. Thus, triable issues of fact exist as to whether a chain fall device was required for the undertaking.The Supreme Court properly determined that Wappingers failed to raise a triable issue of fact as to whether the plaintiff was a recalcitrant worker, since it offered no evidence indicating that he was provided with certain safety devices, that such devices were readily available for his use, and that the plaintiff was specifically instructed to use such devices but chose for no good reason to disregard those instructions (see Silvas v. Bridgeview Invs., LLC, 79 AD3d 727, 731; Ortiz v. 164 Atlantic Ave., LLC, 77 AD3d 807, 809; Zong Mou Zou v. Hai Ming Const. Corp., 74 AD3d 800, 801).With respect to the third-party action, “[a] defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages’” (Shah v. Oral Cancer Prevention Intl., Inc., 138 AD3d 722, 724, quoting Napolitano v. Branks, 128 AD2d 686, 687 [internal quotation marks omitted]; see Rokina Opt. Co. v. Camera King, 63 NY2d 728, 730-731). Among the traversable allegations in the third-party complaint that required Siteworks’ denial was that the plaintiff sustained a grave injury (cf. Rokina Opt. Co. v. Camera King, 63 NY2d at 730-731; Abbas v. Cole, 44 AD3d 31, 32-38), which allegation was necessary for the maintenance of the third-party action in these circumstances (see Workers’ Compensation Law §11; Poalacin v. Mall Props., Inc., 155 AD3d 900, 910). Here, since Siteworks’ third-party answer has been stricken as a result of a default, it has admitted all traversable allegations in the complaint, including the basic allegations of liability and that the plaintiff sustained a grave injury. Accordingly, the Supreme Court properly granted that branch of Wappingers’ motion which was for summary judgment on the issue of common-law indemnification (see Francesco v. Empress Ambulance Serv., Inc., 100 AD3d 589). Moreover, the court properly denied that branch of Siteworks’ subsequent motion which was for leave to renew its opposition to that branch of Wappingers’ motion which was for summary judgment on the issue of common-law indemnification, as Siteworks failed to offer new facts that would change the prior determination (see CPLR 2221[e][2]). The sole issue remaining in the third-party action is the extent of Wappingers’ damages, if any (see Jihun Kim v. S&M Caterers, Inc., 136 AD3d 755, 756; Gonzalez v. Wu, 131 AD3d 1205, 1205; Kouho v. Trump Vil. Section 4, Inc., 93 AD3d 761, 763).The parties’ remaining contentions are improperly raised for the first time on appeal or without merit.BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.By Scheinkman, P.J.; Cohen, Duffy and Connolly, JJ.MATTER of Merlin Entertainments Group U.S. Holdings, Inc. res, v. 409 Signatories to the challenged Referendum Petition, ap — (Proceeding No. 1)MATTER of Town of Goshen, etc., res, v. 409 Signatories to the challenged Referendum Petition, ap — (Proceeding No. 2) (Index Nos. 8421/17, 8425/17)Michael H. Sussman, Goshen, NY (Jonathan R. Goldman of counsel), for appellants.Drake Loeb PLLC, New Windsor, NY (Stephen J. Gaba of counsel), for respondents in Proceeding No. 1, Merlin Entertainments Group U.S. Holdings, Inc., and Jennifer Karon.Burke, Miele, Golden & Naughton, LLP, Goshen, NY (Richard B. Golden and Kelly M. Naughton of counsel), for respondent in Proceeding No. 2.In a proceeding pursuant to Town Law §91, the 409 Signatories to the challenged Referendum Petition appeal from an order of the Supreme Court, Dutchess County (James V. Brands, J.), dated November 9, 2017. The order granted the petition of Merlin Entertainments Group U.S. Holdings, Inc., and Jennifer Karon, and the separate petition of the Town of Goshen, to invalidate a petition requesting a permissive referendum and, in effect, invalidated the referendum petition.ORDERED that the order is reversed, on the law, without costs or disbursements, the petitions to invalidate are denied, and the proceedings are dismissed.On September 14, 2017, the Town Board of the Town of Goshen adopted a resolution agreeing to convey six parcels of Town-owned land to Merlin Entertainments Group U.S. Holdings, Inc. (hereinafter Merlin), to construct a commercial recreation facility to be known as “LEGOLAND New York.” On September 18, 2017, the Goshen Town Clerk published a notice providing that, pursuant to Town Law §64(2), the resolution authorizing the conveyance would not take effect for 30 days and was subject to a permissive referendum. On October 13, 2017, a petition containing 409 signatures on a total of 51 sheets was filed with the Goshen Town Clerk, requesting a referendum on the resolution. Each petition sheet included an identical statement at the top providing: “I, the undersigned, do state that I am a duly qualified voter… ; that on September 14, 2017, the Town Board of the Town of Goshen approved and adopted a ‘Resolution Authorizing The Sale of Certain Lands Owned By The Town of Goshen To Merlin Entertainments,’ including [certain identified parcels]; and I do hereby protest against the adoption by act or resolution of the ‘Resolution Authorizing The Sale of Certain Lands Owned By The Town of Goshen To Merlin Entertainments,’ and the said authorization and request that it be submitted to the qualified electors of the town affected… for their approval or disapproval pursuant to Article Seven of the New York State Town Law.”On October 18, 2017, Merlin, and Jennifer Karon, a resident of the Town, filed written objections to the referendum petition and, thereafter, commenced a proceeding pursuant to Town Law §91 to invalidate the referendum petition on the ground that it failed to set forth “the significant facts regarding the transaction approved by the resolution in question” and “an articulation of the objections upon which the petition was founded.” The Town also filed an objection to the referendum petition and, on October 18, 2017, filed a separate petition to invalidate the referendum petition, making similar arguments. The Supreme Court granted the petitions to invalidate and, in effect, invalidated the referendum petition. The 409 Signatories to the challenged Referendum Petition appeal. By decision and order on a motion dated December 6, 2017, this Court stayed the sale of the subject real property pending the hearing and determination of this appeal. For the reasons that follow, we reverse.Town Law §91 provides that an act or resolution of a town board subject to a permissive referendum shall not take effect until thirty days after its adoption. ”[I]f within thirty days after its adoption there be filed with the town clerk a petition signed” by a statutorily prescribed number of qualified electors “protesting against such act or resolution and requesting that it be submitted to the qualified electors of the town or district affected, for their approval or disapproval,” the act or resolution shall be subject to a permissive referendum (Town Law §91 [emphasis added]). Here, the referendum petition satisfied the requirements of Town Law §91 by identifying the resolution, stating that the undersigned electors were signing in protest to it, and requesting that the resolution be submitted to a referendum of qualified electors (see Matter of Podlas [Wodarczak], 167 AD2d 971).In arguing that a referendum petition sheet must contain a more detailed description of the facts regarding the transaction approved by the resolution and an articulation of the signatories’ objections to the resolution, Merlin, Karon, and the Town misinterpret this Court’s decision in Matter of McComb v. Town of Brookhaven (18 AD2d 662). In Matter of McComb, a large number of signature sheets appended to the petition were headed only by a statement that the undersigned were qualified voters of the Town of Brookhaven, without any reference to the resolution purportedly objected to by those signatories or requesting a referendum (see id.). Analogizing to the requirements for a petition under the Election Law, this Court held that the word “petition” in Town Law §91 means “a statement of purpose, followed by the authenticated signatures of those seeking to advance that purpose” (Matter of McComb, 18 AD2d at 663 [emphasis added]). Since the purpose for which the signatories placed their signatures on the petition sheets could not be determined from the petition sheets themselves, this Court held that the subject petition sheets were invalid.Here, in contrast, the petition sheets set forth the purpose for which each elector signed, namely, to protest the resolution authorizing the sale of Town-owned property to Merlin and to request a referendum on its adoption. Indeed, by the inclusion of language simply tracking the requirements of Town Law §91, the petition sheets satisfied the “statement of purpose” requirement set forth in Matter of McComb (18 AD2d at 663). To require more detail would be to read a new requirement into Town Law §91 that the legislature did not include. To the extent that Matter of Mathewson v. Town of Kent (41 Misc 3d 572, 574 [Sup Ct, Putnam County]) required an “affirmative articulation of the objections upon which the petition is founded,” it should not be followed.Finally, contrary to the contention of Merlin, Karon, and the Town, the matter has not been rendered academic by the passage of time and, therefore, “the referendum should proceed” (Matter of Podlas [Wodarczak], 167 AD2d at 973).SCHEINKMAN, P.J., COHEN, DUFFY and CONNOLLY, JJ., concur.
