Hand Down List decided on: April 25, 2018

By Balkin, J.P.; Austin, Roman and Lasalle, JJ.Christine Reilly res, v. Sylvia Achitoff, ap — (Index No. 40612/08)In an action, inter alia, pursuant to RPAPL article 15 to determine claims to certain real property, and for injunctive relief, the defendant appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Suffolk County (Ralph T. Gazzillo, J.), entered March 3, 2016, as, upon remittitur from this Court by decision and order dated January 27, 2016 (see Reilly v. Achitoff, 135 AD3d 926), for the entry of a judgment declaring that the plaintiffs have an easement over the eastern portion of the defendant’s driveway, failed to declare a complete chain of title and a metes and bounds description of the easement.ORDERED that the judgment is affirmed insofar as appealed from, with costs.In an order entered October 23, 2013, the Supreme Court, Suffolk County, denied those branches of the defendant’s motion which were for summary judgment, in effect, declaring that the plaintiffs do not have easements over the eastern and western portions of the defendant’s driveway and dismissing the third cause of action, and granted that branch of the plaintiffs’ cross motion which was for summary judgment declaring that the plaintiffs have an easement over the eastern portion of the defendant’s driveway. The court also severed the plaintiffs’ second and third causes of action and the defendant’s fourth counterclaim. On appeal to this Court, by decision and order dated January 27, 2016 (see Reilly v. Achitoff, 135 AD3d 926), the Supreme Court’s order was affirmed insofar as appealed from, and the matter was remitted to the Supreme Court “for the entry of a judgment declaring that the plaintiffs have an easement over the eastern portion of the defendant’s driveway” (id. at 928). Thereafter, the plaintiffs submitted a proposed judgment to the Supreme Court, and the defendant submitted a counter-proposed judgment. On March 3, 2016, the court entered the plaintiff’s proposed judgment. The defendant appeals from so much of the judgment as failed to declare a complete chain of title and a metes and bounds description of the easement.“‘A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court’” (Berry v. Williams, 106 AD3d 935, 937, quoting Matter of Trager v. Kampe, 16 AD3d 426, 427; see Glassman v. ProHealth Ambulatory Surgery Ctr., Inc., 96 AD3d 799, 800; Wiener v. Wiener, 10 AD3d 362, 36). Accordingly, an order or judgment entered on remittitur “‘must conform strictly to the remittitur’” (Glassman v. ProHealth Ambulatory Surgery Ctr., Inc., 96 AD3d at 800, quoting Matter of Minister, Elders & Deacons of Refm. Protestant Dutch Church of City of N.Y. v. Municipal Ct. of City of N.Y., Borough of Manhattan, 185 Misc 1003, 1007 [Sup Ct, NY County]; see Berry v. Williams, 106 AD3d at 937). ”If the remittitur is erroneous in any respect, or if there is any uncertainty as to the effect of the language employed, the appropriate remedy is an application to amend it” (Wiener v. Wiener, 10 AD3d at 363; see CPLR 5524; Matter of Minister, Elders & Deacons of Refm. Protestant Dutch Church of City of N.Y. v. Municipal Ct. of City of N.Y., Borough of Manhattan, 185 Misc at 1006).Contrary to the defendant’s contention, the Supreme Court correctly adhered to the terms of this Court’s remittitur in this matter (see Glassman v. ProHealth Ambulatory Surgery Ctr., Inc., 96 AD3d at 800-801).BALKIN, J.P., AUSTIN, ROMAN and LASALLE, JJ., concur.By Dillon, J.P.; Chambers, Cohen and Iannacci, JJ.Foo-Lu Company plaintiffs/counterclaim def-res, v. Miguel Rojas, defendant/ counterclaim plaintiff/third-party plaintiff-ap; Rose Chao, additional counterclaim defendant- res; Dean Fong, etc., additional counterclaim defendant/third-party def-res — (Index No. 3741/11)In an action to foreclose a mortgage, the defendant/counterclaim plaintiff/third-party plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Kings County (Graham, J.), dated April 7, 2015, as (a) denied that branch of his motion which was to vacate the note of issue and certificate of readiness, (b) upon denying the motion of the plaintiffs/counterclaim defendants and the additional counterclaim defendant Rose Chao for summary judgment on the complaint and dismissing the counterclaims insofar as asserted against Rose Chao, respectively, and for an order of reference, in effect, granted the moving parties leave to renew, (c) granted the plaintiffs/counterclaim defendants’ separate motion to strike his jury demand, and (d) denied those branches of his separate motion which were to strike the plaintiffs/counterclaim defendants’ pleadings or, alternatively, to compel further discovery and for leave to amend his answer and the third-party complaint to add an affirmative defense and cause of action alleging champerty, respectively, and (2) from an order of the same court dated November 23, 2015, which (a), upon renewal, granted the motion of the plaintiffs/counterclaim defendants and the additional counterclaim defendant Rose Chao for summary judgment on the complaint and dismissing the counterclaims insofar as asserted against Rose Chao, respectively, and for an order of reference, (b) granted the motion of the additional counterclaim defendant/third-party defendant for summary judgment dismissing the counterclaims and third-party complaint insofar as asserted against him, and (c) denied his cross motion for leave to reargue and pursuant to CPLR 5015 to vacate portions of the order dated April 7, 2015.ORDERED that the order dated April 7, 2015, is modified, on the facts and in the exercise of discretion, by deleting the provision thereof which, upon denying the motion of the plaintiffs/counterclaim defendants and the additional counterclaim defendant Rose Chao for summary judgment on the complaint and dismissing the counterclaims insofar as asserted against Rose Chao, respectively, and for an order of reference, in effect, granted the moving parties leave to renew; as so modified, the order dated April 7, 2015, is affirmed insofar as appealed from, and the provision of the order dated November 23, 2015, which, upon renewal, granted the motion of the plaintiffs/counterclaim defendants and the additional counterclaim defendant Rose Chao for summary judgment on the complaint and dismissing the counterclaims insofar as asserted against Rose Chao, respectively, and for an order of reference, is vacated; and it is further,ORDERED that the appeal from so much of the order dated November 23, 2015, as denied that branch of the cross motion of the defendant/counterclaim plaintiff/third-party plaintiff which was for leave to reargue and as, upon renewal, granted the motion of the plaintiffs/counterclaim defendants and the additional counterclaim defendant Rose Chao for summary judgment on the complaint and dismissing the counterclaims insofar as asserted against Rose Chao, respectively, and for an order of reference, is dismissed; and it is further,ORDERED that the order dated November 23, 2015, is modified, on the law, by deleting the provision thereof granting the motion of the additional counterclaim defendant/third-party defendant for summary judgment dismissing the counterclaims and third-party complaint insofar as asserted against him, and substituting therefor a provision denying the motion; as so modified, the order dated November 23, 2015, is affirmed insofar as reviewed; and it is further,ORDERED that one bill of costs is awarded to the appellant payable by the respondents appearing separately and filing separate briefs.Miguel Rojas entered into a consolidation, extension, and modification agreement with the plaintiffs consolidating an existing mortgage with a new mortgage to form a single lien in the amount of $850,000. After Rojas allegedly defaulted on the loan by failing to make the payment due, the plaintiffs commenced this foreclosure action. Rojas answered the complaint, asserting, inter alia, three counterclaims, naming Rose Chao and Dean Fong as additional defendants for purposes of the counterclaims. Rojas also commenced a third-party action. Following the joinder of issue and discovery, the plaintiffs filed a note of issue. Rojas moved, inter alia, to vacate the note of issue and separately moved for, among other things, leave to amend his answer and the third-party complaint. The plaintiffs moved to strike Rojas’ jury demand and separately moved, inter alia, for summary judgment on the complaint and for an order of reference. Chao, a principal of the plaintiff Foo-Lu Company, moved jointly with the plaintiffs for summary judgment dismissing the counterclaims insofar as asserted against her and for an order of reference. By order dated April 7, 2015, the Supreme Court, inter alia, denied the motion for summary judgment and an order of reference, but, in effect, granted the moving parties leave to renew.Thereafter, the plaintiffs and Chao again moved for summary judgment, this time submitting the affidavit of Chao, who attested, inter alia, to the plaintiffs’ ownership of the note and Rojas’ default. Fong then moved for summary judgment dismissing the counterclaims and third-party complaint insofar as asserted against him. Finally, Rojas cross-moved for leave to reargue and vacate portions of the order dated April 7, 2015. By order dated November 23, 2015, the Supreme Court awarded summary judgment to the plaintiffs, Chao, and Fong, and denied Rojas’ cross motion in its entirety. Rojas appeals.Preliminarily, the appeal from so much of the order dated November 23, 2015, as denied that branch of Rojas’ cross motion which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument (see Parrilla v. Saphire, 149 AD3d 859).The Supreme Court, upon denying the plaintiffs’ and Chao’s initial motion for summary judgment, improvidently exercised its discretion by, in effect, granting the moving parties leave to renew. The defect in the initial motion was not merely technical but substantive, inasmuch as the moving parties failed, without explanation, to submit evidence, in admissible form, establishing, inter alia, their ownership of the subject mortgage note or the existence of Rojas’ default. Such evidence could, and should, have been submitted on the original summary judgment motion (see Vinar v. Litman, 110 AD3d 867), and sufficient cause was not shown to warrant entertaining a second motion (cf. Varsity Tr. v. Board of Educ. of City of N.Y., 300 AD2d 38, 39). Therefore, the order dated April 7, 2015, must be modified accordingly, and the provision of the order dated November 23, 2015, upon renewal, granting the second summary judgment motion must be vacated. In light of our determination with respect to the order dated April 7, 2015, the appeal from that portion of the order dated November 23, 2015, must be dismissed.The Supreme Court also erred in awarding summary judgment to Fong. It is undisputed that Fong’s motion was untimely, having been made 309 days after the filing of the note of issue, or 189 days after the expiration of the 120-day statutory deadline (see CPLR 3212[a]; Nationstar Mtge., LLC v. Weisblum, 143 AD3d 866; Giambona v. Hines, 104 AD3d 811). Even assuming that the court granted an oral application by Fong for leave to file the late motion, as Fong’s counsel represented in his papers, such determination would have been an improvident exercise of discretion under the circumstances presented, since leave can be granted only upon a showing of good cause “for the delay in making the motion” (Brill v. City of New York, 2 NY3d 648, 652), and no such showing appears in the record (see Nationstar Mtge., LLC v. Weisblum, 143 AD3d at 869; cf. Matter of Gilmore, 131 AD3d 1058). Fong’s failure to establish good cause for his delay warranted denial of the motion, “without consideration of the merits thereof” (Jones v. City of New York, 130 AD3d 686, 687; see Nationstar Mtge., LLC v. Weisblum, 143 AD3d at 869; Carrasco v. Weissman, 120 AD3d 534, 536; Giambona v. Hines, 104 AD3d at 812).Rojas’ remaining contentions are without merit.DILLON, J.P., CHAMBERS, COHEN and IANNACCI, JJ., concur.By Leventhal, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.MATTER of George R. Clapp, pet, v. Barbara J. Fiala, etc., res — (Index No. 31662/16)Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Administrative Appeals Board dated March 29, 2016, affirming a determination of an administrative law judge dated March 10, 2015, which, after a hearing, found that the petitioner violated Vehicle and Traffic Law §§1146(a) and 1211(a), and suspended his driver license for one year. By order of the Supreme Court, Rockland County (Sherri L. Eisenpress, J.), dated June 24, 2016, the proceeding was transferred to this Court and enforcement of the suspension of the petitioner’s driver license was stayed pending determination of the proceeding.ADJUDGED that the petition is granted, on the law, without costs or disbursements, to the extent that so much of the determination dated March 29, 2016, as affirmed the penalty imposed is vacated, the petition is otherwise denied, the determination dated March 29, 2016, is otherwise confirmed, the proceeding is otherwise dismissed on the merits, and the matter is remitted to the Commissioner of Motor Vehicles for the imposition of a new penalty which shall not exceed a suspension of the petitioner’s driver license for a period of 60 days.The finding that the petitioner violated Vehicle and Traffic Law §§1146(a) and 1211(a) was supported by substantial evidence (see Matter of Wagner v. Fiala, 113 AD3d 694, 695; Matter of Montagnino v. Fiala, 106 AD3d 1090, 1091).However, we must remit the matter for the Commissioner of Motor Vehicles to impose a new penalty. ”An administrative penalty must be upheld unless it ‘is so disproportionate to the offense… as to be shocking to one’s sense of fairness,’ thus constituting an abuse of discretion as a matter of law” (Matter of Kreisler v. New York City Tr. Auth., 2 NY3d 775, 776, quoting Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 237; see Matter of Bolt v. New York City Dept. of Educ., 30 NY3d 1065). This Court has no discretionary authority or interest of justice jurisdiction to review the penalty imposed in a CPLR article 78 proceeding (see Matter of Ellis v. Mahon, 11 NY3d 754, 755). Here, under the unique facts and circumstances of this particular case, the penalty imposed of a one-year suspension of the petitioner’s driver license was so disproportionate to the offense as to be shocking to one’s sense of fairness, thus constituting an abuse of discretion as a matter of law (see Matter of Truskolaski v. Passidomo, 123 AD2d 705; Matter of Davidson v. Melton, 55 AD2d 799; cf. Matter of Cervoni v. Commissioner of N.Y. State Dept. of Motor Vehs., 96 AD3d 742; Matter of Wright v. Commissioner of N.Y. State Dept. of Motor Vehs., 189 AD2d 767; Matter of Fazzone v. Adduci, 155 AD2d 540). Accordingly, we remit the matter to the Commissioner of Motor Vehicles for the imposition of a new penalty not to exceed a suspension of the petitioner’s driver license for a period of 60 days, as that constitutes the maximum penalty the record will sustain (see Rob Tess Rest. Corp. v. New York State Liq. Auth., 49 NY2d 874, 875-876; Matter of Mupic Liqs. v. New York State Liq. Auth., 212 AD2d 793, 794).The petitioner’s remaining contentions are unpreserved for review.LEVENTHAL, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Cohen, Maltese and Iannacci, JJ.Celeste Siemsen, etc., ap, v. Lisa Mevorach, etc., res — (Index No. 4300/16)In an action to recover damages for legal malpractice and breach of fiduciary duty, the plaintiff appeals from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), dated August 29, 2016, which granted the defendant’s motion pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint.ORDERED that the order is affirmed, with costs.In 2012, the Supreme Court issued a commission to guardian, appointing the defendant as the guardian of the person and property of Virginia Lenzovich pursuant to Mental Hygiene Law article 81. The commission to guardian authorized the defendant, among other things, to “[e]xercise any right to an elective share in the estate of the Incapacitated Person’s deceased spouse.” Virginia’s husband, John Lenzovich, died in March 2014, and Virginia died in July 2014. The defendant then moved for judicial settlement of the final account of the defendant as guardian. By order dated January 30, 2015, the Supreme Court discharged the defendant “from any and all liability in connection with all matters embraced in the said final account.” John’s will, in which he disinherited Virginia, was not filed for probate until March 2015.Subsequently, the plaintiff, as administrator of Virginia’s estate, commenced this action to recover damages for legal malpractice and breach of fiduciary duty based on the defendant’s failure to exercise, on Virginia’s behalf, the right of election against John’s estate. The defendant moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint based on documentary evidence, collateral estoppel, and failure to state a cause of action. The Supreme Court granted the motion, and the plaintiff appeals.On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court “must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703-704; see Leon v. Martinez, 84 NY2d 83, 87; Meyer v. North Shore-Long Is. Jewish Health Sys., Inc., 137 AD3d 880, 880-881).The Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for legal malpractice. In a legal malpractice action, a plaintiff must establish, inter alia, that an attorney-client relationship existed (see United States Fire Ins. Co. v. Raia, 94 AD3d 749, 750-751; Nelson v. Kalathara, 48 AD3d 528, 529). Here, the plaintiff failed to allege facts that would support a finding that the defendant, as guardian of the person and property of Virginia under Mental Hygiene Law article 81, had an attorney-client relationship with Virginia (see United States Fire Ins. Co. v. Raia, 94 AD3d at 750-751; Nelson v. Kalathara, 48 AD3d at 529).“A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Fontanetta v. John Doe 1, 73 AD3d 78, 83 [internal quotation marks omitted]; see Leon v. Martinez, 84 NY2d at 88; Bailey v. Peerstate Equity Fund, L.P., 126 AD3d 738, 740). ”To state a cause of action to recover damages for breach of fiduciary duty, a plaintiff must allege: ‘(1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct’” (United States Fire Ins. Co. v. Raia, 94 AD3d at 751, quoting Rut v. Young Adult Inst., Inc., 74 AD3d 776, 777). Here, the defendant submitted documentary evidence that resolved in her favor all factual issues as to whether, by failing to exercise the right of election, the defendant committed misconduct that directly resulted in damages (see generally Deblinger v. Sani-Pine Prods. Co., Inc., 107 AD3d 659; Rut v. Young Adult Inst., Inc., 74 AD3d at 777; Greenberg v. Joffee, 34 AD3d 426, 427).Moreover, we agree with the Supreme Court that the cause of action alleging breach of fiduciary duty was barred by the doctrine of collateral estoppel (see CPLR 3211[a][5]). The defendant established that the decisive issues in this action regarding her failure to exercise the right of election were necessarily decided in the prior guardianship proceeding, and the plaintiff failed to demonstrate that she did not have a full and fair opportunity to contest the prior determination (see Schwarz v. Schwarz, 150 AD3d 915, 917; Clifford v. County of Rockland, 140 AD3d 1108, 1110-1111).Accordingly, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint.RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Lasalle, JJ.MATTER of Sayeda Khan, ap, v. Salman Khan, res — (Proceeding No. 1)MATTER of Salman Khan, res, v. Sayeda Khan, ap — (Proceeding No. 2) (Docket Nos. V-7523-13/15F, V-7523-13/15G, V-7523-13/15H, V-7523-13/15J)Mark A. Green, P.C., Westbury, NY, attorney for the child.In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Conrad D. Singer, J.), dated February 6, 2017. The order, insofar as appealed from, after a hearing, granted the father’s petition to modify an order of custody of the same court dated August 17, 2014, so as to award him sole legal and residential custody of the parties’ child, modified the parenting time schedule set forth in that order, and denied the mother’s petition to modify that order so as to award her sole legal and residential custody of the child.ORDERED that the order dated February 6, 2017, is modified, on the facts and in the exercise of discretion, by deleting the provision thereof modifying the order dated August 17, 2014, by directing that the mother shall have parenting time on Tuesdays at the conclusion of school until Saturday morning and the father shall have parenting time from Saturday morning until Tuesday morning; as so modified, the order dated February 6, 2017, is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for the issuance of a corrected order directing that the father shall have parenting time on Tuesdays at the conclusion of school until Saturday morning and the mother shall have parenting time from Saturday morning until Tuesday morning, or, in the alternative, an amended order setting forth the rationale for the modification to the parenting time schedule set forth in the order dated August 17, 2014.The parties in this child custody proceeding were married in March 2011, and their child was born in September 2012. The parties separated and, pursuant to an order dated August 17, 2014, they were awarded joint custody of the child. The order also set forth a parenting time schedule. In 2015, both the mother and the father filed petitions seeking, inter alia, sole custody of the child. By order dated February 6, 2017, after a fact-finding hearing, the Family Court granted the father’s petition to modify the order dated August 17, 2014, so as to award him sole legal and residential custody of the child, and modified the parenting time schedule set forth in that order by giving the father the parenting time originally given the mother and the mother the parenting time originally given the father. The court also denied the mother’s petition to modify that order so as to award her sole legal and residential custody of the child. The court found that the parents’ relationship had deteriorated to such a degree that they could not share custody. The court also found that, of the two parents, the father was more emotionally and mentally healthy and more likely to promote a loving and healthy relationship with the other parent. The court did not explain its modification of the parenting time schedule. The mother appeals from the order dated February 6, 2017.A party seeking to modify an existing court-ordered custody arrangement must establish that circumstances have changed to the extent that modification of the arrangement is necessary to ensure the best interests of the child (see Matter of Baalla v. Baalla, __ AD3d __, 2018 NY Slip Op 01050 [2d Dept 2018]; Matter of Hargrove v. Langenau, 138 AD3d 846, 846-847; Matter of Kraft v. Orsini, 136 AD3d 916, 917). Upon finding that modification of the arrangement is necessary, the court must examine the totality of the circumstances to determine what new arrangement would further the child’s best interests (see Matter of Scheiner v. Henig, 155 AD3d 874, 875). Relevant factors include the desirability of maintaining stability in the child’s life, the relative quality of the respective home environments, the length of time the present custody arrangement has been in place, and each parent’s past performance, relative fitness, ability to guide and provide for the child’s well-being, and willingness to foster a relationship with the other parent (see Matter of Hannam v. Holmes, 156 AD3d 883, 884; Matter of Scheiner v. Henig, 155 AD3d at 875; Matter of Colvin v. Polhamus, 145 AD3d 1350, 1351). The court’s determination with respect to custody depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parties. Given the court’s opportunity to make firsthand assessments of these crucial considerations, we accord great deference to its credibility findings and will not disturb them unless they lack a sound and substantial basis in the record (see Matter of Hargrove v. Langenau, 138 AD3d at 847).Here, the record provides a sound and substantial basis for the Family Court’s finding that the parties’ relationship had deteriorated to such an extent that joint custody was no longer appropriate (see Matter of Keener v. Pollaro, 145 AD3d 891, 892; Martin v. Martin, 139 AD3d 916, 917). The record also supports the court’s finding that the child’s best interests would be served by awarding sole custody to the father. The record demonstrates, among other things, that the father was more likely than the mother to promote a healthy relationship between the child and the noncustodial parent. Indeed, the mother’s unfounded allegations of sexual abuse amounted to such interference with the parent-child relationship between the child and the father, and was so inconsistent with the best interests of the child, as to raise a strong probability that she is unfit to act as the custodial parent (see Matter of Abramson v. Shaw, 154 AD3d 744, 745). The court also gave appropriate consideration and weight to the testimony of the forensic evaluator (see Matter of Carrasquillo v. Cora, 60 AD3d 852, 853). We find no basis to disturb the court’s modification of the custody arrangement so as to award sole custody to the father (see Matter of Abramson v. Shaw, 154 AD3d at 745-746).However, the record does not support the provision in the Family Court’s order changing the parenting time schedule. The mother requests that the parenting time schedule be restored to the schedule set forth in the August 17, 2014, order, and the father joins in this request. Indeed, it appears that the modification of the original parenting time schedule may have been inadvertent. Therefore, we remit the matter to the Family Court, Nassau County, for the issuance of either a corrected order restoring the parenting time schedule set forth in the order dated August 17, 2014, or, in the alternative, an amended order setting forth the rationale for the modification to the parenting time schedule set forth in the order dated August 17, 2014.BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.By Leventhal, J.P.; Miller, Duffy and Lasalle, JJ.MATTER of Josephine Faponnle, pet, v. New York State Office of Children and Family Services res — (Index No. 12564/15)Gail M. Blasie, Garden City, NY, for petitioner.Eric T. Schneiderman, Attorney General, New York, NY (Anisha S. Dasgupta and Matthew W. Grieco of counsel), for respondents.Proceeding pursuant to CPLR article 78 to review a determination of the designee of the respondent Acting Commissioner of the New York State Office of Children and Family Services, dated March 20, 2015, which, after a hearing, affirmed a prior determination of the New York State Office of Children and Family Services dated November 5, 2014, to revoke the petitioner’s license to operate a group family day care home.ADJUDGED that the determination dated March 20, 2015, is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.The petitioner commenced this proceeding pursuant to CPLR article 78 seeking review of the determination of the designee of the Acting Commissioner of the New York State Office of Children and Family Services (hereinafter OCFS), which affirmed a prior determination of OCFS to revoke the petitioner’s license to operate a group family day care home.In a proceeding of this nature, this Court must determine whether the determination is, on the entire record, supported by substantial evidence (see CPLR 7803[4]; Matter of Occhiogrosso v. New York State Off. of Children & Family Servs., 72 AD3d 1092, 1092; Matter of Bauer v. New York State Off. of Children & Family Servs., Bur. of Early Childhood Servs., 55 AD3d 421, 422).Here, the determination of the designee of the Acting Commissioner of OCFS is supported by substantial evidence (see Matter of Liddell v. New York State Off. of Children & Family Servs., 117 AD3d 742, 743; Matter of Simpson v. New York State Off. of Children & Family Servs., 94 AD3d 1008, 1008). Further, the penalty imposed did not constitute an abuse of discretion (see Matter of Simpson v. New York State Off. of Children & Family Servs., 94 AD3d at 1009; Matter of Occhiogrosso v. New York State Off. of Children & Family Servs., 72 AD3d at 1092). Accordingly, the determination should be confirmed, the petition denied, and the proceeding dismissed on the merits.LEVENTHAL, J.P., MILLER, DUFFY and LASALLE, JJ., concur.By Mastro, J.P.; Chambers, Sgroi and Maltese, JJ.MATTER of Cecilia Mendoza-Pautrat, ap, v. Duman Razdan, res — (Docket Nos. V-20473-09/15M, V-20474-09/15M, V-20475-09/15M, V-20476-09/15M, V-22881-09/15J, V-22882-09/15J, V-22883-09/15J, V-22884-09/15J)Carol Kahn, New York, NY, for appellant.Maricel Gonzalez, Jamaica, 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, Queens County (Jane A. McGrady, Ct. Atty. Ref.), dated July 7, 2016. The order, insofar as appealed from, after a hearing, dismissed that branch of the mother’s amended petition which was to impose civil contempt sanctions against the father for his alleged violations of orders of custody and visitation dated October 20, 2014, and October 21, 2014.ORDERED that the order dated July 7, 2016, is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, that branch of the amended petition which was to impose civil contempt sanctions against the father is granted, and the matter is remitted to the Family Court, Queens County, to adjudicate the father in civil contempt and for the imposition of an appropriate civil contempt sanction in the nature of a fine.The parties are the parents of four children. In orders dated October 20, 2014, and October 21, 2014 (hereinafter together the October 2014 orders), the Family Court awarded sole custody of the children to the mother, with certain visitation to the father. This Court subsequently modified the October 2014 orders with respect to the father’s visitation (see Matter of Razdan v. Mendoza-Pautrat, 137 AD3d 1149).In 2015, the mother commenced this proceeding seeking, inter alia, to hold the father in contempt for his alleged violations of the October 2014 orders. The mother alleged, among other things, that the father improperly withdrew three of the children from school early on the last day of classes in June 2015, and thereafter spent one week on vacation with the children. The mother alleged that the father failed to timely provide her with notice of his planned summer vacation time with the children, and failed to allow her daily phone contact with the children during the vacation, in violation of the October 2014 orders. She further alleged that the father failed to complete certain training for parents of a child with autism, again in violation of the October 2014 orders, which required the father to attend and complete such training. Following a hearing, the Family Court, inter alia, dismissed that branch of the amended petition which was to impose civil contempt sanctions against the father, finding that any noncompliance by the father with the October 2014 orders had not been willful. The mother appeals.A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court (see Cassarino v. Cassarino, 149 AD3d 689, 690; Matter of Hughes v. Kameneva, 96 AD3d 845, 846; Chambers v. Old Stone Hill Rd. Assoc., 66 AD3d 944, 946). To prevail on a motion to hold a party in civil contempt pursuant to Judiciary Law §753(A)(3), the movant must establish by clear and convincing evidence (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate, (2) the appearance, with reasonable certainty, that the order was disobeyed, (3) that the party to be held in contempt had knowledge of the court’s order, and (4) prejudice to the right of a party to the litigation (see Judiciary Law §753[A][3]; El-Dehdan v. El-Dehdan, 26 NY3d 19, 29; Matter of Fitzgerald, 144 AD3d 906, 907). Prejudice is shown where the party’s actions “were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party” (Matter of Figueroa-Rolon v. Torres, 121 AD3d 684, 685; see Savel v. Savel, 153 AD3d 872, 873). In order for contempt sanctions to be imposed pursuant to Judiciary Law §753(A), “willfulness” need not be shown (see El-Dehdan v. El-Dehdan, 26 NY3d at 33-35; Dreher v. Martinez, 155 AD3d 688, 689-690). Once the movant makes the required showing, the burden shifts to the alleged contemnor to refute that showing, or to offer evidence of a defense such as an inability to comply with the order (see El-Dehdan v. El-Dehdan, 26 NY3d at 35; Matter of Fitzgerald, 144 AD3d at 907; Mollah v. Mollah, 136 AD3d 992, 993).Here, the hearing record established that the father violated unequivocal mandates of the Family Court, of which he was aware, by removing the children from school and vacationing with them for a one-week period in 2015 without timely notice to the mother, failing to facilitate daily phone contact between the mother and the children during that period, and failing to complete the required parenting training. The record further demonstrates that the mother was prejudiced by those actions. Contrary to the determination of the court, a finding of willfulness was not required to establish the father’s civil contempt. Accordingly, the court should have held the father in civil contempt of court pursuant to Judiciary Law §753(A) (see Matter of Philie v. Singer, 79 AD3d 1041, 1042; see also Matter of Laland v. Edmond, 13 AD3d 451, 451; Matter of Barcham-Reichman v. Reichman, 250 AD2d 609). We therefore remit the matter to the Family Court, Queens County, to adjudicate the father in civil contempt and for the imposition of an appropriate sanction which, under the circumstances of this case, should be in the nature of a fine.The mother’s additional contention that the father should be required to seek leave of the Family Court prior to filing any further petitions is not properly before this Court, as she did not seek such relief in her amended petition (see generally CPLR 5511; Matter of Davis v. Koch, 130 AD3d 1027).MASTRO, J.P., CHAMBERS, SGROI and MALTESE, JJ., concur.By Scheinkman, P.J.; Balkin, Austin and Hinds-Radix, JJ.MATTER of Pauline R. Cameron, res, v. Garry King, ap — (Docket No. F-1810-06/16G)In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of commitment of the Family Court, Nassau County (Felice J. Muraca, J.), dated January 17, 2017. The order of commitment, in effect, confirmed an order of disposition of the same court (Eileen Daly-Sapraicone, S.M.), made after a hearing, determining that the father willfully violated a prior order of child support, and committed the father to the custody of the Nassau County Correctional Facility for a period of 90 days unless he paid the purge amount of $18,503.69. By decision and order on motion dated April 17, 2017, this Court granted the father’s motion to stay his incarceration pending hearing and determination of the appeal.ORDERED that the order of commitment is affirmed, without costs or disbursements; and it is further,ORDERED that the decision and order on motion of this Court dated April 17, 2017, staying the father’s incarceration pending hearing and determination of the appeal is vacated.The father and the mother have one child together. In 2013, an order of child support was entered against the father. The father failed to make any payments, and in July 2016, the mother commenced this proceeding pursuant to Family Court Act article 4, alleging that the father was in willful violation of the child support order. The Nassau County Department of Social Services (hereinafter the DSS) thereafter intervened in the proceeding because the child was a recipient of public assistance, and the father owed child support through the Support Collection Unit. After a hearing, the Support Magistrate issued an order of disposition determining that the father willfully violated the child support order, and recommending a period of incarceration of 10 days with a purge amount of $500. Thereafter, the Family Court issued an order of commitment dated January 17, 2017, which, in effect, confirmed the order of disposition determining that the father willfully violated the child support order, and committed the father to the custody of the Nassau County Correctional Facility for a period of 90 days unless he paid the purge amount of $18,503.69. The father appeals from the order of commitment.“Proof of failure to pay child support as ordered constitutes prima facie evidence of willful violation of an order of support” (Matter of Gorsky v. Kessler, 79 AD3d 746, 746; see Family Ct Act §454[3]; Matter of Powers v. Powers, 86 NY2d 63, 69-70; Matter of Rojas-Paredes v. Lewis, 149 AD3d 844, 845). ”Once a prima facie showing has been made, the burden shifts to the party that owes the support to offer some competent, credible evidence of his or her inability to make the required payments” (Matter of Gorsky v. Kessler, 79 AD3d at 746; see Family Ct Act §454[3][a]; Matter of Powers v. Powers, 86 NY2d at 69-70; Matter of Rojas-Paredes v. Lewis, 149 AD3d at 845; Matter of Probert v. Probert, 67 AD3d 806, 807).Here, the DSS presented evidence establishing the father’s arrears, and the father failed to offer any competent, credible evidence of his inability to make the required payments. Thus, the Family Court properly, in effect, confirmed the determination of the Support Magistrate that the father willfully violated the child support order (see Matter of Powers v. Powers, 86 NY2d at 69-70; Matter of Rojas-Paredes v. Lewis, 149 AD3d at 845; Matter of Gorsky v. Kessler, 79 AD3d at 746; Matter of Probert v. Probert, 67 AD3d at 807).Where, as here, “a willful violation of an order of support is found, the determination as to the appropriate sanction lies within the Family Court’s discretion” (Matter of Sullivan v. Kilkenny, 141 AD3d 533, 535; see Matter of Rube v. Tornheim, 82 AD3d 1246; Matter of Gorsky v. Kessler, 79 AD3d at 747; Matter of Commissioner of Social Servs. v. Rosen, 289 AD2d 487, 489). Pursuant to Family Court Act §454(3)(a), the court has authority to “commit the respondent to jail for a term not to exceed six months.” Under the circumstances herein, the Family Court did not improvidently exercise its discretion in ordering 90 days of incarceration unless he paid the purge amount (see Matter of Sullivan v. Kilkenny, 141 AD3d 533; Matter of Rube v. Tornheim, 82 AD3d 1246; Matter of Gorsky v. Kessler, 79 AD3d 746; Matter of Victorio v. McBratney, 32 AD3d 962; Matter of Powers v. Horner, 12 AD3d 608, 609).SCHEINKMAN, P.J., BALKIN, AUSTIN and HINDS-RADIX, JJ., concur.By Dillon, J.P.; Leventhal, Connolly and Brathwaite Nelson, JJ.U.S. Bank National Association, etc., res, v. Ricky Paul Goldin, a/k/a Ricky Paull Goldin, appellant def — (Index No. 14941/12)Jack F. Scherer, New York, NY (Paula Schwartz Frome of counsel), for appellant.Adam Leitman Bailey, P.C., New York, NY (Jeffrey R. Metz of counsel), for respondent.In an action to foreclose a mortgage, the defendant Ricky Paul Goldin, a/k/a Ricky Paull Goldin, appeals from two orders of the Supreme Court, Nassau County (Julianne T. Capetola, J.), both dated April 7, 2016. The first order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Ricky Paul Goldin, a/k/a Ricky Paull Goldin, and for an order of reference. The second order, insofar as appealed from, granted the same relief and referred the matter to a referee to ascertain and compute the amount due to the plaintiff on a mortgage loan.ORDERED that the appeal from the first order is dismissed, as the portions of the first order appealed from were superseded by the second order; and it is further,ORDERED that the second order is reversed insofar as appealed from, on the law, those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Ricky Paul Goldin, a/k/a Ricky Paull Goldin, and for an order of reference are denied, and the first order is modified accordingly; and it is further,ORDERED that one bill of costs is awarded to the appellant.In September 2006, the defendant Ricky Paul Goldin, a/k/a Ricky Paull Goldin (hereinafter the appellant), allegedly executed a note in the sum of $650,000 in favor of JPMorgan Chase Bank, N.A. (hereinafter JPMorgan Chase). The note was secured by a mortgage on residential property located in Atlantic Beach. In February 2012, JPMorgan Chase assigned the note to the plaintiff, U.S. Bank National Association. In December 2012, the plaintiff commenced this action against, among others, the appellant to foreclose the mortgage. The appellant served an answer, in which he asserted that the signature on the mortgage did not appear to be his signature. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint and for an order of reference. The appellant opposed the motion. In an order dated April 7, 2016, the Supreme Court granted the motion. In a second order dated April 7, 2016, the court, among other things, granted the same relief and referred the matter to a referee to ascertain and compute the amount due to the plaintiff on the mortgage loan.“Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” (Deutsche Bank Natl. Trust Co. v. Abdan, 131 AD3d 1001, 1002 [internal quotation marks omitted]; see Hudson City Sav. Bank v. Genuth, 148 AD3d 687, 688-689). The burden then shifts to the defendant to raise a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff (see Wells Fargo Bank, N.A. v. Miller, 150 AD3d 1046; CitiMortgage, Inc. v. Guillermo, 143 AD3d 852, 853).Here, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting the note, the mortgage, annexed to which was a certificate of acknowledgment, and an affidavit of merit by a document control officer for the loan servicer, setting forth that the appellant defaulted on the mortgage loan by failing to make the monthly payments due on May 1, 2011, and thereafter. In opposition, however, the appellant raised a triable issue of fact as to the validity of the mortgage produced by the plaintiff and, thus, as to whether the mortgage was enforceable (see Countrywide Home Loans, Inc. v. United Gen. Tit. Ins. Co., 109 AD3d 950, 952).“A certificate of acknowledgment attached to an instrument such as a deed or a mortgage raises the presumption of due execution, ‘which presumption… can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed’” (ABN AMBRO Mtge. Group, Inc. v. Stephens, 91 AD3d 801, 803, quoting Son Fong Lum v. Antonelli, 102 AD2d 258, 260-261, affd 64 NY2d 1158; see Kanterakis v. Minos Realty I, LLC, 151 AD3d 950, 951; Tribeca Lending Corp. v. Huseinovic, 151 AD3d 901, 902; Cunningham v. Baldari, 100 AD3d 584, 585). Here, the appellant’s submissions were sufficient to raise a triable issue of fact as to whether the mortgage was duly executed. Contrary to the appellant’s contention, the unsworn letter from his forensic expert stating that, in her opinion, it was “probable” that the appellant did not sign the mortgage or the mortgage rider, was insufficient to raise a triable issue of fact as to the validity of the signatures (see Banco Popular N. Am. v. Victory Taxi Mgt., 1 NY3d 381, 384). However, the appellant also submitted his detailed affidavit, along with other supporting documents, which raised a triable issue of fact as to whether the challenged signatures were forged (see Countrywide Home Loans, Inc. v. Gomez, 138 AD3d 670, 671; Estaba v. Estaba, 129 AD3d 601, 601; Cooper Capital Group, Ltd. v. Densen, 104 AD3d 898, 898; Seaboard Surety v. Earthline Corp., 262 AD2d 253, 253; Hoffman v. Kraus, 260 AD2d 435, 436).The plaintiff’s remaining contentions are without merit.Accordingly, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the appellant and for an order of reference.DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.PEOPLE, res, v. Joel Grubert, ap — Paul Skip Laisure, New York, NY (Joshua M. Levine of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Danielle M. O’Boyle of counsel), for respondent.Appeal by the defendant from an order of the Supreme Court, Queens County (Kenneth C. Holder, J.), dated September 27, 2016, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.As noted by the Supreme Court, the assessment of 15 points against the defendant under risk factor 12 because he was suspended from his sex offender program as a result of a fight with another inmate did not affect his presumptive risk level. The deduction of those points would leave the defendant with 115 points, 5 points more than the 110 points which rendered him presumptively a level three sex offender (see People v. Fonteboa, 149 AD3d 880; People v. Corn, 128 AD3d 436; People v. Boykin, 102 AD3d 937). Therefore, the defendant’s argument with respect to his assessment of points for this factor is academic.The defendant requested a downward departure from his presumptive risk level based upon the facts that he planned to live with his brother in Lake George and his successful completion of sex offender counseling and treatment. A defendant seeking a downward departure from the presumptive risk level has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [Sex Offender Registration Act (hereinafter SORA)] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Wyatt, 89 AD3d 112, 128; see People v. Gillotti, 23 NY3d 841, 861; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). There was no allegation that the defendant’s response to sex offender treatment was exceptional (see People v. Pendleton, 112 AD3d 600), and the defendant failed to identify any other mitigating factors that are of a kind or to a degree not adequately taken into account by the SORA Guidelines (see People v. Gillotti, 23 NY3d at 861). Accordingly, the defendant failed to establish grounds for a downward departure from his presumptive risk level (see People v. Benoit, 145 AD3d 687, 688).CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Leventhal, J.P.; Miller, Duffy and Lasalle, JJ.MATTER of Kaylarose J. H. (Anonymous). Administration for Childrens Services, res; Rena R. D. (Anonymous), ap — (Docket No. N-32834-14)Cheryl Charles-Duval, Brooklyn, NY, for appellant.Zachary W. Carter, Corporation Counsel, New York, NY (Jane L. Gordon and Barbara Graves-Poller of counsel), for respondent.Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Claire V. Merkine of counsel), attorney for the child.In a proceeding pursuant to Family Court Act article 10, the mother appeals from (1) an order of fact-finding of the Family Court, Kings County (Alan Beckoff, J.), dated March 16, 2016, and (2) an order of disposition of the same court (Erik S. Pitchal, J.) dated May 25, 2016. The order of fact-finding, insofar as appealed from, after a hearing, found that the mother neglected the subject child. The order of disposition, after a hearing, inter alia, released the subject child, upon consent, to the custody of the nonrespondent father under the petitioner’s supervision for a period of six months.ORDERED that the appeal from so much of the order of fact-finding as found that the mother neglected the subject child is dismissed, without costs or disbursements, as that portion of the order of fact-finding was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,ORDERED that the appeal from so much of the order of disposition as released the subject child, upon consent, to the custody of the father under the petitioner’s supervision for a period of six months, is dismissed, without costs or disbursements; and it is further,ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.The petitioner commenced this proceeding pursuant to Family Court Act article 10, alleging that the mother neglected the then 13-year-old subject child by inflicting excessive corporal punishment on her. After a fact-finding hearing, the Family Court found that the mother neglected the child. After a dispositional hearing, the court, inter alia, released the child, upon consent, to the custody of the nonrespondent father under the petitioner’s supervision for a period of six months.The mother appeals.The appeal from so much of the order of disposition as released the child, upon consent, to the custody of the father under the petitioner’s supervision for a period of six months must be dismissed, as no appeal lies from an order entered upon the consent of the appealing party (see Matter of Eunice D. [James F.D.], 111 AD3d 627; Matter of Brian R., 48 AD3d 576, 577). In any event, that portion of the order of disposition has been rendered academic, as it has expired by its own terms (see Matter of Sarah A. [Daniel A.], 109 AD3d 467; Matter of Brian R., 48 AD3d at 577). Nevertheless, the Family Court’s finding of neglect against the mother is not academic, since an adjudication of neglect constitutes “‘a permanent and significant stigma which might indirectly affect the [mother's] status in future proceedings’” (Matter of Najad D. [Kiswana M.], 99 AD3d 707, 708, quoting Matter of Ifeiye O., 53 AD3d 501, 501; see Matter of Brian R., 48 AD3d at 577).To establish neglect of a child, the petitioner must demonstrate, by a preponderance of the evidence, (1) that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship (see Matter of Harmony H. [Welton H.], 148 AD3d 1019, 1020; Matter of Era O. [Emmanuel O.], 145 AD3d 895, 897). ”‘Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare, the use of excessive corporal punishment constitutes neglect’” (Matter of Paul M. [Tina H.], 146 AD3d 961, 962, quoting Matter of Cheryale B. [Michelle B.], 121 AD3d 976, 977). A single incident of excessive corporal punishment may be sufficient to support a finding of neglect (see Matter of Amoria S. [Sharon M.M.], 155 AD3d 629, 629-630; Matter of Tarelle J. [Walter J.], 152 AD3d 593, 595; Matter of Eliora B. [Kennedy B.], 146 AD3d 772, 773; Matter of Za’Niya D. [Kenneth R.], 133 AD3d 657; Matter of Jallah J. [George J.], 118 AD3d 1000, 1001).Here, a preponderance of the evidence supported the Family Court’s finding that the mother neglected the child by inflicting excessive corporal punishment on her (see Matter of Imaani A. [Rafiyq A.], 150 AD3d 845, 846; Matter of Douglas L. [Cheyanne J.], 147 AD3d 840, 841).LEVENTHAL, J.P., MILLER, DUFFY and LASALLE, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Iannacci, JJ.MATTER of Desmond L. Hunter, res, v. Crystal Brown-Ledbetter, ap — (Docket No. V-1706-16)Gary E. Eisenberg, New City, NY, for appellant.Andrew W. Szczesniak, White Plains, NY, attorney for the child.In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Carol S. Klein, J.), dated February 10, 2017. The order, after a hearing, granted the father’s petition for custody of the parties’ child.ORDERED that the order is affirmed, without costs or disbursements.The parties have one child in common, born in 2007. According to the testimony of the father and his wife, the father first became aware that the child was his daughter when she was five years old, and he had not been involved with the child for the first eight years of the child’s life. When the mother contacted the father and his wife in September 2015, the father commenced a relationship with the child. In February 2016, the mother asked the father and his wife to accept custody of the child, and they did so. The father thereafter filed a petition for custody of the child.The father was initially unable to serve his custody petition on the mother and the record demonstrated that she was deliberately evading service. In addition, although an attorney was appointed for the mother and notified her of the proceedings, she failed to appear in court and refused to disclose her location to her attorney. Given these circumstances, the Family Court authorized the father to serve the mother via certified mail, return receipt requested, plus regular mail, in keeping with CPLR 308(5). The father proffered an affidavit of service by mail and a return receipt card that appeared to have been signed by someone other than the mother. The court accepted this as proof of service and scheduled an inquest on the father’s petition.Prior to the commencement of the inquest, at which the mother again did not appear, the mother’s attorney gave the Family Court Judge a copy of a complaint filed by the mother in federal court in Georgia naming the Judge, among others, as a defendant. The mother’s attorney argued that the Judge should recuse herself. The Judge declined to do so, in part on the ground that she had not yet been served with process in the federal action. After the inquest, the Family Court granted the father’s petition for custody of the child. The mother appeals.Although the mother is correct that the father had the burden to demonstrate that he properly served her and that the Family Court had acquired jurisdiction over her (see Stewart v. Volkswagen of Am., 81 NY2d 203, 207; Wells Fargo Bank, N.A. v. Decesare, 154 AD3d 717; Hobbins v. North Star Orthopedics, PLLC, 148 AD3d 784, 786; Matter of H. v. M., 47 AD3d 629, 629-630), her claim that the father failed to meet that burden is without merit. The court providently exercised its discretion in authorizing the father to serve the mother via certified mail, return receipt requested, plus regular mail, in light of the evidence that the mother was deliberately evading service (see CPLR 308[5]; Safadjou v. Mohammadi, 105 AD3d 1423, 1424; Matter of Kaila B., 64 AD3d 647, 648; LTD Trading Enters. v. Vignatelli, 176 AD2d 571; Osserman v. Osserman, 92 AD2d 932, 934). Likewise, the father met his burden of establishing service by proffering the return receipt and an affidavit of service by mailing, and the mother proffered no evidence rebutting this showing (see Wells Fargo Bank, N.A. v. Decesare, 154 AD3d at 717; Washington Mut. Bank v. Huggins, 140 AD3d 858, 859; Rabinowitz v. Rabinowitz, 137 AD3d 884, 885; Board of Mgrs. of Landings at Patchogue Condominium v. 263 Riv. Ave. Corp., 243 AD2d 668, 669; see also Matsil v. Utica First Ins. Co., 150 AD3d 982, 983; Progressive Cas. Ins. Co. v. Metro Psychological Servs., P.C., 139 AD3d 693, 694; Dune Deck Owners Corp. v. JJ & P Assoc. Corp., 71 AD3d 1075, 1076-1077; Mid City Constr. Co., Inc. v. Sirius Am. Ins. Co., 70 AD3d 789, 790; New York & Presbyt. Hosp. v. Allstate Ins. Co., 29 AD3d 547).Judiciary Law §14 provides that “[a] judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding… in which… he [or she] is interested.” ”‘Absent a legal disqualification under Judiciary Law §14, a Trial Judge is the sole arbiter of recusal’” (Matter of Bonefish Grill, LLC v. Zoning Bd. of Appeals of the Vil. of Rockville Ctr., 153 AD3d 1394, 1397, quoting People v. Moreno, 70 NY2d 403, 405; see Matter of Bianco v. Bruce-Ross, 151 AD3d 716, 717; Stepping Stones Assoc., L.P. v. Scialdone, 148 AD3d 855, 856; Trimarco v. Data Treasury Corp., 146 AD3d 1004, 1008). “[A] judge has an obligation not to recuse himself or herself, even if sued in connection with his or her duties, unless he or she is satisfied that he or she is unable to serve with complete impartiality, in fact or appearance” (Trimarco v. Data Treasury Corp., 146 AD3d at 1008 [internal quotation marks omitted]; see Silber v. Silber, 84 AD3d 931, 932; Robert Marini Bldr. v. Rao, 263 AD2d 846, 848). Here, the Family Court Judge providently exercised her discretion in declining to recuse herself.BALKIN, J.P., AUSTIN, SGROI and IANNACCI, JJ., concur.By Balkin, J.P.; Chambers, Roman, Maltese and Connolly, JJ.PEOPLE, etc., res, v. Aydin Mavruk, ap — (Ind. No. 9463/12)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin P. Murphy, J.), rendered January 29, 2016, convicting him of disorderly conduct, 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 Dillon, J.P.; Sgroi, Hinds-Radix, Nelson and Iannacci, JJ.PEOPLE, etc., res, v. Jonathan Ellis, ap — (S.C.I. No. 5949/16)Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T. Hecht, J.), rendered July 18, 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).DILLON, J.P., SGROI, HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Leventhal, J.P.; Austin, Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Nakia Leach, ap — (Ind. No. 457/15)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin P. Murphy, J.), rendered August 5, 2016, convicting him of criminal possession of a weapon in the third 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).LEVENTHAL, J.P., AUSTIN, COHEN, BARROS and CHRISTOPHER, JJ., concur.By Leventhal, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.Mohammad Alam, res, v. Md Gias Uddin, ap — (Index No. 13534/15)Barry Silberzweig, New York, NY (Ellen Sakany of counsel), for appellant.In an action, inter alia, to recover damages for breach of a partnership agreement, the defendant appeals from an order of the Supreme Court, Queens County (Marguerite A. Grays, J.), dated August 25, 2016. The order, insofar as appealed from, denied those branches of the defendant’s cross motion which were to compel arbitration and stay all proceedings in the action pending arbitration or, in the alternative, for summary judgment dismissing the complaint.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The plaintiff alleges that in 2012, he entered into a partnership agreement with the defendant to form the corporation Bhat and Chowdhury, Inc., which now operates a store in Queens. In November 2015, the plaintiff commenced this action against the defendant for an accounting and to recover damages for the defendant’s alleged breach of the partnership agreement and of his fiduciary duties to the plaintiff. In his answer, the defendant denied the validity of the partnership agreement. He alleged that his signature on the agreement was forged and that he is the sole owner of Bhat and Chowdhury, Inc. The defendant asserted various counterclaims, seeking, among other things, a judgment declaring that the purported partnership agreement is a forgery and therefore null and void.On March 16, 2016, the defendant moved, inter alia, to compel arbitration and stay all proceedings in the action pending arbitration or, in the alternative, for summary judgment dismissing the complaint. While maintaining that his signature on the partnership agreement was a forgery, the defendant argued that, nonetheless, because the purported partnership agreement included a broad arbitration clause, the matter should be sent to an arbitrator. He also argued that the partnership agreement was “invalid” pursuant to Partnership Law §62 and, in any event, he terminated the partnership agreement in February 2013, when he told the plaintiff that he did not want to be in a partnership with him. On March 17, 2016, the plaintiff moved for various injunctive relief. The defendant then submitted a cross motion, dated April 6, 2016, in relation to the plaintiff’s motion, seeking the same relief sought in his March 16, 2016, motion.By order dated August 22, 2016, the Supreme Court denied the defendant’s March 16, 2016, motion. It denied those branches of the motion which sought to compel arbitration and stay all proceedings in the action pending arbitration or, in the alternative, summary judgment dismissing the complaint, on the ground that the defendant failed to annex a copy of the purported partnership agreement referred to in his moving papers.The Supreme Court disposed of the plaintiff’s March 17, 2016, motion and the defendant’s cross motion dated April 6, 2016, in an order dated August 25, 2016. As relevant here, the court denied the defendant’s cross motion on the ground that he had sought the identical relief on his prior motion, which was disposed of in the order dated August 22, 2016. The defendant appeals from so much of the August 25, 2016, order as denied those branches of his cross motion which were to compel arbitration and stay all proceedings in the action pending arbitration or, in the alternative, for summary judgment dismissing the complaint. We affirm insofar as appealed from, albeit on grounds different from those relied upon by the Supreme Court.As a general rule, multiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause (see Burbige v. Siben & Ferber, 152 AD3d 641, 642; Valley Natl. Bank v. INI Holding, LLC, 95 AD3d 1108). However, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying those branches of the defendant’s cross motion which were to compel arbitration and stay all proceedings in the action pending arbitration or, in the alternative, for summary judgment dismissing the complaint, as a successive motion, and declining to reach the merits of those issues (see Burbige v. Siben & Ferber, 152 AD3d at 642; Landmark Capital Invs., Inc. v. Li-Shan Wang, 94 AD3d 418, 419; Town of Angelica v. Smith, 89 AD3d 1547, 1549). In this regard, we note that the plaintiff submitted copies of the partnership agreement in connection with his motion, and thus the document was before the court when it decided the plaintiff’s motion and the defendant’s cross motion (cf. Long. Is. Pine Barrens Socy., Inc. v. County of Suffolk, 122 AD3d 688, 691).Where a party has applied for an order compelling arbitration, the court shall direct the parties to arbitrate if, among other conditions, “there is no substantial question whether a valid agreement was made” (CPLR 7503[a]). Here, the defendant alleged that his signature on the purported partnership agreement was a forgery and thus no valid agreement was made. Contrary to the defendant’s contention, the question of forgery is a threshold question for the court and not an arbitrator to determine (see Matter of Primex Intl. Corp. v. Wal-Mart Stores, 89 NY2d 594, 598; Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 6; Ferrarella v. Godt, 131 AD3d 563, 565). Therefore, the defendant failed to establish his entitlement to an order compelling arbitration and staying all proceedings in the action pending arbitration.Nor did the defendant demonstrate his entitlement to summary judgment dismissing the complaint. Contrary to the defendant’s contention, he failed to establish, as a matter of law, that the partnership agreement was invalid or that the partnership was dissolved in February 2013 (cf. Partnership Law §62[1][b]). Furthermore, even if the defendant had established that the partnership was previously dissolved, such fact would not warrant dismissal of the complaint, which seeks an accounting and other relief to which the plaintiff would be entitled even had the defendant established that the partnership was dissolved (cf. Paul v. Ascher, 106 AD2d 619, 620; Shandell v. Katz, 95 AD2d 742, 743; De Martino v. Pensavalle, 56 AD2d 589).Accordingly, those branches of the defendant’s cross motion which were to compel arbitration and stay all proceedings in the action pending arbitration or, in the alternative, for summary judgment dismissing the complaint, should have been denied on the merits.LEVENTHAL, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Leventhal, Connolly and Brathwaite Nelson, JJ.Jan Michael Teitelbaum, ap, v. North Shore- Long Island Jewish Health System, Inc., res — (Index No. 11099/12)In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Peter J. O’Donoghue, J.), entered February 11, 2016. The judgment, upon an order of the same court entered December 1, 2015, made after a hearing, denying the plaintiff’s motion pursuant to CPLR 3215(a) for leave to enter judgment on the issue of liability against the defendant upon its failure to appear or answer and granted the defendant’s cross motion, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint on the ground of lack of personal jurisdiction, is in favor of the defendant and against the plaintiff dismissing the complaint.ORDERED that on the Court’s own motion, the notice of appeal from the order is deemed to be a premature notice of appeal from the judgment (see CPLR 5520[c]); and it is further,ORDERED that the judgment is affirmed, with costs.On May 25, 2012, the plaintiff commenced this action against the defendant to recover damages for, inter alia, medical malpractice. In May 2013, the plaintiff moved pursuant to CPLR 3215(a) for leave to enter judgment on the issue of liability against the defendant upon its failure to appear or answer the complaint. The following month, the defendant cross-moved, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint on the ground of lack of personal jurisdiction. On October 10, 2013, the Supreme Court entered an order denying the plaintiff’s motion and granting the defendant’s cross motion. On appeal by the plaintiff, this Court found that an affidavit submitted by the defendant in opposition to the plaintiff’s motion and in support of its cross motion, from the director of health information management at nonparty Long Island Jewish Medical Center (hereinafter LIJMC), was sufficient to rebut the allegations contained in an affidavit of service of the plaintiff’s process server and raise issues of fact as to whether the defendant was properly served (see Teitelbaum v. North Shore-Long Is. Jewish Health Sys., Inc., 123 AD3d 1006). Consequently, the matter was remitted to the Supreme Court, Queens County, for a hearing to determine whether the defendant was properly served and, thereafter, for a new determination of the plaintiff’s motion and the defendant’s cross motion. Upon remittitur, the Supreme Court issued an order entered December 1, 2015, which, after a hearing, denied the plaintiff’s motion and granted the defendant’s cross motion. A judgment dismissing the complaint was entered upon the order on February 11, 2016.When an affidavit of service is rebutted, the plaintiff bears the ultimate burden of proving by a preponderance of the credible evidence that jurisdiction over the defendant was obtained by proper service of process (see Santiago v. Honcrat, 79 AD3d 847, 848; Roberts v. Anka, 45 AD3d 752, 753; Bankers Trust Co. of Cal. v. Tsoukas, 303 AD2d 343, 343). The Supreme Court’s credibility determinations following a hearing are entitled to substantial deference on appeal, and should not be overturned if supported by a fair interpretation of the evidence (see Santiago v. Honcrat, 79 AD3d at 848; Freud v. St. Agnes Cathedral School, 64 AD3d 678, 679; Staton v. Omwukeme, 277 AD2d 443).Here, the plaintiff’s process server testified that he served the defendant at the health information management department at the address of LIJMC in New Hyde Park (see CPLR 311[a][1]). The process server further testified that he delivered the summons and complaint to an individual identified by first name only, who claimed that she was authorized to accept service for the defendant, and he provided a physical description of that individual in his affidavit of service, as well as at the hearing. The defendant offered evidence that no employee of LIJMC’s health information management department was authorized to accept service on behalf of the defendant, neither the director nor the associate director of health information management knew the person named or described by the process server as the recipient of process, there was no indication in the business records of LIJMC or of the defendant that a summons and complaint in this matter had been received, and the defendant was located at a separate address in Great Neck, which is also the address designated for service of process. Under these circumstances, since the summons was not delivered to the defendant’s place of business or to one of its employees, service pursuant to CPLR 311(a)(1) was invalid (see McDonald v. Ames Supply Co., 22 NY2d 111, 116; Dewey v. Hillcrest Gen. Hosp., 201 AD2d 609, 610; Hailey v. Hyster Co., 190 AD2d 711; Glasser v. Kaswol Constr. Corp., 176 AD2d 858, 859; Reed v. Trailways Bus Sys., 146 AD2d 763, 764; cf. Fashion Page v. Zurich Ins. Co., 50 NY2d 265). Accordingly, the Supreme Court’s determination will not be disturbed.Therefore, the plaintiff’s motion for leave to enter a judgment on the issue of liability against the defendant was properly denied, and the defendant’s cross motion to dismiss the complaint on the ground of lack of personal jurisdiction was properly granted, and judgment was properly entered dismissing the complaint.DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.Lillian Robinson, ap, v. Brooklyn Union Gas Company def, City of New York, res — (Index No. 14657/05)In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Larry D. Martin, J.), entered September 21, 2015. The judgment, insofar as appealed from, upon a jury verdict, and upon the denial of the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the verdict with respect to damages for past and future pain and suffering as inadequate, and apportionment of fault as contrary to the weight of the evidence, awarded the plaintiff the principal sum of only $38,747.00.ORDERED that the judgment is modified, on the facts, by deleting the provision thereof apportioning 80 percent of the fault to the plaintiff; as so modified, the judgment is affirmed, without costs or disbursements, that branch of the plaintiff’s motion which was to set aside the jury verdict with respect to apportionment of fault is granted, and the matter is remitted to the Supreme Court, Kings County, for a new trial with respect to the apportionment of fault and thereafter the entry of an amended judgment unless, within 30 days after service upon her of a copy of this decision and order, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to the apportionment of 55 percent of the fault to her and 45 percent of the fault to the defendant City of New York, and to the entry of an amended judgment accordingly; in the event that the plaintiff so stipulates, then the judgment, as so amended, is affirmed insofar as appealed from, without costs or disbursements.On February 9, 2004, the plaintiff was injured on Van Buren Street, in Brooklyn, when she stepped into a pothole that had been covered by black ice. The incident occurred about 100 feet from the nearest crosswalk, as the plaintiff was crossing the street to return to her home after parking her car. The plaintiff’s fibula was fractured in “at least two” places, and her tibia was fractured as well. One of the fractures was an “open” fracture. The plaintiff underwent surgery, which included the permanent installation of a rod and screws. She commenced this action to recover damages for her injuries. By the time of trial, the only remaining defendant was the City of New York.After trial, the jury returned a verdict finding the City 20 percent at fault and the plaintiff 80 percent at fault, and it awarded damages for the plaintiff’s past pain and suffering in the sum of $150,000 (subject to reduction upon apportionment), but declined to award any damages for future pain and suffering. The plaintiff moved pursuant to CPLR 4404(a) to set aside the verdict with respect to past pain and suffering as inadequate, and to set aside the verdict with respect to apportionment of fault and future pain and suffering as contrary to the weight of the evidence. The Supreme Court denied the plaintiff’s motion, and a judgment in the principal sum of $38,747 was entered. The plaintiff appeals.“A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” (Cinao v. Reers, 109 AD3d 781, 782). This principle also applies to a jury’s apportionment of fault (see Loja v. Lavelle, 132 AD3d 637, 640). Here, the jury’s determination that the plaintiff was 80 percent at fault was not supported by a fair interpretation of the evidence in light of the undisputed evidence regarding the condition of the street (see id. at 640). An apportionment of 55 percent of the fault to the plaintiff and 45 percent of the fault to the defendant City of New York better reflects a fair interpretation of the evidence (see id.).We find no basis, however, to disturb the jury’s verdict with respect to damages. The jury’s verdict with respect to past pain and suffering did not deviate materially from what would be reasonable compensation (see CPLR 5501[c]; Peterson v. MTA, 155 AD3d 795, 798), and we cannot conclude that the jury’s verdict awarding zero damages for future pain and suffering was contrary to the weight of the credible evidence (see Rabinowitz v. Elimian, 55 AD3d 813, 814).BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Dillon, J.P.; Leventhal, Connolly and Brathwaite Nelson, JJ.James Moran, ap, v. Grand Slam Ventures, LLC, respondent def — (Index No. 8291/14)In an action, inter alia, to recover damages for trespass and conversion, the plaintiff appeals from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered September 21, 2016, which granted the motion of the defendant Grand Slam Ventures, LLC, pursuant to CPLR 317 to vacate a prior order of the same court dated February 17, 2016, granting the plaintiff’s motion for leave to enter a default judgment against it on the issue of liability upon its failure to appear or answer the summons with notice, to vacate the note of issue for an inquest on the issue of damages, and to extend its time to file a notice of appearance and demand for a complaint.ORDERED that the order entered September 21, 2016, is reversed, on the law, with costs, and the defendant’s motion is denied.CPLR 317 provides that a person served with a summons, other than by personal delivery to him or her, who does not appear, may be allowed to defend the action within one year after he or she obtains knowledge of entry of the judgment upon a finding of the court that he or she did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138, 141). ”The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317″ (Goldfarb v. Zhukov, 145 AD3d 757, 758). Here, the defendant Grand Slam Ventures, LLC (hereinafter Grand Slam), failed to establish that it did not personally receive notice of the summons in time to defend the action. The affidavit of Grand Slam’s managing member averring that Grand Slam moved its office to an unspecified address in 2010, five years before the action was commenced, and failed to update its address on file with the Secretary of State, was not sufficiently detailed or substantiated to establish lack of actual notice of the action (see Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 AD3d 724, 725-726; Unifiller Sys., Inc. v. Melita Corp., 127 AD3d 961, 962; cf. Dalton v. Noah Constr. & Bldrs., Inc., 136 AD3d 730, 731; Ferguson v. Shu Ham Lam, 59 AD3d 387, 388). In light of the foregoing, it is unnecessary to determine whether Grand Slam demonstrated the existence of a potentially meritorious defense (see Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 AD3d at 726). Accordingly, the Supreme Court should have denied Grand Slam’s motion pursuant to CPLR 317 to vacate a prior order granting the plaintiff’s motion for leave to enter a default judgment on the issue of liability against Grand Slam, to vacate the note of issue for an inquest on the issue of damages, and to extend its time to file a notice of appearance and demand for a complaint.DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.MATTER of Christopher Wilson, ap, v. City of New York res — (Index No. 290/16)In a proceeding pursuant to General Municipal Law §50-e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered March 29, 2016. The order denied the petition and dismissed the proceeding.ORDERED that the order is affirmed, with costs.On July 29, 2015, the petitioner allegedly was injured when he was struck by a temporary chain link fence that he was installing at a construction site in Queens. On January 14, 2016, the petitioner filed an order to show cause and petition pursuant to General Municipal Law §50-e(5) for leave to serve a late notice of claim upon the respondents. In support of his petition, he submitted, inter alia, an incident report dated July 30, 2015, prepared on the form of the respondent New York City School Construction Authority (hereinafter SCA), an incident report dated August 13, 2015, prepared by the petitioner on an SCA form, and a copy of the proposed notice of claim, which alleged that the respondents were negligent and violated Labor Law §§200, 240, and 241, “Rule 23 (all subsections) of the New York State Industrial Code, and the regulations of the Occupational Safety and Health Administration.” The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.Pursuant to General Municipal Law §50-e(5), a court has the discretion to extend the time to serve a notice of claim (see Matter of Leeds v. Port Wash. Union Free School Dist., 55 AD3d 734). In determining whether to grant the extension, the court must consider whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after it arose or within a reasonable time thereafter (see General Municipal Law §50-e[5]; Matter of Maldonado v. City of New York, 152 AD3d 522; Matter of Whittaker v. New York City Bd. of Educ., 71 AD3d 776, 777; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147). The court shall also consider all other relevant circumstances, including whether the petitioner has demonstrated a reasonable excuse for the failure to serve a timely notice of claim and whether the delay would substantially prejudice the public corporation in maintaining its defense on the merits (see Matter of Maldonado v. City of New York, 152 AD3d 522; Matter of Valila v. Town of Hempstead, 107 AD3d 813, 814; Matter of Whittaker v. New York City Bd. of Educ., 71 AD3d at 777).Contrary to the petitioner’s contention, the incident reports dated July 30, 2015, and August 13, 2015, were insufficient to provide the respondents with actual knowledge of the essential facts underlying the petitioner’s claim. These reports merely indicated that the petitioner injured his shoulder when the temporary chain link fence was blown over by the wind or came down on him as he was working on the fence. The reports made no reference to the claims listed in the proposed notice of claim, inter alia, that the respondents were negligent in allowing a dangerous condition to exist, in failing to provide protective and safety devices, and in failing to properly secure or hoist the fence, and violated certain sections of the Labor Law and unspecified sections of the Industrial Code (see Matter of Maldonado v. City of New York, 152 AD3d at 523; Matter of Bhargava v. City of New York, 130 AD3d 819, 820; Kuterman v. City of New York, 121 AD3d 646, 648; Doherty v. City of New York, 251 AD2d 368, 369).Furthermore, the petitioner failed to proffer any excuse for the failure to serve a timely notice of claim (see Matter of D’Agostino v. City of New York, 146 AD3d 880, 882; Matter of Joseph v. City of New York, 101 AD3d 721; Troy v. Town of Hyde Park, 63 AD3d 913, 914). Moreover, the petitioner presented no “evidence or plausible argument” that his delay in serving a notice of claim did not substantially prejudice the respondents in defending on the merits (Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 466; see Matter of A.C. v. West Babylon Union Free Sch. Dist., 147 AD3d 1047, 1048).Accordingly, upon consideration of the relevant factors, the Supreme Court providently exercised its discretion in denying the petition and dismissing the proceeding.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Joel Grubert, ap — (Ind. No. 348/13)Paul Skip Laisure, New York, NY, for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Nancy Fitzpatrick Talcott of counsel), for respondent.Appeal by the defendant from a resentence of the Supreme Court, Queens County (Kenneth C. Holder, J.), imposed January 8, 2014, upon his convictions of sexual abuse in the first degree and endangering the welfare of a child, upon his plea of guilty, the resentence being a period of 10 years of postrelease supervision upon his adjudication as a second child sexual assault felony offender, in addition to the determinate term of imprisonment previously imposed on December 5, 2013, upon his conviction of sexual abuse in the first degree, and a concurrent definite term of imprisonment of one year upon his conviction of endangering the welfare of a child.ORDERED that the resentence is modified, on the law, by vacating the defendant’s adjudication as a second child sexual assault felony offender and by reducing the period of postrelease supervision from 10 years to 6 years; as so modified, the resentence is affirmed.The defendant was charged with three counts of sexual abuse in the first degree and two counts of endangering the welfare of a child. He pleaded guilty to one count of sexual abuse in the first degree (Penal Law §130.65[3]), a class D felony, and one count of endangering the welfare of a child (Penal Law §260.10), a class A misdemeanor. As part of his plea agreement, he was promised a determinate term of imprisonment of five years plus six years of postrelease supervision, and he waived his right to appeal.On December 5, 2013, the promised sentence was imposed. However, on January 8, 2014, the defendant returned to court for resentencing pursuant to Penal Law §70.07 as a second child sexual assault felony offender. Insofar as relevant here, he was resentenced on his conviction of sexual abuse in the first degree to a determinate term of imprisonment of 5 years plus 10 years of postrelease supervision upon his adjudication as a second child sexual assault felony offender.The defendant’s waiver of his right to appeal was valid (see People v. Lopez, 120 AD3d 1437). The waiver precludes review of the defendant’s contention that the imposition of the enhanced term of postrelease supervision was procedurally improper (see People v. Abdul, 112 AD3d 644, 645; People v. Colucci, 94 AD3d 1418, 1419; People v. Backus, 43 AD3d 409, 410). However, the issue of whether the defendant is a second child sexual assault felony offender is not waived, since that issue relates to the legality of the sentence (see People v. Ifill, 96 AD3d 974).Penal Law §70.07(2) defines a sexual assault against a child, in pertinent part, as a “felony offense,… (a) the essential elements of which include the commission or attempted commission of sexual conduct, as defined in subdivision ten of section 130.00 of this chapter, (b) committed or attempted to be committed against a child less than fifteen years old.” Penal Law §130.00(10) defines sexual conduct as “sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact.” Sexual contact could mean the defendant touching a child, a child touching the defendant, or the defendant causing a third person to touch a child (see People v. Ditta, 52 NY2d 657, 661).The defendant was previously convicted of possessing a sexual performance by a child (Penal Law §263.16). A person is guilty of that offense when, “knowing the character and content thereof, he [or she] knowingly has in his [or her] possession or control, or knowingly accesses with intent to view, any performance which includes sexual conduct by a child less than sixteen years of age” (Penal Law §263.16). The sexual conduct referred to is performed by a child, not the defendant or a person acting at the behest of the defendant, and the crime is getting access or control of the performance so the defendant can watch it—not necessarily causing the sexual conduct to occur. As the People correctly concede, the defendant’s prior conviction of possessing a sexual performance by a child did not require sexual contact, and therefore, the defendant is not a second child sexual assault felony offender.Accordingly, the defendant’s adjudication as a second child sexual assault felony offender must be vacated, and the period of postrelease supervision must be reduced to six years.CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Leventhal, J.P.; Sgroi, Lasalle and Brathwaite Nelson, JJ.Marie Sims, etc. res, v. Prom Realty Co., LLC, ap — (Index No. 705653/15)In an action to recover damages for wrongful death, etc., the defendant appeals from an order of the Supreme Court, Queens County (Marguerite A. Grays, J.), entered January 18, 2017. The order denied the defendant’s motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.ORDERED that the order is affirmed, without costs or disbursements.“A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the ‘documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim’” (Fontanetta v. John Doe 1, 73 AD3d 78, 83, quoting Fortis Fin. Servs. v. Fimat Futures USA, 290 AD2d 383, 383; see Leon v. Martinez, 84 NY2d 83, 88; Guido v. Orange Regional Med. Ctr., 102 AD3d 828, 830). ”In order for evidence to qualify as ‘documentary,’ it must be unambiguous, authentic, and undeniable” (Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 996-997 [internal quotation marks omitted]). ”Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” (Granada Condominium III Assn. v. Palomino, 78 AD3d at 997 [internal quotation marks omitted]; see Suchmacher v. Manana Grocery, 73 AD3d 1017, 1017; Fontanetta v. John Doe 1, 73 AD3d at 86).Contrary to the defendant’s contention, the leases, assignments, and modification and extension agreement it submitted in support of its motion did not establish that the defendant was not responsible for the maintenance of the subject property, and accordingly, the evidence did not conclusively establish a defense as a matter of law.Moreover, the certified meteorological records the defendant submitted in support of its motion did not conclusively dispose of the plaintiff’s claim by demonstrating that the storm-in-progress rule applied, as those records concerned climatological data obtained from Central Park, New York, a location in a county different from the accident location.Accordingly, the Supreme Court properly denied the defendant’s motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.LEVENTHAL, J.P., SGROI, LASALLE and BRATHWAITE NELSON, JJ., concur.By Leventhal, J.P.; Austin, Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Kieane James, ap — (S.C.I. No. 15-00093)Appeal by the defendant from a judgment of the County Court, Westchester County (Anne E. Minihan, J.), rendered July 13, 2015, convicting him of attempted criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is reversed, on the law, the plea is vacated, and the matter is remitted to the County Court, Westchester County, for further proceedings in accordance herewith.At an appearance on March 30, 2015, the County Court placed a proposed plea agreement on the record, which included a promised sentence of two years in state prison to be followed by one year of postrelease supervision. After a two-week adjournment to allow the defendant to consider the proposed plea agreement, the defendant returned to the court to enter his plea of guilty. The minutes of the plea proceeding reveal that an off-the-record conference was held that day, during which the court indicated what the promise was regarding the plea and sentence. During the plea proceeding, the defendant acknowledged on the record that he had heard and understood what was said at that conference regarding his sentence. However, while at the outset of the plea proceedings the prosecutor mentioned that the defendant was “looking at two years State Prison,” no mention of postrelease supervision was made on the record at the time of the defendant’s plea. Thereafter, the first mention of postrelease supervision was made at the conclusion of the sentencing proceeding, when the court imposed the sentence.Contrary to the People’s contention, under the circumstances of this case, the defendant’s claim that his plea of guilty was not knowingly or voluntarily entered did not need to be preserved for appellate review (see People v. Turner, 24 NY3d 254, 259; People v. Boyd, 12 NY3d 390, 393; People v. Louree, 8 NY3d 541, 546; People v. Catu, 4 NY3d 242, 245).A trial court has the constitutional duty to advise a defendant, before pleading guilty, of the direct consequences of a plea of guilty, including any period of postrelease supervision (see People v. Cornell, 16 NY3d 801, 802; People v. Catu, 4 NY3d at 244-245). Although the court is not required to engage in any particular litany when allocuting the defendant, the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant (see People v. Catu, 4 NY3d at 245). Here, the record does not make clear that at the time the defendant entered his plea, he was aware that the terms of the County Court’s promised sentence included a period of postrelease supervision (see People v. Cornell, 16 NY3d at 802). Accordingly, the judgment must be reversed, the plea vacated, and the matter remitted to the County Court, Westchester County, for further proceedings.LEVENTHAL, J.P., AUSTIN, COHEN, BARROS and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.PEOPLE, etc., res, v. Quahsym Parker, ap — (Ind. No. 89/12)Appeal by the defendant from a judgment of the County Court, Dutchess County (Stephen L. Greller, J.), rendered June 11, 2013, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, without a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.ORDERED that the judgment is affirmed.Since the evidence submitted on that branch of the defendant’s motion which was to suppress physical evidence demonstrated the existence of probable cause to arrest him (see CPL 140.10[1][b]; People v. DeCasta, 34 AD3d 828), and that the items seized from his apartment were taken pursuant to a search warrant, suppression was properly denied without a hearing (see CPL 710.60[1]; People v. Mendoza, 82 NY2d 415, 421; People v. Newmark, 155 AD3d 974).The defendant’s challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review (see People v. Toxey, 86 NY2d 725, 726; People v. Kelly, 151 AD3d 751, 752). Contrary to the defendant’s contention, the exception to the preservation requirement does not apply in this case, because the defendant’s allocution did not clearly cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v. Lopez, 71 NY2d 662, 666). In any event, the plea allocution was sufficient, as it showed that the defendant understood the charges and made an intelligent decision to accept the plea (see People v. Goldstein, 12 NY3d 295, 301; People v. Seeber, 4 NY3d 780, 781).The defendant’s remaining contention, challenging the imposition of a civil forfeiture of certain items and currency, is unpreserved for appellate review (see People v. Coleman, 138 AD3d 1014, 1015), and, in any event, without merit (see People v. Coleman, 138 AD3d at 1015; cf. People v. Carmichael, 123 AD3d 1053).BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Dillon, J.P.; Leventhal, Connolly and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Joseph Robinson, ap — (Ind. No. 2056/12)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, William H. Branigan, and Josette Simmons McGhee of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald D. Hollie, J.), rendered December 3, 2013, convicting him of criminal possession of a weapon in the second degree, attempted criminal sale of a firearm in the third degree, and false personation, 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 physical evidence.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, the Supreme Court properly concluded that the People established probable cause to arrest the defendant (see People v. Gayden, 28 NY3d 1035, 1037; People v. Jackson, 249 AD2d 327, 327; People v. Lowe, 237 AD2d 903, 904; People v. Irizarry, 203 AD2d 11, affd 84 NY2d 854; People v. Harrington, 193 AD2d 756; cf. People v. Reyes, 83 NY2d 945, 946). Accordingly, the court properly denied that branch of the defendant’s omnibus motion which was to suppress the physical evidence recovered.The defendant’s contention that he was denied his constitutional rights to confront witnesses and present a defense because the Supreme Court limited his cross-examination of the informant is unpreserved for appellate review (see People v. Simmons, 106 AD3d 1115, 1116). In any event, the court did not improvidently exercise its discretion in limiting the defendant’s cross-examination of this witness (see People v. Hicks, 88 AD3d 817, 818). The defendant lacked a good faith basis to question this witness on the existence of a cooperation agreement, and the court allowed the defendant sufficient inquiry into this witness’s “motive to curry favor with” the People (People v. Chin, 67 NY2d 22, 30; see People v. Hicks, 88 AD3d at 818-819).The defendant’s arguments regarding the prosecutor’s opening statement and summation are not fully preserved for appellate review, as he did not object to most of the allegedly improper comments and did not request a curative instruction or move for a mistrial when the Supreme Court sustained an objection that he did raise (see CPL 470.05[2]; People v. Parker-Davidson, 89 AD3d 1114; People v. Malave, 7 AD3d 542). In any event, the prosecutor’s remarks did not deprive the defendant of a fair trial. Finally, contrary to the defendant’s contention, defense counsel’s failure to object to the prosecutor’s comments, without more, did not constitute ineffective assistance of counsel under the circumstances presented, as the defendant failed to demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged shortcomings (see People v. Taylor, 1 NY3d 174, 176; People v. Gonzalez, 44 AD3d 790, 791).DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.PEOPLE, etc., res, v. Quahsym Parker, ap — (Ind. No. 89/12)Appeal by the defendant from a resentence of the County Court, Dutchess County (Stephen L. Greller, J.), imposed December 4, 2013, upon his conviction of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, the resentence being a determinate term of imprisonment of five years to be followed by a period of postrelease supervision of five years.ORDERED that the resentence is affirmed.The defendant contends that the County Court failed to make the requisite inquiry and assign him new counsel when he made complaints about his assigned counsel at a resentencing proceeding. However, the defendant’s conclusory and generalized complaints did not suggest the serious possibility of a genuine conflict of interest or other impediment to the defendant’s representation by assigned counsel (see People v. Porto, 16 NY3d 93, 99-100; People v. Ward, 121 AD3d 1026, 1027). Thus, the court was not obligated to inquire further (see People v. Porto, 16 NY3d at 100-101; People v. Ward, 121 AD3d at 1027).BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.MATTER of Joy Apartments, LLC, ap, v. Town of Cornwall, res — (Index No. 2087/16)Joseph J. Haspel, Goshen, NY, for appellant.Drake Loeb, PLLC, New Windsor, NY (Stephen J. Gaba of counsel), for respondent.In a hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Orange County (Robert A. Onofry, J.), dated August 8, 2016. The order and judgment granted the respondent/defendant’s motion pursuant to CPLR 7804(f) and 3211(a) to dismiss the petition/complaint, and denied the petition and dismissed the proceeding and action.ORDERED that the order and judgment is affirmed, with costs.The petitioner/plaintiff, Joy Apartments, LLC (hereinafter Joy), applied to the Building Department of the respondent/defendant, Town of Cornwall, for a permit to construct a 31-unit apartment building. The Building Department issued a building permit to Joy, and Joy paid a building permit fee of $33,362, based on a rate of $.50 per square foot of floor area. The check Joy used to pay the building permit fee did not indicate that Joy paid the fee under protest. After the construction was complete, the Building Department issued a certificate of occupancy for the apartment building.Thereafter, Joy’s counsel sent a letter to the Building Department indicating that Joy had paid the building permit fee with the understanding that it was an “estimated sum” that was reasonably necessary to cover the costs of issuance, inspection, and enforcement. Joy’s counsel requested an accounting “so we can determine to what extent Joy is due a refund.” The Town’s Building Inspector advised Joy’s counsel that the Town calculated building permit and inspection fees based on the square footage of the project.Joy then commenced this hybrid proceeding/action seeking, among other things, an order directing the Town to account for the expenses it incurred with respect to Joy’s building project and to refund the difference between the reasonable expenses it incurred and the amount Joy paid, and a judgment declaring that the Town’s local law authorizing the building permit fee is void as an unauthorized tax. The Town moved to dismiss the petition/complaint pursuant to CPLR 3211(a)(1), (5), (7), and 7804(f). The Supreme Court granted the motion, and Joy appeals.“[W]here a license or permit fee is imposed under the power to regulate, the amount charged cannot be greater than a sum reasonably necessary to cover the costs of issuance, inspection and enforcement” (Matter of Torsoe Bros. Constr. Corp. v. Board of Trustees of Inc. Vil. of Monroe, 49 AD2d 461, 465). Fees may not be used to generate revenue or offset the cost of general governmental functions (see Matter of Harriman Estates at Aquebogue, LLC v. Town of Riverhead, 151 AD3d 854, 856). To the extent that they do so, they are invalid as an unauthorized tax (see Matter of Torsoe Bros. Constr. Corp. v. Board of Trustees of Inc. Vil. of Monroe, 49 AD2d at 465). However, an exact congruence between the fee and the total expenses is not required (see Suffolk County Bldrs. Assn. v. County of Suffolk, 46 NY2d 613, 621).Here, contrary to the allegations in the petition/complaint, a building permit fee based on the square footage of the project is not illegal per se (see generally Jewish Reconstructionist Synagogue of N. Shore v. Incorporated Vil. of Roslyn Harbor, 40 NY2d 158, 164; Matter of Wildlife Assoc. v. Town Bd. of Town of Southampton, 141 AD2d 651, 652).The Supreme Court correctly found that Joy is not entitled to a refund of any portion of the building permit fee. ”[T]he payment of a tax or fee cannot be recovered subsequent to the invalidation of the taxing statute or rule, unless the taxpayer can demonstrate that the payment was involuntary” (Video Aid Corp. v. Town of Wallkill, 85 NY2d 663, 666). ”Payment under express protest is an indication that a tax [or fee] is not paid voluntarily” (id. at 667; see Mercury Mach. Importing Corp. v. City of New York, 3 NY2d 418, 424-425; Imperial Gardens v. Town of Wallkill, 228 AD2d 562). Where the payment is “necessary to avoid threatened interference with present liberty of person or immediate possession of property, the failure to formally protest will be excused” (Video Aid Corp. v. Town of Wallkill, 85 NY2d at 667; see Five Boro Elec. Contrs. Assn. v. City of New York, 12 NY2d 146; see also Adrico Realty Corp. v. City of New York, 250 NY 29). Further, where the payment of a tax or fee is based on a material mistake of fact, the payment may be recovered even if it was made without protest (see Mercury Mach. Importing Corp. v. City of New York, 3 NY2d 418; Adrico Realty Corp. v. City of New York, 250 NY 29; Matteawan On Main, Inc. v. City of Beacon, 109 AD3d 590).Here, it is undisputed that Joy did not pay the building permit fee under protest. Nor was the payment made under duress because it did not involve a threatened interference with present liberty of person or immediate possession of property (see Video Aid Corp. v. Town of Wallkill, 85 NY2d at 669-670; Mercury Mach. Importing Corp. v. City of New York, 3 NY2d at 425; Imperial Gardens v. Town of Walkill, 228 AD2d at 563). Moreover, Joy’s alleged belief that it was entitled to a refund was not a mistake of fact (see Mercury Mach. Importing Corp. v. City of New York, 3 NY2d 418; Adrico Realty Corp. v. City of New York, 250 NY 29; cf. Matteawan On Main, Inc. v. City of Beacon, 109 AD3d 590).Accordingly, the Supreme Court properly granted the Town’s motion to dismiss the petition/complaint (see CPLR 3211[a][7]; 7804[f]).The parties’ remaining contentions need not be addressed in light of our determination.CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Dillon, J.P.; Leventhal, Connolly and Brathwaite Nelson, JJ.Yelena Razdolskaya, plf-res, v. Roman Lyubarsky ap, Zorik Erik Ikhilov, def-res — (Index No. 500014/15)In an action, inter alia, to recover damages for fraud, the defendants Roman Lyubarsky and Yelena Lyubarsky appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (David B. Vaughan, J.), dated July 15, 2015, as denied those branches of their motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss so much of the cause of action to recover damages for fraud as related to the alleged concealment in defects in the common areas not appurtenant to the subject condominium unit, and pursuant to CPLR 3211(a)(7) to dismiss the cross claims of the defendant Zorik Erik Ikhilov for contribution and common-law and contractual indemnification.ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the motion of the defendants Roman Lyubarsky and Yelena Lyubarsky which were pursuant to CPLR 3211(a)(7) to dismiss the cross claims of the defendant Zorik Erik Ikhilov for common-law and contractual indemnification, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants to the plaintiff.The plaintiff purchased a condominium unit from the defendants Roman Lyubarsky and Yelena Lyubarsky (hereinafter together the Lyubarskys). The plaintiff was represented by the defendant attorney Zorik Erik Ikhilov in connection with the sale. The plaintiff commenced this action against the Lyubarskys and Ikhilov after allegedly discovering that the condominium building required remediation for mold and water damage. Specifically, the plaintiff alleged that the Lyubarskys actively concealed mold and water damage in the unit’s balcony, and assigned storage unit and parking space, and additionally concealed defective conditions throughout the common areas of the building. The plaintiff alleged Ikhilov committed legal malpractice in his representation of her in the transaction. In his answer, Ikhilov asserted cross claims against the Lyubarskys for contribution and common-law and contractual indemnification.The Lyubarskys moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint and all cross claims insofar as asserted against them, and the Supreme Court denied their motion in its entirety. On their appeal, the Lyubarskys concede that the complaint states a cause of action to recover damages for fraud based upon the alleged concealment of defects in the condominium unit’s balcony, and assigned storage unit and parking space. They contend, however, that the court erred in denying those branches of their motion which were to dismiss so much of the fraud cause of action as was premised upon the alleged concealment of defects in the common areas of the building, and that the court erred in denying those branches of their motion which were to dismiss Ikhilov’s cross claims.We agree with the Supreme Court’s determination to deny those branches of the Lyubarskys’ motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss so much of the fraud cause of action as was premised upon the alleged concealment of defects in the common areas of the building. ”New York adheres to the doctrine of caveat emptor and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller which constitutes active concealment” (Simone v. Homecheck Real Estate Servs., Inc., 42 AD3d 518, 520; see Radushinsky v. Itskovich, 127 AD3d 838, 839). ”If however, some conduct (i.e., more than mere silence) on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property” (Hecker v. Paschke, 133 AD3d 713, 716 [internal quotation marks omitted]; see Daly v. Kochanowicz, 67 AD3d 78, 92). ”To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller’s agents thwarted the plaintiff’s efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor” (Jablonski v. Rapalje, 14 AD3d 484, 485; see Perez-Faringer v. Heilman, 95 AD3d 853, 854).Here, accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see CPLR 3211[a][7]; Leon v. Martinez, 84 NY2d 83, 87-88), the complaint sufficiently states a cause of action to recover damages for fraud on the theory that the Lyubarskys actively concealed defects throughout the common areas of the condominium building. The complaint alleges that the Lyubarskys took several steps to hide the existence of leaks and mold damage including, inter alia, claiming that they had lost the key to the storage area in the cellar which was assigned to the subject condominium, and removing and replacing damaged sheetrock from the cellar and the parking area. These allegations, if true, might have thwarted the plaintiff’s efforts to fulfill her responsibilities imposed by the doctrine of caveat emptor with respect to the common areas of the building (see Camisa v. Papaleo, 93 AD3d 623, 625; Margolin v. IM Kapco, Inc., 89 AD3d 690, 692; Jablonski v. Rapalje, 14 AD3d 484, 487; see also Radushinsky v. Itskovich, 127 AD3d at 839). Further, in support of that branch of their motion which sought dismissal pursuant to CPLR 3211(a)(1), the Lyubarskys failed to sustain their burden of submitting documentary evidence to resolve all factual issues as a matter of law, and conclusively dispose of the plaintiff’s fraud cause of action as it related to the common areas of the building (see Leon v. Martinez, 84 NY2d at 87; Camisa v. Papaleo, 93 AD3d at 625).We also agree with the Supreme Court’s determination to deny that branch of the Lyubarskys’ motion which was pursuant to CPLR 3211(a)(7) to dismiss Ikhilov’s cross claim for contribution (see Schauer v. Joyce, 54 NY2d 1, 5). A claim for contribution may be established, among other ways, where the party from whom contribution is sought owed a duty to the injured plaintiff, and a breach of this duty contributed to the plaintiff’s alleged injury (see Morris v. Home Depot USA, 152 AD3d 669, 671-672; Phillips v. Young Men’s Christian Assn., 215 AD2d 825, 827). An “essential requirement” for contribution is “that the parties must have contributed to the same injury” (Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., 71 NY2d 599, 603). ”[C]ontribution is available whether or not the culpable parties are allegedly liable for the injury under the same or different theories” (Raquet v. Braun, 90 NY2d 177, 183 [internal quotation marks omitted]). Here, the Lyubarskys and Ikhilov are alleged to have caused the same injury to the plaintiff, i.e., the diminution in value of the plaintiff’s condominium unit and her interest in the common elements of the building as a result of the alleged mold and water damage. Under these circumstances, Ikhilov has stated a cause of action against the Lyubarskys to recover damages for contribution (see Schauer v. Joyce, 54 NY2d at 5).The Supreme Court, however, should have granted those branches of the Lyubarskys’ motion which were pursuant to CPLR 3211(a)(7) to dismiss Ikhilov’s cross claims for common-law and contractual indemnification. Ikhilov did not allege that the Lyubarskys owed a duty to him, an essential element of a cause of action sounding in common-law indemnification (see Raquet v. Braun, 90 NY2d at 183; Ponce v. Miao Ling Liu, 123 AD3d 786, 787; Lovino, Inc. v. Lavallee Law Offs., 96 AD3d 909, 909). Moreover, as Ikhilov did not allege the existence of a contractual relationship between him and the Lyubarskys, who were not his clients, he failed to state a cause of action for contractual indemnification (see Bivona v. Danna & Assoc., P.C., 123 AD3d 956, 957; Jones v. Rochdale Village, Inc., 96 AD3d 1014, 1018; Galvin Brothers, Inc. v. Town of Babylon, 91 AD3d 715, 716; Richards v. Passarelli, 77 AD3d 905, 909).DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Leventhal, Connolly and Brathwaite Nelson, JJ.Joseph Cusumano plf-res, v. AM&G Waterproofing, LLC, ap, Channel Club Condominium def-res, et al., def — (Index No. 505809/15)In an action to recover damages for personal injuries, etc., the defendant AM&G Waterproofing, LLC, appeals from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated November 1, 2016. The order denied, as premature, the motion of the defendant AM&G Waterproofing, LLC, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, with leave to renew upon the completion of discovery.ORDERED that the order is reversed, on the law, with one bill of costs, and the motion of the defendant AM&G Waterproofing, LLC, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.The plaintiffs commenced this action, inter alia, to recover damages for personal injuries, alleging common-law negligence and violations of Labor Law §§200, 240, and 241(6). Allegedly, the plaintiff Joseph Cusumano, while performing work for his employer, nonparty Remco Maintenance, LLC (hereinafter Remco), on a construction project at 455 East 86th Street in Manhattan (hereinafter the subject property), was standing on a ladder when he was “caused to be precipitated to the ground,” resulting in personal injuries.Prior to the completion of discovery, the defendant AM&G Waterproofing, LLC (hereinafter AM&G), moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. In support of its motion, AM&G submitted, inter alia, the affidavit of its chief financial officer, Thomas Hussey. Hussey asserted that AM&G never contracted any work to Cusumano’s employer, Remco, that AM&G had completed its work on the project at the subject property and was off the project for at least seven months before Cusumano’s alleged fall, and that all its equipment had been removed from the job site months before the alleged incident. In an order dated November 1, 2016, the Supreme Court denied, as premature, the motion, with leave to renew upon the completion of discovery. AM&G appeals.AM&G established its prima facie entitlement to judgment as a matter of law. Through the evidence it presented in support of its motion, AM&G established, prima facie, that it could not be held liable under any theory of liability asserted in the complaint (see Labor Law §§200, 240, 241; see also Haidhaqi v. Metropolitan Transp. Auth., 153 AD3d 1328, 1329; Vazquez v. Humboldt Seigle Lofts, LLC, 145 AD3d 709; Bennett v. Hucke, 131 AD3d 993, affd 28 NY3d 964; Caiazzo v. Mark Joseph Contr., Inc., 119 AD3d 718). AM&G demonstrated, prima facie, that it was not an owner, contractor, or agent with regard to Cusumano’s work, it had no authority to supervise or control Cusumano’s work, it did not supply the ladder from which Cusumano fell, and it had no control over the work site.The parties opposing the motion failed to raise a triable issue of fact. The main argument raised in opposition to the motion was that it was premature. ”A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party’s position may exist but cannot then be stated” (Salameh v. Yarkovski, 156 AD3d 659, 660; see CPLR 3212[f]; Ingram v. Bay Ridge Auto. Mgt. Corp., 145 AD3d 672, 672-673). ”A party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” (Antonyshyn v. Tishman Constr. Corp., 153 AD3d 1308, 1310 [internal quotation marks omitted]; see Rungoo v. Leary, 110 AD3d 781, 783). Here, the parties opposing the motion failed to make the requisite showing (see Haidhaqi v. Metropolitan Transp. Auth., 153 AD3d at 1329).Accordingly, the Supreme Court should have granted AM&G’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.Luz D. Espinosa, ap, v. Fairfield Properties Group, LLC res — (Index No. 3196/13)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Arthur G. Pitts, J.), dated September 1, 2015. The order granted the defendants’ motion for summary judgment dismissing the amended complaint.ORDERED that the order is affirmed, with costs.The plaintiff allegedly was injured on property owned by the defendants when she stepped from a red-brick walkway onto an adjacent lawn and fell on a downwardly sloped strip of gray-colored cement situated between the walkway and the grass. The plaintiff commenced this action to recover damages for personal injuries. The defendants moved for summary judgment dismissing the amended complaint, and the Supreme Court granted the motion. The plaintiff appeals.A landowner has a duty to maintain its property in a reasonably safe manner (see Basso v. Miller, 40 NY2d 233, 241; Behrens v. North Merrick Fruits, Inc., 148 AD3d 972, 973). ”The owner, however, has no duty to protect against an open and obvious condition provided that, as a matter of law, the condition is not inherently dangerous” (Salomon v. Prainito, 52 AD3d 803, 805; see Genefar v. Great Neck Park Dist., 156 AD3d 762; Cupo v. Karfunkel, 1 AD3d 48, 52).Here, the evidence submitted by the defendants in support of their motion, including photographs of the accident site that were authenticated by the plaintiff, established, prima facie, that the cement area at issue was, as a matter of law, readily observable and not inherently dangerous (see Mucciariello v. A & D Hylan Blvd. Assoc., LLC, 133 AD3d 726, 727; Capasso v. Village of Goshen, 84 AD3d 998, 999; Russ v. Fried, 73 AD3d 1153, 1154; Errett v. Great Neck Park Dist., 40 AD3d 1029; Capozzi v. Huhne, 14 AD3d 474). In opposition, even considering the affidavit of the plaintiff’s expert, which failed to set forth his qualifications in detail, the plaintiff failed to raise a triable issue of fact.Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the amended complaint.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Rivera, J.P.; Miller, Duffy and Lasalle, JJ.PEOPLE, etc., res, v. Fidel Chicas, ap — (Ind. No. 366-16)Appeal by the defendant from a judgment of the County Court, Suffolk County (John J. Collins, J.), rendered November 30, 2016, convicting him of attempted grand larceny 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 she 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 Balkin, J.P.; Austin, Roman and Sgroi, JJ.Ibia M. Clarke, res, v. First Student, Inc., etc., ap — (Index No. 15770/12)In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered March 25, 2016. The order denied the defendant’s motion for summary judgment dismissing the amended complaint.ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the amended complaint is granted.In November 2012, the plaintiff, who was then an employee of First Student Management, LLC (hereinafter FSM or the employer), allegedly was injured when she fell due to a defective condition at FSM’s place of business. She commenced this action against the defendant, First Student, Inc., which owned the premises, seeking damages for negligence. After earlier motion practice and an appeal (see Clarke v. Laidlaw Tr., Inc., 125 AD3d 920), discovery proceeded, and the defendant moved for summary judgment dismissing the amended complaint. The defendant contended that it and the plaintiff’s employer were functionally the same entity with respect to the exclusivity provisions of the Workers’ Compensation Law (see Workers’ Compensation Law §§11, 29[6]). The Supreme Court denied the defendant’s motion, and the defendant appeals.Generally, employees injured in the course of their employment may recover against their employers only under the Workers’ Compensation Law (see Workers’ Compensation Law §11; Billy v. Consolidated Mach. Tool Corp., 51 NY2d 152, 156). Workers’ Compensation Law §29(6) expressly provides that “[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee” (see Isabella v. Hallock, 22 NY3d 788, 792-793; Reich v. Manhattan Boiler & Equip. Corp., 91 NY2d 772, 779). The exclusive remedy provisions also bar employees from seeking damages from “alter egos” of their employers (Samuel v. Fourth Ave. Assoc., LLC, 75 AD3d 594, 595; Hageman v. B & G Bldg. Servs., LLC, 33 AD3d 860, 861). The alter ego rule applies when one of the entities in question controls the other or when the two entities operate as a single integrated entity (see Samuel v. Fourth Ave. Assoc., LLC, 75 AD3d at 595). A mere showing that the entities are related—by, for example, sharing officers or ownership—is insufficient (see Moses v. B & E Lorge Family Trust, 147 AD3d 1045, 1046-1047).Here, the defendant established, prima facie, that it was an alter ego of the plaintiff’s employer by submitting evidence that, among other things, in addition to owning the premises, it was the sole owner and manager of the limited liability company that was the plaintiff’s employer, that the plaintiff’s employer was formed to provide bus drivers for the defendant’s pupil transportation business, and that the two entities shared the same Workers’ Compensation insurance policy (see Cappella v. Suresky at Hatfield Lane, LLC, 55 AD3d 522, 523; cf. Crespo v. Pucciarelli, 21 AD3d 1048, 1049). In opposition, the plaintiff failed to raise a triable issue of fact (see Cappella v. Suresky at Hatfield Lane, LLC, 55 AD3d at 523). Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the amended complaint.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Chambers, J.P.; Miller, Hinds-Radix and Duffy, JJ.Ilya Magid, etc., res, v. Sunrise Holdings Group, LLC, ap — (Index No. 511065/14)Motion by the respondent for leave to reargue an appeal from an order of the Supreme Court, Kings County, dated August 27, 2015, which was determined by decision and order of this Court dated November 8, 2017.Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it isORDERED that the motion is granted and, upon reargument, the decision and order of this Court dated November 8, 2017 (see Magid v. Sunrise Holdings Group, LLC, 155 AD3d 714), is recalled and vacated, and the following decision and order is substituted therefor:Tsyngauz & Associates, P.C., New York, NY (Yevgeny Tsyngauz and Simon I. Malinowski of counsel), for appellant.Law Offices of Marc E. Bengualid, PLLC, New York, NY (Etan C. Harris of counsel), for respondent.In an action for a judgment declaring, inter alia, that a UCC-1 financing statement recorded against a cooperative apartment known as 2940 West Fifth Street, Apt. 5A, in Brooklyn, was null and void, and for related injunctive relief, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Yvonne Lewis, J.), dated August 27, 2015, as granted that branch of the plaintiff’s motion which was, in effect, for summary judgment declaring that the UCC-1 financing statement recorded against 2940 West Fifth Street, Apt. 5A, in Brooklyn, was null and void, and that branch of the plaintiff’s motion which was pursuant to CPLR 6301 for a preliminary injunction enjoining the defendant from foreclosing on that cooperative apartment.ORDERED that the order is modified, on the law, by deleting the provisions thereof granting that branch of the plaintiff’s motion which was, in effect, for summary judgment declaring that the UCC-1 financing statement filed against the cooperative apartment known as 2940 West Fifth Street, Apt. 5A, in Brooklyn, was null and void, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant.The plaintiff is the sole trustee of the Magidenko Family Irrevocable Trust (hereinafter the trust), which was created by his parents, Natan Magidenko and Tsilya Magidenko (hereinafter together the Magidenkos), in 2008 to hold their shares of stock in a cooperative apartment known as 2940 West Fifth Street, Apt. 5A, in Brooklyn. The Magidenkos, as grantors, were named as the income beneficiaries of the trust and also retained a life estate in the apartment. In addition to his role as trustee, the plaintiff was also designated as the primary remainderman of the trust, and his children were named as contingent remaindermen.In July 2011, the plaintiff, both personally and in his capacity as trustee, executed a promissory note in favor of the defendant in the amount of $150,000. As collateral for the loan, the plaintiff, in his capacity as trustee, executed a loan security agreement in which he allowed the defendant, inter alia, to record a UCC-1 financing statement against the apartment. Pursuant to the agreement creating the trust, a copy of which was reviewed by the defendant, the trustee, in his fiduciary capacity, had full right, power, and authority, inter alia, “[t]o borrow… such sums of money or other property for such purposes and periods of time, at such rates of interest, as [he] may, in his discretion, determine, to execute promissory notes or other instruments evidencing such borrowings, and if necessary, to furnish any trust property as security therefore.” The loan documentation made no mention of the purpose or purposes for which the loan proceeds would be used.It is undisputed that the plaintiff stopped making payments on the loan after November 1, 2013. After declaring the plaintiff in default by letter dated August 5, 2014, the defendant notified the plaintiff of its intent to sell the subject apartment at a public auction on November 25, 2014.The plaintiff thereafter commenced this action for declaratory and injunctive relief, and simultaneously moved, on an emergency basis, for a preliminary injunction to stop the November 25, 2014, sale, and, in effect, for summary judgment declaring, inter alia, that the UCC-1 financing statement was null and void. In support of his motion, the plaintiff submitted an affidavit in which he averred, inter alia, that the loan proceeds were for his personal use.In opposition, the defendant submitted, inter alia, evidence that $30,000 of the loan proceeds were used to satisfy a money judgment against “Ilya Magid, Natan Magidenko, Tsilya Magidenko and The Magidenko Family Irrevocable Trust,” $85,922.50 of the proceeds were transferred to a law firm that had represented the trust, and all but $10,000 of the remaining proceeds were used to pay various closing costs or were retained by the defendant as “pre-paid interest.” The remaining $10,000 was paid to the defendant as “repayment of a prior loan [the defendant] had made to the [p]laintiff.”In a supplemental affidavit submitted in reply to the defendant’s opposition papers, the plaintiff denied the existence of any prior loan from, or relationship with, the defendant.The Supreme Court, inter alia, granted that branch of the plaintiff’s motion which was, in effect, for summary judgment declaring that the UCC-1 financing statement was null and void. The defendant appeals.Persons dealing with a trustee must take notice of the scope of the trustee’s authority. “An act within [the trustee's] authority will bind the trust estate or the beneficiaries as to third persons acting in good faith and without notice, although the trustee intended to defraud the estate, and actually did accomplish his [or her] purpose by means of the act in question” (Kirsch v. Tozier, 143 NY 390, 395-396; see Dye v. Lincoln Rochester Trust Co., 40 AD2d 583, affd 31 NY2d 1012). Moreover, “[a] person who in good faith transfers money or property to a trustee is not responsible for the proper application of such money or property; and any right or title derived by him from the trustee in consideration of such transfer is not affected by the trustee’s misapplication of such money or property” (EPTL 7-3.3).Here, even assuming that the plaintiff’s moving papers were sufficient to establish his prima facie entitlement to judgment as a matter of law, the Supreme Court erred in awarding summary judgment to the plaintiff declaring that the UCC-1 financing statement filed against the apartment was null and void. The record presents unresolved material issues of fact as to whether the loan proceeds were used to satisfy non-trust debts, and whether the lender acted in good faith in extending the loan (see Matter of Pepi, 1996 WL 34571234, 1996 NYLJ Lexis 64, Nassau County, No. 266193; EPTL 7-3.3; compare Spencer v. Weber, 163 NY 493, and Dye v. Lincoln Rochester Trust Co., 40 AD2d 583, with Kirsch v. Tozier, 143 NY 390).Contrary to the defendant’s contention, the unclean hands doctrine did not preclude the granting of preliminary injunctive relief in this case, as the application of that equitable doctrine presents a question of fact that cannot be resolved at this early stage of the action (see ERS Enters. v. Empire Holdings, 286 AD2d 206, 207; Chai & Tantrakoon v. Royal Realty Corp., 246 AD2d 398, 399; Lew-Mark Cleaners Corp. v. DeMartini, 128 AD2d 758, 759).The defendant’s remaining contention is not properly before this Court.CHAMBERS, J.P., MILLER, HINDS-RADIX and DUFFY, JJ., concur.By Chambers, J.P.; Hinds-Radix, Duffy and Lasalle, JJ.Sperry Associates Federal Credit Union, ap, v. Kunjamma C. John, etc., res — (Index No. 1488/13)In an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Nassau County (Thomas Feinman, J.), entered June 27, 2016. The order granted the defendant’s motion for leave to renew and reargue her prior motion to vacate an order of the same court entered July 21, 2015, made after a hearing (John M. Galasso, J.), denying her motion to vacate a judgment of the same court entered June 3, 2013, in favor of the plaintiff in the total sum of $491,623.04, upon the defendant’s failure to appear and answer, and, upon renewal and reargument, in effect, vacated the order entered July 21, 2015, and thereupon granted the defendant’s motion to vacate the judgment entered June 3, 2013, and to dismiss the action.ORDERED that the order entered June 27, 2016, is affirmed, with costs.On February 1, 2013, the plaintiff commenced this action to recover from the defendant the amount allegedly owed by her pursuant to a promissory note. The defendant did not appear or answer, and a default judgment was entered on June 3, 2013, in favor of the plaintiff in the total sum of $491,623.04.The defendant moved to vacate the default judgment, claiming she was never served. At a hearing on the validity of service of process, the process server testified that he did not have a clear recollection of serving this particular defendant, so he referred to the affidavit of service, which was admitted into evidence. The affidavit of service stated that he served the summons and complaint by delivering the summons and complaint to the defendant’s daughter, a person of suitable age and discretion, on February 15, 2013, at 2:05 p.m., at the defendant’s residence (see CPLR 308[2]). The defendant’s daughter testified that she was at work in her office at 2:05 p.m. on February 15, 2013, and referred to an office email in support of her claim. Therefore, the papers could not have been delivered to her at the defendant’s residence at that time. However, the process server claimed that the time—2:05 p.m.—was a typographical error, and the time noted should have been 7:05 p.m. He asserted that he knew the statement in the affidavit of service was a typographical error because his logbook indicated that he served the defendant at 7:05 p.m. He did not bring the logbook to court because he could not find it.At the conclusion of the hearing, the plaintiff submitted a memorandum of law. The plaintiff argued that the process server was not required to bring the logbook to court, and his failure to do so should not be used to undermine his credibility. The plaintiff further argued that the typographical error regarding the time of day when the papers were served was not a material issue in the case. The hearing court adopted “the plaintiff’s findings of fact and conclusions of law, consequently finding in [the] plaintiff’s favor.” In an order entered July 21, 2015, the Supreme Court denied the defendant’s motion to vacate the default judgment against her.The defendant, represented by a new attorney, Steven Cohn, moved for leave to renew and reargue her motion to vacate the default judgment, based, inter alia, upon discrepancies in the testimony of the process server at the hearing. In opposition, the plaintiff argued that the motion should not be considered because the defendant’s counsel failed to comply with CPLR 321(b) by filing with the court a consent to change attorney stating that his client consented to the substitution counsel, and that the defendant’s contentions were without merit. On May 17, 2016, the defendant filed a consent to change attorney to Steven Cohn. In the order appealed from entered June 27, 2016, the Supreme Court granted leave to renew and reargue on the ground that “relevant facts and controlling law were overlooked,” and, thereupon, in effect, vacated the order entered June 3, 2013, and granted the defendant’s motion to vacate the default judgment on the ground that personal jurisdiction over the defendant was not obtained and to dismiss the complaint. The plaintiff appeals.CPLR 321(b)(1) provides that an attorney of record may be changed by filing a consent to change attorney signed by the retiring attorney and the party. Notice must be given to adverse parties. In this case, it appears that at the time the defendant’s motion for leave to renew and reargue was made, no consent to change attorney had been filed. A technical failure to comply with CPLR 321(b), however, does not render the acts of the new attorney a nullity (see Diamadopolis v. Balfour, 152 AD2d 532; Imor v. Imor, 119 AD2d 913). In this case, the plaintiff claims no prejudice, and the consent to change attorneys was filed while the motion was still pending (see Elite 29 Realty LLC v. Pitt, 39 AD3d 264). Thus, contrary to the plaintiff’s contention, the belated compliance with CPLR 321(b) was not a basis to deny the defendant’s motion (cf. Dobbins v. County of Erie, 58 AD2d 733; Matter of Kitsch Riker Oil Co., 23 AD2d 502).At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence (see Deutsche Bank Natl. Trust Co. v. O’King, 148 AD3d 776). The plaintiff failed to meet that burden. Where a process server has no independent recollection of events, a process server’s logbook may be admitted in evidence as a business record (see Gilmore v. Tindel, 210 AD2d 1). Here, however, the logbook was not produced in court or introduced in evidence. Thus, there was no evidence—other than the process server’s description of a business record not before the court, which the process server claimed he was unable to locate—to support the claim that service occurred at 7:05 p.m., when the person who allegedly received the papers was present to receive them.Thus, the original determination in the order entered July 21, 2015, denying the defendant’s motion to vacate the default judgment against her, overlooked “relevant facts and controlling law,” warranting the granting of leave to reargue, and, thereupon, the granting of the defendant’s motion to vacate the default judgment and to dismiss the action.The plaintiff’s remaining contentions are without merit or need not be considered in light of our determination.CHAMBERS, J.P., HINDS-RADIX, DUFFY and LASALLE, JJ., concur.By Rivera, J.P.; Sgroi, Duffy and Iannacci, JJ.MATTER of Tabatha Foster-Fisher, ap, v. Tyree Foster-Fisher, res — (Docket No. F-33535-10/15)Lance H. Meyer, PLLC, Lake Success, NY, for appellant.In a proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Kings County (Alan Beckoff, J.), dated January 12, 2017. The order denied the mothers’s objections to two orders of the same court (Nicholas J. Palos, S.M.), both dated October 26, 2016, which, after a hearing, respectively, granted the father’s petition for a downward modification of his child support obligation and granted the mother’s petition for arrears only to the extent of calculating the father’s arrears at $60,001.38.ORDERED that the order dated January 12, 2017, is affirmed, without costs or disbursements.The parties, the parents of three children, executed a stipulation of settlement, which was incorporated but not merged into a judgment of divorce and provided that the father would pay a certain amount of child support. The mother subsequently filed an enforcement petition and the father filed a petition for a downward modification of his support obligation. In an order dated October 26, 2016, the Support Magistrate granted the father’s petition, reducing his child support obligation. In a separate order, also dated October 26, 2016, the Support Magistrate granted the mother’s petition for enforcement only to the extent of calculating arrears at $60,001.38. The mother filed objections to the Support Magistrate’s orders, which were denied. The mother appeals from the order denying her objections.To establish entitlement to a downward modification of a child support obligation, a party has the burden of showing that there has been “a substantial change in circumstances” (Family Ct Act §451[3][a]; see Matter of Lagani v. Li, 131 AD3d 1246, 1247). Here, the father demonstrated a substantial change of circumstances based on the fact that the mother was no longer incurring child care expenses for the children (see Matter of Scarduzio v. Ryan, 86 AD3d 573). Thus, the Family Court properly denied the mother’s objections to the Support Magistrate’s order granting the father’s petition for a downward modification of his child support obligation.In light of our determination, the mother’s contention that the calculation of child support arrears would have been higher had the Support Magistrate properly denied the father’s modification petition has been rendered academic.RIVERA, J.P., SGROI, DUFFY and IANNACCI, JJ., concur.By Rivera, J.P.; Cohen, Miller and Christopher, JJ.Wells Fargo Bank, NA, res, v. Edward Mandrin, appellant def — (Index No. 11224/12)R. David Marquez, P.C., Mineola, NY, for appellant.Knuckles, Komosinski & Elliott, LLP, Elmsford, NY (John E. Brigandi of counsel), for respondent.In an action to foreclose a mortgage, the defendant Edward Mandrin appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered June 11, 2014, (2) an order of reference of the same court entered June 12, 2014, and (3) a judgment of foreclosure and sale of the same court entered December 17, 2015. The order entered June 11, 2014, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Edward Mandrin, to strike that defendant’s answer, and for an order of reference. The order of reference entered June 12, 2014, insofar as appealed from, appointed a referee. The judgment of foreclosure and sale entered December 17, 2015, upon the orders, directed the sale of the subject premises.ORDERED that the appeals from the order entered June 11, 2014, and the order of reference entered June 12, 2014, are dismissed; and it is further,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 Edward Mandrin, to strike that defendant’s answer, and for an order of reference, are denied, and the order entered June 11, 2014, and the order of reference entered June 12, 2014, are modified accordingly.The defendant Edward Mandrin defaulted on a mortgage loan secured by his home in New Hyde Park (hereinafter the subject premises). The plaintiff, as the holder of the note, commenced this action against Mandrin, among others, to foreclose the mortgage on the subject premises. Mandrin answered the complaint and asserted the affirmative defenses of, inter alia, lack of standing and failure to comply with the 90-day notice requirement of RPAPL 1304. Prior to the completion of discovery, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against Mandrin, to strike his answer, and for an order of reference. By order entered June 11, 2014, the Supreme Court, inter alia, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against Mandrin, to strike his answer, and for an order of reference. By order of reference entered June 12, 2014, the court, among other things, appointed a referee. By judgment of foreclosure and sale entered December 17, 2015, the court directed the sale of the subject premises. Mandrin appeals from the orders and the judgment.The appeals from the order entered June 11, 2014, and the order of reference entered June 12, 2014, respectively, must be dismissed, as the right of direct appeal therefrom terminated with the entry of the judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1]).“When a plaintiff’s standing to commence a foreclosure action is at issue, it is incumbent upon the plaintiff to prove its standing to be entitled to relief” (Emigrant Mtge. Co., Inc. v. Persad, 117 AD3d 676, 676). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 360-362; Hudson City Sav. Bank v. Genuth, 148 AD3d 687, 689). Here, the plaintiff established its standing with proof that it was the holder of the note at the time that the action was commenced (see Generation Mtge. Co. v. Medina, 138 AD3d 688, 689; Wachovia Morg. Corp. v. Lopa, 129 AD3d 830, 831; Emigrant Mtge. Co., Inc. v. Persad, 117 AD3d 676). In opposition, Mandrin failed to raise a triable issue of fact.However, reversal is required in light of the plaintiff’s failure to establish strict compliance with the 90-day notice requirement of RPAPL 1304. ”‘[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition’” (Wells Fargo Bank, N.A. v. Trupia, 150 AD3d 1049, 1050, quoting Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 106). ”The statute requires that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower” (Wells Fargo Bank, N.A. v. Trupia, 150 AD3d at 1050; see RPAPL 1304). By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing (see Wells Fargo Bank, N.A. v. Trupia, 150 AD3d at 1050). Proof of the requisite mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure (see M&T Bank v. Joseph, 152 AD3d 579; Wells Fargo Bank, N.A. v. Trupia, 150 AD3d at 1050-1051; Citibank, N.A. v. Wood, 150 AD3d 813, 814; Citimortgage, Inc. v. Pappas, 147 AD3d 900, 901-902; Flagstar Bank, FSB v. Mendosa, 139 AD3d 898, 900).Here, in moving for summary judgment, the plaintiff failed to submit an affidavit of service or other proof of mailing by the post office establishing that it properly served Mandrin pursuant to RPAPL 1304. The unsubstantiated and conclusory statement of a vice president of the plaintiff that a 90-day pre-foreclosure notice “was forwarded by regular and certified mail” to Mandrin “in full compliance with all requirements of RPAPL §1304″ was insufficient to establish that the notice was actually mailed to Mandrin by first-class and certified mail (see M&T Bank v. Joseph, 152 AD3d 579; Wells Fargo Bank, N.A. v. Trupia, 150 AD3d at 1050-1051; Citibank, N.A. v. Wood, 150 AD3d at 814; Cenlar, FSB v. Censor, 139 AD3d 781, 782-783). Because the plaintiff failed to satisfy its prima facie burden with respect to RPAPL 1304, that branch of its motion which was for summary judgment on the complaint insofar as asserted against Mandrin should have been denied, regardless of the sufficiency of Mandrin’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).The parties’ remaining contentions are either without merit or need not be addressed in light of our determination.RIVERA, J.P., COHEN, MILLER and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Roman, Barros and Iannacci, JJ.PEOPLE, etc., res, v. Adrian Turner, ap — (Ind. No. 10553/12)Paul Skip Laisure, New York, NY (David P. Greenberg of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Arieh Schulman of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Elizabeth Foley, J.), rendered October 15, 2014, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 NY3d 248; People v. Rance, 122 AD3d 949; People v. Corbin, 121 AD3d 803). Accordingly, the defendant’s valid waiver of his right to appeal precludes appellate review of his contention that the Supreme Court improvidently exercised its discretion in allowing the prosecution to resubmit the charges against him to the grand jury (see People v. Callahan, 80 NY2d 273, 280; People v. Corbin, 121 AD3d at 804; People v. Abdul, 112 AD3d 644, 645).MASTRO, J.P., ROMAN, BARROS and IANNACCI, JJ., concur.By Chambers, J.P.; Hinds-Radix, Duffy and Lasalle, JJ.PEOPLE, etc., res, v. Joseph Rovinsky, ap — (Ind. No. 2389/11)Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.Timothy D. Sini, District Attorney, Riverhead, NY (Michael J. Brennan of counsel), for respondent.Appeal by the defendant from a resentence of the County Court, Suffolk County (John J. Toomey, J.), imposed March 28, 2016, upon his conviction of assault in the first degree and assault in the second degree, upon his plea of guilty, after remittitur from this Court for resentencing (see People v. Rovinsky, 135 AD3d 969), the resentence being a determinate term of imprisonment of 15 years to be followed by 5 years of postrelease supervision for the conviction of assault in the first degree, to be served concurrently with a determinate term of imprisonment of 5 years to be followed by 3 years of postrelease supervision for the conviction of assault in the second degree.ORDERED that the matter is remitted to the County Court, Suffolk County, for further proceedings on the defendant’s motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and thereafter a report to this Court limited to its findings with respect to the motion and whether the defendant established his entitlement to the withdrawal of his plea of guilty, and the appeal is held in abeyance pending receipt of the County Court’s report, which shall be filed with all convenient speed.The defendant contends, and the People agree, that the County Court erred in failing to consider the defendant’s oral pro se application at the resentence proceeding to withdraw his plea of guilty. There is no indication in the record that the court ruled on the defendant’s motion. The court neither granted nor denied it on the record before us. As CPL 470.15(1) serves as a legislative restriction on this Court’s power to review issues not ruled upon by the trial court (see People v. Concepcion, 17 NY3d 192, 195; People v. LaFontaine, 92 NY2d 470, 474; see also People v. Ingram, 18 NY3d 948, 949), the court’s failure to rule on the motion precludes our review of the issue raised by the defendant’s appeal (see People v. McDonald, 125 AD3d 1280; People v. Hallmark, 122 AD3d 1438). Accordingly, the matter must be remitted to the County Court, Suffolk County, for further proceedings on the defendant’s motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and thereafter a report to this Court on the motion and whether the defendant established his entitlement to withdrawal of his plea of guilty. The appeal will be held in abeyance pending receipt of the County Court’s report. We express no opinion as to the merits of the defendant’s motion, and we decide no other issues at this time.CHAMBERS, J.P., HINDS-RADIX, DUFFY and LASALLE, JJ., concur.By Chambers, J.P.; Austin, Miller and Maltese, JJ.MATTER of Anthony John Sottilare, Jr., ap, v. Kerrin E. Fahner, res — (Docket Nos. V-03155-16/16B, F-00580-16/16A)Patrick Michael Megaro, Forest Hills, NY, for appellant.In a child custody proceeding pursuant to Family Court Act article 6, and a related child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Jeffrey Arlen Spinner, J.), dated July 12, 2017. The order granted the mother’s motion pursuant to 22 NYCRR 130-1.1 for an award of attorneys’ fees in the sum of $10,995.50.ORDERED that the order is modified, on the facts and in the exercise of discretion, by reducing the award of attorneys’ fees from the sum of $10,995.50 to the sum of $4,000; as so modified, the order is affirmed, without costs or disbursements.The parties, who were never married, are the parents of one child, born in May 2006. In March 2008, the Brevard County Circuit Court in Florida awarded the mother primary physical custody of the child, with visitation to the father. In 2011, the mother moved to New York. In January 2016, the father commenced a proceeding in the Family Court, Suffolk County, seeking to hold the mother in contempt for leaving Florida without his consent and for refusing him visitation with the child. The Family Court rejected the petition on the ground that it lacked jurisdiction. The father re-filed the petition, stating that the Florida court had informed him that New York, and not Florida, had jurisdiction. The matter proceeded in the Family Court, but, in July 2016, the father commenced an identical proceeding in Florida to hold the mother in contempt. In October 2016, after obtaining a favorable ruling from the Florida court, the father asked the Family Court to dismiss the New York proceeding. The Family Court granted the father’s application, and also granted the mother’s motion pursuant to 22 NYCRR 130-1.1 for an award of attorneys’ fees she incurred in the New York proceeding. The father appeals.“‘The court rule set forth in 22 NYCRR 130-1.1, which is intended to limit frivolous and harassing behavior, authorizes a court, in its discretion, to award a party in a civil action reasonable attorney’s fees resulting from frivolous conduct’” (Marrero v. New York City Tr. Auth., 150 AD3d 1097, 1098, quoting Matter of Miller v. Miller, 96 AD3d 943, 944 [citations omitted]). Conduct is frivolous if, inter alia, it is “completely without merit in law” or “asserts material factual statements that are false” (22 NYCRR 130-1.1[c][1], [3]; see Marrero v. New York City Tr. Auth., 150 AD3d at 1098; Matter of Ernestine R., 61 AD3d 874, 876). ”In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party” (22 NYCRR 130-1.1[c]).Here, the Family Court providently exercised its discretion in granting the mother’s motion for an award of attorneys’ fees pursuant to 22 NYCRR 130-1.1 based on the frivolous conduct of the father in bringing and prosecuting two identical proceedings, one in New York and the other in Florida, after representing to the Family Court that the Florida court would not exercise jurisdiction in this matter. However, the sum awarded is modified to the extent indicated, in the exercise of discretion.CHAMBERS, J.P., AUSTIN, MILLER and MALTESE, JJ., concur.By Leventhal, J.P.; Cohen, Maltese and Barros, JJ.PEOPLE, etc., res, v. Steven Daniels, ap — (Ind. No. 1342/14)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry Kron, J.), rendered September 24, 2015, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s purported waiver of his right to appeal was invalid (see People v. Bradshaw, 18 NY3d 257; People v. Brown, 122 AD3d 133). The Supreme Court’s statements improperly suggested that the waiver of the right to appeal was mandatory, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Santeramo, 153 AD3d 1286, 1286; People v. Pelaez, 100 AD3d 803, 803). The record also does not demonstrate that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to his plea of guilty (see People v. Santeramo, 153 AD3d at 1286-1287; People v. Pacheco, 138 AD3d 1035, 1036).Moreover, although the record on appeal reflects that the defendant executed a written appeal waiver form, the transcript of the plea proceedings shows that the Supreme Court did not ascertain on the record whether the defendant had read the waiver, discussed it with counsel, or was even aware of its contents (see People v. Callahan, 80 NY2d 273, 283; People v. Santeramo, 153 AD3d at 1287; People v. Pacheco, 138 AD3d at 1036; People v. Brown, 122 AD3d at 145).Since the defendant’s waiver of the right to appeal was invalid, this Court has reviewed the defendant’s contention that the Supreme Court improvidently exercised its discretion in denying him youthful offender status (see People v. Hesterbey, 121 AD3d 1127, 1128; cf. People v. Nye, 299 AD2d 371, 372).“The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case” (People v. Hesterbey, 121 AD3d at 1128 [internal quotation marks omitted]; see People v. Rudolph, 21 NY3d 497, 500; People v. Beer, 146 AD3d 895, 897). The defendant failed to comply with the conditions of his plea agreement, inter alia, by failing to appear at sentencing and by being rearrested. Despite then receiving an additional opportunity to be sentenced as a juvenile offender, the defendant absconded from the jurisdiction. Accordingly, under the circumstances of this case, the Supreme Court providently exercised its discretion in denying him youthful offender status (see CPL 720.20[1]; People v. Cameron, 107 AD3d 733, 733; People v. Kinloch, 7 AD3d 734, 735).LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.Glennie Williams, ap, v. City of Yonkers, res — (Index No. 64190/15)In an action, inter alia, to recover damages for wrongful termination of employment, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lawrence H. Ecker, J.), dated April 27, 2016. The order granted the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint.ORDERED that the order is affirmed, with costs.The plaintiff began his employment with the defendant, City of Yonkers, in 1987 as an “environmental maintenance worker.” The position required him to possess a valid New York State class B commercial driver license to operate a City-owned sanitation truck, and the plaintiff obtained that license in 1987.By letter dated June 1, 2009, the City informed the plaintiff that he no longer possessed a valid New York State class B commercial driver license and advised him that, unless he obtained such a license by August 28, 2009, his employment would be terminated. The City sent the plaintiff a follow-up letter dated August 17, 2009, reminding him that he had until August 28, 2009, to produce a copy of the required license, and that if he failed to do so, his employment would be terminated. The plaintiff’s employment with the City was terminated on August 28, 2009, due to his failure to produce proof that he had a valid class B commercial driver license.On April 4, 2013, the plaintiff, acting pro se, commenced a CPLR article 78 proceeding against the City, alleging that he was wrongfully terminated from his position and that his union failed to grieve his termination or obtain a hearing prior to his termination. In his petition, the plaintiff alleged that he was unable to renew his class B commercial driver license due to a learning disability and that the City had helped him obtain his prior license. The plaintiff also alleged that other people who worked for the City’s Sanitation Department did not have the required commercial driver license and were not terminated. In his petition, the plaintiff sought reinstatement to his former position and back-pay.The City opposed the petition on procedural and substantive grounds. In a judgment dated August 20, 2013, the Supreme Court denied the petition and dismissed the proceeding on the grounds that the petition was time-barred, the plaintiff failed to exhaust his administrative remedies, and the papers were facially defective.Through counsel, in August 2015, the plaintiff commenced this action against the City to recover damages and reinstatement to his prior position as a result of his wrongful termination stemming from a breach of the collective bargaining agreement (first and second causes of action) and damages stemming from violations of Executive Law §296 (third and fourth causes of action). The City moved pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint, and in the order appealed from, the Supreme Court granted the motion. The court determined that the first two causes of action were barred by the doctrine of res judicata, as those causes of action were the same as those alleged in the previous CPLR article 78 proceeding, which had been dismissed. The court further determined that the third and fourth causes of action were barred by the applicable three-year statute of limitations, and that the tolling provisions of CPLR 208 did not apply to this case.Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based on the doctrine of res judicata. The doctrine of res judicata bars the litigation of a claim or defense if, in a former litigation between the parties, or those in privity with them, in which there was a final conclusion, the subject matter and the causes of action are identical or substantially identical (see Xiao Yang Chen v. Fischer, 6 NY3d 94, 100; O’Connell v. Corcoran, 1 NY3d 179, 184-185). ”Typically, principles of res judicata require that once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Xiao Yang Chen v. Fischer, 6 NY3d at 100 [internal quotation marks omitted]; see Burgos v. New York Presby. Hosp., 155 AD3d 598; Parolisi v. Slavin, 98 AD3d 488, 489).“[W]here a plaintiff in a later action brings a claim for damages that could have been presented in a prior CPLR article 78 proceeding against the same party, based upon the same harm and arising out of the same or related facts, the claim is barred by res judicata” (Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 347-348; see Ehrlich v. Incorporated Vil. of Sea Cliff, 95 AD3d 1068, 1069; Pauk v. Board of Trustees of City Univ. of N.Y., 111 AD2d 17, 20-21, affd 68 NY2d 702). ”[A] dismissal on the ground of the statute of limitations is considered to be on the merits for res judicata purposes” (Webb v. Greater N.Y. Auto. Dealers Assn., Inc., 144 AD3d 1134, 1135; see Smith v. Russell Sage Coll., 54 NY2d 185, 194; Johnson v. City of New York, 148 AD3d 1126, 1127; Sosa v. JP Morgan Chase Bank, 33 AD3d 609, 611). Here, the plaintiff’s first and second causes of action set forth in the complaint were identical to those set forth in the CPLR article 78 proceeding, which had been dismissed by the Supreme Court. Consequently, the court properly granted those branches of the City’s motion which were to dismiss the first and second causes of action as barred by the doctrine of res judicata (see Matter of Carter v. Walt Whitman N.Y. City Hous. Auth., 98 AD3d 1113, 1114; Sosa v. JP Morgan Chase Bank, 33 AD3d at 611; Marinelli Assoc. v. Helmsley-Noyes Co., 265 AD2d 1, 5; Pauk v. Board of Trustees of City Univ. of N.Y., 111 AD2d at 20-21; see also Youngelman v. New York City Tr. Auth., 303 AD2d 751, 751-752).Further, to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired (see Amrusi v. Nwaukoni, 155 AD3d 814; Stewart v. GDC Tower at Greystone, 138 AD3d 729, 729). If the defendant meets this initial burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, show that an exception to the limitations period is applicable, or demonstrate that the plaintiff actually commenced the action within the applicable limitations period (see Elia v. Perla, 150 AD3d 962, 964; Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1086; Williams-Guillaume v. Bank of Am., N.A., 130 AD3d 1016, 1017). Causes of action brought under Executive Law §296 have a three-year statute of limitations (see CPLR 214[2]; Cahill v. State of N.Y. Stony Brook Univ. Hosp., 139 AD3d 779, 780; Kwarren v. American Airlines, 303 AD2d 722).Here, the City met its initial burden in demonstrating that the plaintiff failed to commence an action predicated upon violations of Executive Law §296 within three years of his termination of employment (see Executive Law §296; CPLR 214[2]; Kwarren v. American Airlines, 303 AD2d at 722). In opposition, the plaintiff failed to raise a question of fact as to the applicability of the “insanity” toll pursuant to CPLR 208 (see McCarthy v. Volkswagen of Am., 55 NY2d 543, 548-549; Vissichelli v. Glen-Haven Residential Health Care Facility, Inc., 136 AD3d 1021, 1022; Burgos v. City of New York, 294 AD2d 177), show that any exception to the limitations period is applicable, or demonstrate that he actually commenced the action within the limitations period. Consequently, the Supreme Court properly granted those branches of the City’s motion which were to dismiss the third and fourth causes of action as barred by the applicable statute of limitations.The plaintiff’s remaining contentions are without merit.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Leventhal, J.P.; Cohen, Maltese and Barros, JJ.NYCTL 1998-2 Trust res, v. 104-26 Jamaica Ave, LLC, appellant def — (Index No. 20435/13)Harry C. Goberdhan, Jamaica, NY, for appellant.Zachary W. Carter, Corporation Counsel, New York, NY (Vincent D’Orazio and Kevin R. Harkins of counsel), for respondents.In an action to foreclose tax liens on property owned by the defendant 104-26 Jamaica Ave, LLC, the defendant 104-26 Jamaica Ave, LLC, appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), dated September 11, 2015. The order, insofar as appealed from, granted those branches of the plaintiffs’ motion which were for summary judgment on the complaint insofar as asserted against the defendant 104-26 Jamaica Ave, LLC, and to strike its answer, and denied that defendant’s cross motion for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is affirmed insofar as appealed from, with costs.In this action to foreclose tax liens on property owned by the defendant 104-26 Jamaica Ave, LLC (hereinafter Jamaica Ave), the plaintiffs moved, inter alia, for summary judgment on the complaint insofar as asserted against Jamaica Ave and to strike its answer. Jamaica Ave cross-moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court granted those branches of the plaintiffs’ motion and denied Jamaica Ave’s cross motion. Jamaica Ave appeals.The plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law by submitting the subject tax lien certificate along with proof that no payments had been made on the tax lien (see NYCTL 2008-A Trust v. Trinco, Inc., 148 AD3d 1035, 1035-1036; NYCTL 2008-A Trust v. Lee Zhen Xiang, 121 AD3d 1062, 1063; NYCTL 2009-A Trust v. Tsafatinos, 101 AD3d 1092, 1093; NYCTL 1996-1 Trust v. Orit Diagnostic Ctr., Inc., 19 AD3d 668, 668; NYCTL 1996-1 Trust v. Westmoreland Assoc., 2 AD3d 811, 812). In opposition, Jamaica Ave failed to raise a triable issue of fact rebutting the plaintiffs’ showing or as to the merit of its affirmative defenses (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Zuckerman v. City of New York, 49 NY2d 557, 562; NYCTL 2008-A Trust v. Trinco, Inc., 148 AD3d at 1036; NYCTL 1998-2 Trustee v. 2388 Nostrand Corp., 69 AD3d 594, 595).Accordingly, the Supreme Court properly granted those branches of the plaintiffs’ motion which were for summary judgment on the complaint insofar as asserted against Jamaica Ave and to strike its answer, and, for the same reasons, properly denied Jamaica Ave’s cross motion for summary judgment dismissing the complaint insofar as asserted against it.LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.Stephen J. Nachbar ap, v. Cornwall Yacht Club res — (Index No. 1665/15)In an action to recover damages for defamation, breach of fiduciary duty, intentional and negligent infliction of emotional distress, and prima facie tort, the plaintiffs appeal from an order of the Supreme Court, Orange County (Maria Vazquez-Doles, J.), dated September 28, 2016. The order granted those branches of the motion of the defendant Stephen Negersmith and the separate motion of the remaining defendants which were pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them, and denied the plaintiffs’ cross motion for leave to amend the complaint.ORDERED that the order is affirmed, with one bill of costs payable to the defendants appearing separately and filing separate briefs.The plaintiff Stephen J. Nachbar is a member of the defendant Cornwall Yacht Club (hereinafter the Club). The plaintiff Sharon Minutolo is Nachbar’s domestic partner, and while not a member of the Club, used the Club facilities as Nachbar’s guest. After the defendant Stephen Negersmith, a Club member, filed a complaint against Nachbar and Minutolo, the Board of Directors (hereinafter the Board) held a special meeting at which Nachbar appeared to answer the complaint and call witnesses. Ultimately, the Board did not take action against Nachbar but decided to exclude Minutolo from the Club for a period of one year.The plaintiffs commenced this action against Negersmith, alleging defamation, and against the Club, the Board, and its individual members (hereinafter collectively the Club defendants), alleging, on behalf of Nachbar, breach of fiduciary duty, and on behalf of Minutolo, intentional and negligent infliction of emotional distress and prima facie tort. The Club defendants moved, and Negersmith separately moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them, and the plaintiffs cross-moved for leave to amend the allegations of defamation in the complaint. The Supreme Court granted the defendants’ motions and denied the plaintiffs’ cross motion. The plaintiffs appeal.The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct (see Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 AD3d 804; Rut v. Young Adult Inst., Inc., 74 AD3d 776). The directors of a not-for-profit corporation like the Club “have the fiduciary obligation to act on behalf of the corporation in good faith and with reasonable care so as to protect and advance its interests” (Pebble Cove Homeowners’ Assn. v. Shoratlantic Dev. Co., 191 AD2d 544, 545; see N-PCL 717[a]; Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 NY2d 530, 538; Straus v. 345 E. 73 Owners Corp., 181 AD2d 483). Here, however, the complaint did not allege that the Club defendants failed to act in good faith on behalf of the Club or its members’ collective interests, but merely alleged that they failed to act in Nachbar’s personal best interest (cf. Pebble Cove Homeowners’ Assn. v. Shoratlantic Dev. Co., 191 AD2d at 545; see also Straus v. 345 E. 73 Owners Corp., 181 AD2d 483). Accordingly, the complaint did not state a cause of action to recover damages for breach of fiduciary duty.The complaint also did not state a cause of action on behalf of Minutolo. As to the cause of action alleging intentional infliction of emotional distress, the complaint did not allege conduct “‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community’” (Murphy v. American Home Prods. Corp., 58 NY2d 293, 303, quoting Restatement [Second] of Torts §46, comment d; see Klein v. Metropolitan Child Servs., Inc., 100 AD3d 708, 710-711; cf. Matter of Leff v. Our Lady of Mercy Academy, 150 AD3d 1239; Sawicka v. Catena, 79 AD3d 848, 849-850). The cause of action alleging negligent infliction of emotional distress also failed because the complaint did not sufficiently allege a duty to Minutolo, who was not a member of the Club, and further lacked the requisite “guarantee of genuineness” (Ornstein v. New York City Health & Hosps. Corp., 10 NY3d 1, 6; see generally Taggart v. Costabile, 131 AD3d 243, 252-253). As to the cause of action alleging prima facie tort, the plaintiffs failed to sufficiently plead the Club defendants’ “malicious intent or disinterested malevolence as the sole motive for the challenged conduct” and failed to sufficiently plead special damages (Ahmed Elkoulily, M.D., P.C. v. New York State Catholic Healthplan, Inc., 153 AD3d 768, 772; see Berland v. Chi, 142 AD3d 1121, 1122; Lancaster v. Town of E. Hampton, 54 AD3d 906, 908; cf. Diorio v. Ossining Union Free School Dist., 96 AD3d 710, 712).The complaint also did not state a cause of action to recover damages for defamation because the complained of statements were nonactionable opinions (see Brummel v. Board of Trustees of the Vil. of E. Hills N.Y., 155 AD3d 818; Silverman v. Daily News, L.P., 129 AD3d 1054, 1055). Additionally, because the plaintiffs’ proposed amendments to the complaint do not cure the defect in that cause of action, the proposed amendment was palpably insufficient (see CPLR 3025[b]; APF Mgt. Co, LLC v. Munn, 151 AD3d 668).Accordingly, the Supreme Court properly granted those branches of the defendants’ separate motions which were pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them, and properly denied the plaintiffs’ cross motion for leave to amend the complaint.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.ARS Investors II 2012-1 HVB, LLC, res, v. Trilogy, LLC ap — (Index No. 66376/14)In an action to foreclose a mortgage, the defendants appeal from an order of the Supreme Court, Westchester County (Francesca E. Connolly, J.), dated September 15, 2015. The order, insofar as appealed from, upon reargument, in effect, vacated the original determination in an order dated May 14, 2015, denying that branch of the plaintiff’s prior motion which was for summary judgment on the complaint, and thereupon, granted that branch of the plaintiff’s prior motion. By order dated April 17, 2017, the Supreme Court (David F. Everett, J.) granted the motion of the plaintiff’s successor in interest to discontinue the action against the defendant Nicola M. Plumaj.ORDERED that the appeal by the defendant Nicola M. Plumaj is dismissed as academic; and it is further,ORDERED that the order dated September 15, 2015, is affirmed insofar as appealed from by the defendant Trilogy, LLC; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.In December 2004, the defendant Trilogy, LLC (hereinafter Trilogy), obtained a loan from Hudson Valley Bank (hereinafter HVB), the plaintiff’s predecessor-in-interest, evidenced by a note in the principal sum of $1,375,000. As security for the note, Trilogy executed a mortgage in favor of HVB encumbering real property in White Plains. The defendant Nikola M. Plumaj, the managing member of Trilogy, executed a personal guaranty with respect to the loan. In March 2012, the mortgage and note were assigned to the plaintiff, ARS Investors II 2012-1 HVB, LLC. In September 2014, the plaintiff commenced this action to foreclose the mortgage against, among others, Trilogy and Plumaj (hereinafter together the appellants). The complaint alleged, among other things, that the appellants defaulted on the loan by failing to pay the outstanding principal plus interest and all other amounts due by the maturity date of April 1, 2012. The complaint also alleged that the appellants defaulted on the loan by failing to pay the real estate taxes due in connection with the mortgaged premises.Subsequently, the plaintiff moved, inter alia, for summary judgment on the complaint. In an order dated May 14, 2015, the Supreme Court, inter alia, denied that branch of the plaintiff’s motion which was for summary judgment on the complaint, finding that the appellants had raised a triable issue of fact with respect to whether HVB, the plaintiff’s predecessor-in-interest, orally agreed to extend the note past the April 1, 2012, maturity date. The order also granted that branch of the plaintiff’s motion which was to amend the caption by deleting the names “John Doe” and “Jane Doe” as defendants.Thereafter, the plaintiff moved, inter alia, for leave to reargue that branch of its motion which was for summary judgment on the complaint. The plaintiff argued, among other things, that the Supreme Court overlooked the fact that the appellants’ failure to pay the real estate taxes constituted an independent event of default under the loan documents, which entitled the plaintiff to foreclose on the mortgaged premises. In the order appealed from, the court granted the plaintiff’s motion for leave to reargue and, upon reargument, granted that branch of the plaintiff’s motion which was for summary judgment on the complaint. The court found that, upon reargument, the plaintiff met its prima facie burden for summary judgment by submitting evidence of the subject note and mortgage and proof of the appellants’ default in failing to pay the real estate taxes. The court further found that, in opposition, the appellants failed to raise a triable issue of fact.“Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” (Deutsche Bank Natl. Trust Co. v. Abdan, 131 AD3d 1001, 1001 [internal quotation marks omited]; see Hudson City Sav. Bank v. Genuth, 148 AD3d 687). Here, in support of its motion for summary judgment, the plaintiff submitted the mortgage, the unpaid note, and evidence of Trilogy’s default in failing to pay real estate taxes on the property. As correctly argued by the plaintiff, the failure to pay real estate taxes as required by the terms of the note and mortgage constituted a default event under the note and mortgage and entitled the plaintiff to foreclose on the mortgaged property (see Itamari v. Dime Sav. Bank of N.Y., Inc., 296 AD2d 381, 382; East N.Y. Sav. Bank v. Carlinde Realty Corp., 54 AD2d 574; Jamaica Sav. Bank v. Cohan, 36 AD2d 743, 743). Contrary to Trilogy’s contentions, it failed to raise a triable issue of fact in opposition to the plaintiff’s motion.Accordingly, the Supreme Court, upon reargument, properly granted that branch of the plaintiff’s motion which was for summary judgment on the complaint.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Rivera, J.P.; Miller, Nelson and Iannacci, JJ.MATTER of Alexandra R. Pryce, ap, v. John A. Pryce, res — (Index No. 25122/13)Theresa A. Mari, P.C., Hauppauge, NY, for appellant.Mintz & Gold LLP, New York, NY (Howard Miller and Lisabeth Harrison of counsel), for respondent.In a proceeding to enforce a foreign divorce decree, the petitioner appeals from (1) an order of the Supreme Court, Suffolk County (Marlene L. Budd, J.), dated September 2, 2015, and (2) an order of the same court (Cheryl A. Joseph, J.) dated March 16, 2016. The order dated September 2, 2015, in effect, granted that branch of the respondent’s cross motion which was pursuant to CPLR 3211(a)(4) to dismiss the petition. The order dated March 16, 2016, denied the petitioner’s motion for leave to renew and reargue her petition and her opposition to the respondent’s cross motion.ORDERED that the order dated September 2, 2015, is affirmed; and it is further,ORDERED that the appeal from so much of the order dated March 16, 2016, as denied that branch of the petitioner’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 March 16, 2016, is affirmed insofar as reviewed; and it is further,ORDERED that one bill of costs is awarded to the respondent.The parties were married and domiciled in Virginia until their divorce in Virginia in 2009. Their settlement agreement, incorporated by reference into the Virginia divorce decree, included terms related to the distribution of marital assets and attorneys’ fees, among other things. In 2013, the respondent moved to reinstate the parties’ divorce proceeding in the Spotsylvania County Circuit Court (hereinafter the Virginia court) to enforce certain provisions of the settlement agreement. The petitioner subsequently sought affirmative relief in that proceeding.In 2013, the petitioner commenced the instant proceeding in the Supreme Court, Suffolk County, to enforce the divorce decree. Litigation proceeded in Virginia and New York on parallel tracks, with the Virginia court gradually resolving many of the issues the petitioner raised before the Supreme Court. The respondent cross-moved in the Supreme Court, inter alia, pursuant to CPLR 3211(a)(4) to dismiss the petition. By order dated September 2, 2015, the Supreme Court, in effect, granted that branch of the cross motion. The petitioner appeals from that order and an order dated March 16, 2016, denying her subsequent motion, inter alia, for leave to renew.“Where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211(a)(4) on the ground that there is another action pending” (Scottsdale Ins. Co. v. Indemnity Ins. Corp. RRG, 110 AD3d 783, 784; see Whitney v. Whitney, 57 NY2d 731, 732). ”The critical element is that ‘both suits arise out of the same subject matter or series of alleged wrongs’” (Cherico, Cherico & Assoc. v. Midollo, 67 AD3d 622, 622, quoting White Light Prods. v. On the Scene Prods., 231 AD2d 90, 94). Here, the respondent demonstrated that the Virginia action, which was pending at the time the petitioner commenced this proceeding and remained pending at the time the September 2, 2015, order appealed from was issued (see Va. Code Ann. §20-121.1), arose from the same subject matter and alleged wrongs, and involved the same parties. Accordingly, the Supreme Court providently exercised its discretion by, in effect, granting that branch of the respondent’s cross motion which was pursuant to CPLR 3211(a)(4) to dismiss the petition (see Aurora Loan Servs., LLC v. Reid, 132 AD3d 788, 788-789; Scottsdale Ins. Co. v. Indemnity Ins. Corp. RRG, 110 AD3d at 784-785; DAIJ, Inc. v. Roth, 85 AD3d 959, 959-960).“A motion for leave to renew is addressed to the sound discretion of the court” (Matheus v. Weiss, 20 AD3d 454, 454-455). A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]; see Hodzic v. M. Cary, Inc., 151 AD3d 1034, 1034-1035). Here, the petitioner failed to submit new facts not previously offered that would change the Supreme Court’s prior determination (see Hodzic v. M. Cary, Inc., 151 AD3d at 1034-1035; Williams v. Nassau County Med. Ctr., 37 AD3d 594, 594). Accordingly, the court providently exercised its discretion in denying that branch of the petitioner’s motion which was for leave to renew certain portions of the petition and her opposition to the respondent’s cross motion.RIVERA, J.P., MILLER, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Rivera, J.P.; Miller, Nelson and Iannacci, JJ.MATTER of Abad Degraffe, ap, v. New York City Transit Authority res — (Index No. 509830/16)Sacco & Fillas, LLP, Astoria, NY (James R. Baez of counsel), for appellant.Lawrence Heisler, Brooklyn, NY (Harriet Wong of counsel), for respondents.In a proceeding for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Kings County (Dawn Jimenez-Salta, J.), dated August 5, 2016. The order denied the petition and, in effect, dismissed the proceeding.ORDERED that the order is affirmed, with costs.A party seeking to sue a public corporation generally must serve a notice of claim on the public corporation within 90 days after the claim arises (see General Municipal Law §50-e[1][a]; Public Authorities Law §1212[2]; Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 460). However, a court, in its discretion, may extend the time for a petitioner to serve a notice of claim (see General Municipal Law §50-e[5]; Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d at 465). ”In determining whether to grant a petition for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, [the] court must consider all relevant circumstances, including whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the delay would substantially prejudice the public corporation in its defense, and whether the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim” (Matter of Weaver v. City of New York, 138 AD3d 873, 874; see General Municipal Law §50-e[5]; Williams v. Nassau County Med. Ctr., 6 NY3d 531, 535; Matter of Fethallah v. New York City Police Dept., 150 AD3d 998, 999-1000; Matter of Ramos v. Board of Educ. of the City of N.Y., 148 AD3d 909, 910).“While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance” (Matter of Iacone v. Town of Hempstead, 82 AD3d 888, 888-889 [citations omitted]; see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147). ”The determination of an application for leave to serve a late notice of claim is left to the sound discretion of the court” (Matter of Vasquez v. City of Newburgh, 35 AD3d 621, 623; see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d at 465).Here, contrary to the petitioner’s contention, he failed to establish that the respondents received actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter. The mere alleged existence of certain reports and other records, without evidence of their content, is insufficient to impute actual knowledge to the respondents (see Matter of Fethallah v. New York City Police Dept., 150 AD3d at 1000; Matter of Hamilton v. City of New York, 145 AD3d 784, 785). Furthermore, the petitioner failed to provide a reasonable excuse for his failure to serve a timely notice of claim (see Matter of Bhargava v. City of New York, 130 AD3d 819, 820; Matter of Hampson v. Connetquot Cent. Sch. Dist., 114 AD3d 790, 791). Finally, the petitioner failed to present “some evidence or plausible argument” supporting a finding that the respondents were not substantially prejudiced by the delay (Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d at 466; Matter of Fethallah v. New York City Police Dept., 150 AD3d at 1001).Accordingly, the Supreme Court providently exercised its discretion in denying the petition and, in effect, dismissing the proceeding.RIVERA, J.P., MILLER, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Mastro, J.P.; Roman, Barros and Iannacci, JJ.MATTER of Gabriela T. (Anonymous). Administration for Childrens Services, ap; Angelina T. (Anonymous), res — (Proceeding No. 1)MATTER of Noelia T. (Anonymous). Administration for Childrens Services, ap; Angelina T. (Anonymous), res — (Proceeding No. 2) (Docket Nos. N-14152-15, N-14153-15)In two related neglect proceedings pursuant to Family Court Act article 10, the petitioner appeals from an order of the Family Court, Queens County (Emily Ruben, J.), dated July 17, 2017. The order, after a fact-finding hearing, and upon a finding that the petitioner failed to establish that the mother neglected the subject children, dismissed the neglect petitions.ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the petitions are reinstated, a finding is made that the mother neglected the subject children, and the matter is remitted to the Family Court, Queens County, for a dispositional hearing and the issuance of a dispositional order thereafter.In July 2015, the Administration for Children’s Services (hereinafter the petitioner) commenced related neglect proceedings against the mother, alleging that the mother neglected the subject children by, inter alia, misusing drugs. After a fact-finding hearing, the Family Court found that the petitioner failed to establish that the mother neglected the children. The court dismissed the petitions, and the petitioner appeals.“In a neglect proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving by a preponderance of the evidence that the subject child was neglected” (Matter of Geoffrey D. [Everton D.], 158 AD3d 758, 759; see Family Ct Act §1046[b][i]). Unlike other forms of neglect, which require a showing that a child’s well-being has been impaired or is in imminent danger of becoming impaired, “proof that a person repeatedly misuses a drug… , to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of… such person is a neglected child” unless the parent is “voluntarily and regularly participating in a recognized rehabilitative program” (Family Ct Act §1046[a][iii]; see Matter of Isiah L. [Terry C.], 154 AD3d 697, 698).Here, the petitioner presented a prima facie case of neglect based on evidence that the mother had regularly used marijuana, which she had been advised could worsen her preexisting mental health condition (see Matter of Isiah L. [Terry C.], 154 AD3d at 698-699; Matter of Nyheem E. [Jamila G.], 134 AD3d 517, 519; Matter of Ishaq B. [Lea B.], 121 AD3d 889, 889-890; Matter of Ayana Jean L., 23 AD3d 472, 473). Therefore, neither actual impairment of the children’s physical, mental, or emotional condition, nor specific risk of impairment, needed to be shown to establish that the children were neglected (see Matter of Isiah L. [Terry C.], 154 AD3d at 699; Matter of Vita C. [Oksana C.], 138 AD3d 739, 740). Since the mother failed to establish that she was voluntarily and regularly participating in a drug rehabilitative program, she failed to rebut the petitioner’s prima facie evidence of neglect (see Family Ct Act §1046[a][iii]; Matter of Nyheem E. [Jamila G.], 134 AD3d at 519).In light of our determination, we need not address the petitioner’s remaining contentions.Accordingly, we must reverse the order, reinstate the petitions, make a finding that the mother neglected the subject children, and remit the matter to the Family Court, Queens County, for a dispositional hearing and the issuance of a dispositional order thereafter.MASTRO, J.P., ROMAN, BARROS and IANNACCI, JJ., concur.By Rivera, J.P.; Roman, Duffy and Connolly, JJ.Heidi C. Gregg, ap, v. M&T Bank Corporation, res — (Index No. 17697/10)In an action for a judgment declaring that the plaintiff is entitled to recover, inter alia, one half of the proceeds from the sale of certain real property, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered August 7, 2015. The judgment, upon an order of the same court entered December 3, 2012, denying, in part, that branch of the plaintiff’s motion which was for summary judgment declaring, in effect, that she is entitled to one tenth of the proceeds from the sale of the subject property, and the entire principal on her mortgage, plus interest from May 2, 2006, until August 26, 2010, and reasonable costs, including an attorney’s fee and disbursements, incurred in connection with collecting the indebtedness secured by her mortgage, and granting that branch of the defendant’s cross motion which was for summary judgment declaring it is entitled to receive the sum of $228,255.17 from the funds held in escrow, and upon an order of the same court entered July 10, 2014, granting the defendant’s cross motion to resettle the order entered December 3, 2012, in effect, declared that the plaintiff is entitled to recover the principal sum of only $25,255.17 and the defendant is entitled to recover the principal sum of $228,361.69.ORDERED that the judgment is reversed, on the law, with costs, that branch of the plaintiff’s motion which was for summary judgment declaring, in effect, that she is entitled to one tenth of the proceeds from the sale of the subject property, and the entire principal on her mortgage, plus interest from May 2, 2006, until August 26, 2010, and reasonable costs, including an attorney’s fee and disbursements, incurred in connection with collecting the indebtedness secured by her mortgage is granted in its entirety, that branch of the defendant’s cross motion which was for summary judgment declaring it is entitled to receive the sum of $228,255.17 from the funds held in escrow is granted to the extent of declaring that the defendant is entitled to receive such sum, less the amount the plaintiff is due, and is otherwise denied, the defendant’s cross motion to resettle the order entered December 3, 2012, is denied, the orders entered December 3, 2012, and July 10, 2014, are modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.In 1999, Marie Graham deeded a property located on the corner of Horace Place and Glen Cove Avenue in Sea Cliff to her son Newell Graham. In 2000, Marie commenced an action against Newell regarding the property. In 2002, Marie and Newell entered into a stipulation of settlement in open court settling that action (hereinafter the 2002 settlement). Pursuant to the 2002 settlement, Marie agreed to discontinue the action against Newell in return for Newell agreeing to sell the property and give one half of the net proceeds from the sale to his sister, Heidi C. Gregg, the plaintiff in the instant action. The 2002 settlement further provided that “[i]t is the contemplation of the parties that Newell Graham will cause no liens or encumbrances to presently exist or which may hereinafter may exist, contemplating and until the time of the sale of the property.”At some point thereafter, the property was divided into two parcels—a residential parcel on 6 Horace Place and a commercial parcel on 277 Glen Cove Avenue. The instant action involves a dispute over the proceeds from the eventual sale of the residential parcel.By deed dated April 2, 2006 (hereinafter the 2006 deed), Newell conveyed title to the residential parcel to himself and Heidi as tenants in common, granting Heidi an undivided one-tenth interest and himself an undivided nine-tenths interest. On May 2, 2006, Newell sold the commercial parcel and gave Heidi one half of the proceeds. Heidi then loaned Newell $50,000 from her proceeds. Newell executed a note in the sum of $50,000 in favor of Heidi. The note was secured by a mortgage on the residential parcel (hereinafter Heidi’s mortgage). As relevant here, Heidi’s mortgage stated that the principal of $50,000 was to be “paid with interest thereon to be computed from the 2nd day of May 2006, at the rate of six (6 percent) per centum per annum” and that “[t]he entire principal balance, together with all accrued interest shall be due and payable upon the sale of the subject premises.” The mortgage also provided that in the event it became necessary “to collect the indebtedness secured [by the mortgage] through legal proceedings, then there shall be added to the principal of the Mortgage indebtedness all reasonable costs incurred therewith, including, but not limited to[,] attorney’s fees and disbursements.”Heidi’s mortgage was recorded in the Nassau County Clerk’s Office on July 19, 2006. The 2006 deed was recorded in the Nassau County Clerk’s Office on August 16, 2006.On August 24, 2006, Newell obtained a home equity line of credit in the amount of $250,000 from Manufacturers and Traders Trust Company. The line of credit was secured by a mortgage on the residential parcel (hereinafter the M&T mortgage). The M&T mortgage was recorded in the Nassau County Clerk’s Office on October 16, 2006. The defendant in the instant action, M&T Bank Corporation (hereinafter M&T), is the successor by merger to Manufacturers and Traders Trust Company.In or about May 2010, Newell and Heidi entered into a contract to sell the residential parcel for $390,000. According to Heidi, when the title work was performed for this purchase, she learned for the first time that Newell had encumbered the property with the M&T mortgage.A disagreement ensued between Heidi and M&T over the anticipated net proceeds of the sale, including the legal priority of their respective mortgages and the extent of Heidi’s ownership and claims to the proceeds of the sale based on the 2002 settlement. On August 26, 2010, Heidi and M&T entered into an escrow agreement in which they agreed to discharge their respective liens so that marketable title could pass to the prospective purchasers of the residential parcel and to place a portion of the proceeds of the sale in escrow pending judicial resolution of their competing claims. The escrow agreement, also executed by Newell’s attorney, stated that Newell “joins in this agreement in his capacity as co-owner… for the purpose of acknowledging that (a) the liens asserted by the Parties are valid, and (b) he is not entitled to any share of the proceeds of sale.”The closing took place on August 26, 2010. At the closing, Heidi and M&T each received $32,726 and the remainder of the proceeds of the sale was placed in escrow (hereinafter the escrow funds).Heidi subsequently commenced this action against M&T. In her first cause of action, she sought a judgment declaring that she is entitled to one half of the gross proceeds of the sale, less real estate commissions, transfer taxes, and attorney’s fees, based on the 2002 settlement. In her second cause of action, Heidi sought a judgment declaring that she is entitled to a further distribution from the escrow funds equal to the $50,000 principal owed on her mortgage, plus interest on the entire principal at a rate of 6 percent per annum from May 2, 2006, and reasonable collection costs, including an attorney’s fee, less the $32,726 she already received at the August 26, 2010, closing.M&T counterclaimed, alleging that the outstanding principal balance due on the M&T mortgage is $247,050.67, together with interest, late charges, fees, expenses, and an attorney’s fee. M&T sought a judgment declaring that it is entitled to receive nine tenths of the escrow funds, amounting to the sum of $228,255.17. In the alternative, if Heidi proved the validity and priority of her mortgage, M&T sought a judgment declaring that it receive nine tenths of the escrow funds, less the amount the Supreme Court determined Heidi is due pursuant to her mortgage.Heidi moved for summary judgment declaring, in effect, that from the escrow funds, she is entitled to one tenth of the proceeds from the sale, the entire $50,000 principal owed on her mortgage, plus interest on the entire principal at a rate of 6 percent per annum from May 2, 2006, reasonable costs, including an attorney’s fee and disbursements incurred in connection with collecting the indebtedness secured by her mortgage, plus the amount claimed to be owed to her under the 2002 settlement. M&T cross-moved for summary judgment declaring that from the escrow funds, it is entitled to receive the sum of $228,255.17 or, in the alternative, a sum equal to nine tenths of the escrow funds, less the amount the Supreme Court determines Heidi is entitled to pursuant to her mortgage.In an order entered December 3, 2012, the Supreme Court determined that Heidi was entitled to receive the sum of $40,000 and that M&T was entitled to receive the sum of $228,255.17 from the escrow funds. M&T subsequently cross-moved to resettle the order entered December 3, 2012, on the ground that it awarded more money to the parties than was being held in escrow. M&T asked the court to resettle the order to provide that M&T was entitled to receive the sum of $228,255.17 and that Heidi was entitled to receive the remaining $25,361.69 held in escrow. In an order entered July 10, 2014, the court granted M&T’s cross motion to resettle the order, and (mistakenly) stated that M&T was entitled to receive the sum of $228,361.69.On August 7, 2015, a judgment was entered, inter alia, directing the escrow agent to pay M&T the sum of $228,361.69 from the escrow funds and to pay the remaining sum of $25,255.17 to Heidi. Heidi appeals from the judgment.“The New York Recording Act (Real Property Law §290 et seq.), inter alia, protects a good faith purchaser for value from an unrecorded interest in a property, provided such a purchaser’s interest is first to be duly recorded (see e.g. Real Property Law §§291, 294). The status of good faith purchaser for value cannot be maintained by a purchaser with either notice or knowledge of a prior interest or equity in the property, or one with knowledge of facts that would lead a reasonably prudent purchaser to make inquiries concerning such” (Yen-Te Chen v. Geranium Dev. Corp., 243 AD2d 708, 709; see Vanderbilt Brookland, LLC v. Vanderbilt Myrtle, Inc., 147 AD3d 1106, 1109-1110). ”The recording of a transaction involving real property provides potential subsequent purchasers [and encumbrancers] with notice of previous conveyances and encumbrances that might affect their interests. If the [encumbrancer] fails to use due diligence in examining the title, he or she is chargeable, as a matter of law, with notice of the facts which a proper inquiry would have disclosed” (Congregation Beth Medrosh of Monsey, Inc. v. Rolling Acres Chestnut Ridge, LLC, 101 AD3d 797, 799 [internal quotation marks and citations omitted]). The encumbrancer “must be presumed to have investigated the title, and to have examined every deed or instrument properly recorded, and to have known every fact disclosed or to which an inquiry suggested by the record would have led” (Fairmont Funding v. Stefansky, 301 AD2d 562, 564).Here, the Supreme Court erred in failing to award Heidi one tenth of the proceeds from the sale of the property, the entire principal of her mortgage, plus interest, and reasonable collection costs, including an attorney’s fee and disbursements incurred in collecting the indebtedness secured by the mortgage. Heidi demonstrated that her mortgage and the 2006 deed were duly recorded prior to M&T’s mortgage. Therefore, Heidi established that M&T is chargeable with notice of these prior interests.In addition, Heidi’s mortgage specifies that she is entitled to interest at a rate of 6 percent per annum, to be added to, and paid with, the principal of the mortgage. The mortgage states that interest would accrue from May 2, 2006, until the date of sale, at which point the entire interest and principal would be due. On the date of sale, Heidi consented to the proceeds being placed in a noninterest bearing account. Accordingly, the amount of interest to be added to the $50,000 principal of Heidi’s mortgage is to be computed at a rate of 6 percent per annum, from May 2, 2006, to August 26, 2010, the day of the sale.With respect to reasonable collection costs, Heidi’s mortgage provides that “[i]n the event that it shall become necessary to… collect the indebtedness secured [by the mortgage] through legal proceedings, then there shall be added to the principal of the Mortgage indebtedness all reasonable costs incurred therewith, including, but not limited to attorney’s fees and disbursements.” Since the instant action is a legal proceeding to collect the indebtedness secured by Heidi’s mortgage, Heidi established that she is entitled to all reasonable costs incurred therewith, including, but not limited to, an attorney’s fee and disbursements.However, contrary to Heidi’s contention, the Supreme Court properly determined that she is not entitled to any of the escrow funds based on the 2002 settlement. The 2002 settlement did not grant her a legal or equitable interest in the residential parcel and had no impact on the title. Moreover, there was nothing on the face of the 2006 deed or Heidi’s mortgage suggesting the need to investigate the existence of any additional conveyances or encumbrances that might have affected M&T’s interests.Based on the foregoing, we must remit the matter to the Supreme Court, Nassau County, for further proceedings consistent herewith, including a determination of the amount due to Heidi in interest, and reasonable costs, including a reasonable attorney’s fee and disbursements, incurred in connection with collecting the indebtedness secured by Heidi’s mortgage.RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.By Mastro, J.P.; Rivera, Austin and Lasalle, JJ.MATTER of Erwin Jackson, pet, v. Randy Sue Marber, etc. res — Erwin Jackson, Elmira, NY, petitioner pro se.Eric T. Schneiderman, Attorney General, New York, NY (Carly Weinreb of counsel), for respondents Randy Sue Marber and Jerald S. Carter.Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and Monica M.C. Leiter of counsel), respondent pro se.Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the enforcement of a judgment of conviction rendered July 30, 2008, in a criminal action entitled People v. Jackson, commenced in the County Court, Nassau County, under Indictment No. 2826/05, and any orders issued in connection with the indictment, and application by the petitioner for poor person relief.ORDERED that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied; and it is further,ADJUDGED that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.“Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—actsor threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v. Goldman, 71 NY2d 564, 569; see Matter of Rush v. Mordue, 68 NY2d 348, 352). The petitioner has failed to demonstrate a clear legal right to the relief sought.MASTRO, J.P., RIVERA, AUSTIN and LASALLE, JJ., concur.By Mastro, J.P.; Sgroi, Lasalle and Connolly, JJ.PEOPLE, etc., res, v. David Mairena, ap — (Ind. No. 3078/13)Motion by the appellant for leave to reargue an appeal from a judgment of the Supreme Court, Kings County (Guy James Mangano, Jr., J.), rendered July 24, 2015, convicting him of manslaughter in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence, which was determined by decision and order of this Court dated May 31, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted, and, upon reargument, the decision and order of this Court dated May 31, 2017 (People v. Mairena, 150 AD3d 1267), is recalled and vacated, and the following decision and order is substituted therefor:Paul Skip Laisure, New York, NY (Lynn W. L. Fahey and Michael Arthus of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guy James Mangano, Jr., J.), rendered July 24, 2015, convicting him of manslaughter in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s challenge to the sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2]; People v. Hawkins, 11 NY3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), the defendant’s contention that the People failed to disprove his justification defense beyond a reasonable doubt is without merit. The evidence adduced at trial established that the defendant stabbed the decedent with a box cutter, which caused the decedent to bleed to death. Though the decedent was armed with a machete earlier in the parties’ altercation, he was no longer carrying the machete at the time the defendant stabbed him. Moreover, there was no testimony that the defendant saw the decedent brandishing the machete immediately before he approached the decedent to stab him. Rather, the evidence indicates that the decedent had walked away from the defendant after their initial altercation, that the decedent had abandoned his machete at that point, and that the defendant could have retreated from the situation by also walking away. Viewing this evidence in the light most favorable to the prosecution (see id.), we find that it was legally sufficient to establish the elements of manslaughter in the first degree and to disprove the defense of justification beyond a reasonable doubt (see People v. Clarke, 11 AD3d 554; People v. Littlejohn, 307 AD2d 976, 976; People v. Hall, 220 AD2d 615). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 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).Contrary to the defendant’s contention, the Supreme Court’s charge, when viewed as a whole, properly instructed the jury as to the defense of justification, and was a correct statement of the law (see People v. Fields, 87 NY2d 821, 823; People v. Bogan, 78 AD3d 855, 855-856). Moreover, although it was error for the court to inform the parties, prior to summations, that it would instruct the jury on a specific instrumentality of death in its charge of manslaughter in the first degree, and then to subsequently remove that language from its charge following summations, the evidence of the defendant’s guilt was overwhelming and there is no reasonable possibility under the circumstances of this case that this error contributed to the defendant’s conviction. Accordingly, the error was harmless (see People v. Miller, 70 NY2d 903, 907; People v. Gonzalez-Alvarez, 129 AD3d 647, 648; People v. DeBaptiste, 237 AD2d 298; People v. Montgomery, 116 AD2d 669, 671). We note that defense counsel presented a cogent, albeit ultimately unavailing, argument regarding the defendant’s justification defense in his summation, which was not undermined by the court’s subsequent instruction (cf. People v. Layer, 199 AD2d 564, 565-566).Finally, the defendant’s contention that the prosecutor’s summation remarks constituted reversible error because he allegedly vouched for the credibility of witnesses, made inflammatory comments, misled the jury about the evidence, and denigrated the defense is unpreserved for appellate review. The defendant made only a general objection, failed to request curative instructions, and did not timely move for a mistrial on this ground (see CPL 470.05[2]; People v. Balls, 69 NY2d 641, 642; People v. Salnave, 41 AD3d 872, 874). In any event, the comments alleged to be prejudicial were either fair comment on the evidence (see People v. Ashwal, 39 NY2d 105), responsive to arguments and theories presented in the defense summation (see People v. Galloway, 54 NY2d 396), or harmless in light of the overwhelming evidence of the defendant’s guilt (see People v. Crimmins, 36 NY2d 230, 241-242; People v. Hill, 286 AD2d 777, 778). Moreover, the prosecutor’s summation comments that the defendant’s actions were unjustified and that the People’s witnesses did not conspire against him did not impermissibly shift the burden of proof. The challenged remarks were responsive to the defense counsel’s summation (see People v. Moore, 29 AD3d 825, 825-826).MASTRO, J.P., SGROI, LASALLE and CONNOLLY, JJ., concur.By Dillon, J.P.; Leventhal, Connolly and Brathwaite Nelson, JJ.D&S Restoration, Inc., ap, v. Wenger Construction Co., Inc., res — (Index No. 601894/16)Sullivan, P.C., New York, NY (Peter Sullivan of counsel), for appellant.Milber Makris Plousadis & Seiden, Woodbury, NY (Joseph J. Cooke of counsel), for respondent.In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Edward A. Maron, J.), entered October 31, 2016. The order granted the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint.ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant’s motion which was to dismiss the breach of contract cause of action, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.The defendant was the general contractor on a school construction project with the New York City School Construction Authority (hereinafter the SCA). In March 2011, the defendant subcontracted with the plaintiff to remove certain material on the project, including material believed to contain asbestos or PCB. The subcontract identified the price that would be paid for the removal of the specified materials, and also provided that materials that did not contain asbestos or PCB would be deducted from the scope of the work with a credit change order. In other words, the plaintiff would not be paid for removal of those materials and the subcontract price would be reduced accordingly. The subcontract further provided that payment from the SCA to the defendant was a condition precedent to payment by the defendant to the plaintiff, and that the final payment amount was subject to any credit changes as determined by the SCA. The subcontract also contained a provision that no action shall lie by the plaintiff against the defendant unless commenced within one year after substantial completion of the plaintiff’s work.The plaintiff completed its work on the project in June 2012 and submitted an invoice at that time to the defendant with its proposed credit changes. The plaintiff commenced this action in March 2016 alleging that the defendant had not paid the plaintiff the amount due under the subcontract. The complaint alleged causes of action to recover damages for breach of contract and unjust enrichment, and for an account stated. The defendant moved to dismiss the complaint pursuant to CPLR 3211(a), inter alia, on the ground that the action was time-barred because it was not commenced within one year of the date of substantial completion of the plaintiff’s work. In opposition to the motion, the plaintiff submitted evidence that the defendant had delayed payment to the plaintiff on the ground that it was waiting for the SCA to confirm the credit changes, and that the defendant did not convey to the plaintiff the amount agreed upon by the SCA until March 2014. The plaintiff additionally submitted evidence that the final change order for the asbestos work performed by the plaintiff was not signed by the SCA until June 2016. The Supreme Court granted the motion to dismiss the complaint. The plaintiff appeals.“[A]n agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to commence an action is enforceable” (John J. Kassner & Co. v. City of New York, 46 NY2d 544, 551 [emphasis added]; see CPLR 201; Executive Plaza, LLC v. Peerless Ins. Co., 22 NY3d 511, 518). ”‘[T]he period of time within which an action must be brought… should be fair and reasonable, in view of the circumstances of each particular case … The circumstances, not the time, must be the determining factor’” (Executive Plaza, LLC v. Peerless Ins. Co., 22 NY3d at 519, quoting Continental Leather Co. v. Liverpool, Brazil & Riv. Plate Steam Nav. Co., 259 NY 621, 622-623 [Crane, J., dissenting]).There is nothing inherently unreasonable about the one-year period of limitation, to which the parties here freely agreed (see Executive Plaza, LLC v. Peerless Ins. Co., 22 NY3d at 518; Blitman Constr. Corp. v. Insurance Co. of N. Am., 66 NY2d 820; Sapinkopf v. Cunard S. S. Co., Ltd., 254 NY 111). ”The problem with the limitation period in this case is not its duration, but its accrual date” (Executive Plaza, LLC v. Peerless Ins. Co., 22 NY3d at 518). It is neither fair nor reasonable to require that an action be commenced within one year from the date of the plaintiff’s substantial completion of its work on the project, while imposing a condition precedent to the action that was not within the plaintiff’s control and which was not met within the limitations period. ”A ‘limitation period’ that expires before suit can be brought is not really a limitation period at all, but simply a nullification of the claim” (id. at 518). The limitation period in the subcontract conflicts with the conditions precedent to payment becoming due to the plaintiff, which, under the circumstances of this case, acted to nullify any claim the plaintiff might have for breach of the subcontract. Therefore, interpreting the subcontract against the defendant, which drafted the agreement (see Matter of Cowen & Co. v. Anderson, 76 NY2d 318, 323; Jacobson v. Sassower, 66 NY2d 991, 993; 151 W. Assoc. v. Printsiples Fabric Corp., 61 NY2d 732, 734), we find that the one-year limitation period is unenforceable under the circumstances here (see JC Ryan EBCO/H&G, LLC v. Lipsky Enters., Inc., 78 AD3d 788, 789-790; Certified Fence Corp. v. Felix Indus., 260 AD2d 338, 339). Accordingly, the Supreme Court should not have granted that branch of the defendant’s motion which was to dismiss the breach of contract cause of action as time-barred.However, the dismissal of the causes of action to recover damages for unjust enrichment and for an account stated was proper since the damages the plaintiff seeks to recover are pursuant to an existing and valid contract (see Corsello v. Verizon N.Y., Inc., 18 NY3d 777, 790; Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 NY2d 382, 388; Simplex Grinnell v. Ultimate Realty, LLC, 38 AD3d 600; Erdman Anthony & Assoc. v. Barkstrom, 298 AD2d 981, 982).The parties’ remaining contentions are either without merit or need not be addressed in light of our determination.DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Francisco Acevedo, ap — (Ind. No. 1585/09)Stewart A. McMillan, Larchmont, NY, for appellant, and appellant pro se.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco and Steven A. Bender of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Westchester County (Barbara G. Zambelli, J.), rendered January 17, 2012, convicting him of murder in the second degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress identification testimony and DNA evidence.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, the County Court properly denied that branch of his omnibus motion which was to suppress DNA evidence derived from a buccal swab (see People v. Hobson, 111 AD3d 958, 959; cf. People v. Adams, 120 AD3d 1253, 1254).The County Court also properly denied that branch of the defendant’s omnibus motion which was to sever the counts in the indictment, since the nature of the proof for each of the offenses was material and admissible as evidence upon the trial of the other counts in the indictment (see CPL 200.20[2][b]; People v. Bongarzone, 69 NY2d 892, 895). As the offenses were properly joined in one indictment from the outset, the court lacked the statutory authority to sever them (see CPL 200.20[3]; People v. Bongarzone, 69 NY2d at 895; People v. Bonilla, 127 AD3d 985).The County Court providently exercised its discretion under CPL 60.42 in precluding evidence concerning a victim’s sexual history (see People v. Mandel, 48 NY2d 952, 954). Such evidence was not admissible under CPL 60.42(2), because there was no evidence that the victim had ever been convicted of prostitution (see People v. Halmond, 52 AD3d 1278; People v. Smith, 27 AD3d 242, 243). The evidence also was not admissible under CPL 60.42(5), because the defendant’s offer of proof was inadequate (see People v. Mitchell, 10 AD3d 554, 555; People v. Nunez, 9 AD3d 471, 472; People v. Baldwin, 211 AD2d 638).The defendant’s challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2]; People v. Hawkins, 11 NY3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilty was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).The defendant’s remaining contentions, including those raised in his pro se supplemental brief, are without merit.CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Dillon, J.P.; Miller, Barros and Christopher, JJ.PEOPLE, etc., res, v. Marlon Baptiste, ap — (Ind. No. 2071/12)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Michael A. Gary, J.), rendered September 27, 2013, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.At the grand jury proceeding which resulted in the defendant’s indictment, the complainant testified that the defendant assaulted him with a box cutter or knife outside the home of the defendant’s girlfriend. Exercising his right to testify before the grand jury (see CPL 190.50[5]), the defendant testified that the complainant was the initial aggressor by cutting him on the neck with a knife, and that he caused the complainant’s injuries in self-defense. The defendant requested that the grand jury hear from three eyewitnesses, including his girlfriend and her sister (hereinafter the sister). The defendant informed the grand jury that his girlfriend may have witnessed the altercation from a window, and that the sister saw most or all of the incident while she was signing for a package outside the home.The prosecutor proffered the defendant’s proposed witnesses to the grand jury, which decided to hear from the defendant’s girlfriend, but declined to hear from the two other witnesses. The prosecutor’s proffer of the sister as a witness referenced the defendant’s testimony that the sister was present outside the home signing for a package. The grand jury was charged on the defense of justification and thereafter indicted the defendant on various assault charges. The Supreme Court denied that branch of the defendant’s omnibus motion which was to dismiss the indictment pursuant to CPL 210.20 based on the failure of the grand jury to hear from the sister.At the trial, the sister testified during the defense case that she witnessed the entire event, that the complainant was the initial aggressor, and that the defendant disarmed the complainant during the altercation. She further testified that she had spoken with the grand jury prosecutor, but did not remember his questions or her answers. After both sides rested, the defendant renewed his motion to dismiss the indictment, arguing that the prosecutor’s failure to inform the grand jury that the sister was the sole eyewitness to the entire event, and would testify that the complainant was the initial aggressor, impaired the integrity of the proceeding. The Supreme Court denied the defendant’s renewed motion. The jury thereafter convicted the defendant of assault in the second degree.An indictment should be dismissed where the grand jury proceeding is defective such that it “fails to conform to the requirements of article one hundred ninety [of the Criminal Procedure Law] to such degree that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35[5]; see CPL 210.20[1][c]; People v. Thompson, 22 NY3d 687, 699). ”The ‘exceptional remedy of dismissal’ is available in ‘rare cases’ of prosecutorial misconduct upon a showing that, in the absence of the complained-of misconduct, the grand jury might have decided not to indict the defendant” (People v. Thompson, 22 NY3d at 699, quoting People v. Huston, 88 NY2d 400, 409; see People v. Darby, 75 NY2d 449, 455; People v. Jackson, 143 AD3d 404). In general, this demanding test is only met where the prosecutor engaged in an overall pattern of bias and misconduct that is pervasive and typically willful (see People v. Thompson, 22 NY3d at 699; People v. Huston, 88 NY2d at 409-410). ”[T]he statutory test, which does not turn on mere flaw, error or skewing… is very precise and very high” (People v. Darby, 75 NY2d at 455).Pursuant to CPL 190.50, a defendant may request the grand jury to cause a person designated by him to be called as a witness in a grand jury proceeding. ”The grand jury may as a matter of discretion grant such request and cause such witness to be called” (CPL 190.50[6]). The grand jury has great discretion in determining what evidence to hear and has the absolute right to reject the defendant’s request that it hear from a witness (see People v. Johnson, 282 AD2d 309, 310).Here, the Supreme Court properly determined that the prosecutor’s proffer of the sister as a witness did not impair the integrity of the grand jury proceeding and did not result in possible prejudice to the defendant. The defendant informed the grand jury of the relevance of the sister as a witness, and the grand jury “could have requested the witness’s testimony if it had wished to do so” (People v. Johnson, 289 AD2d 1008, 1009). The prosecutor’s proffer made clear that the grand jury had the discretion to request the sister’s testimony (see People v. Thompson, 22 NY3d at 699). The prosecutor’s proffer of the sister “neither suppressed defendant’s request to call the witness nor stripped the grand jury of its discretion to grant or deny that request” (id. at 699; see People v. Johnson, 282 AD2d at 311; cf. People v. Hill, 5 NY3d 772, 773). Further, the defendant presented his justification defense to the grand jury, and a justification charge was given (see People v. Alicea, 276 AD2d 915, 916; cf. People v. Samuels, 12 AD3d 695, 698-699). Accordingly, the court properly denied the defendant’s renewed motion to dismiss the indictment.DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Roman, Sgroi and Cohen, JJ.PEOPLE, etc., res, v. Christopher Hinds, ap — (Ind. No. 1472/13)Paul Skip Laisure, New York, NY (Sean H. Murray of counsel), 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 (Ronald D. Hollie, J.), rendered June 30, 2014, convicting him of robbery in the second degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial before a different Justice.After a jury trial, the defendant was convicted of robbery in the second degree and criminal possession of stolen property in the fifth degree. One of the defendant’s contentions on appeal is that he was deprived of his right to a fair trial by the Supreme Court’s unwarranted and pervasive interference in the examination of the witnesses at trial (see People v. Robinson, 151 AD3d 758; People v. Davis, 147 AD3d 1077, 1079).“While ‘neither the nature of our adversary system nor the constitutional requirement of a fair trial preclude a trial court from assuming an active role in the truth-seeking process,’ the court’s discretion in this area is not unfettered” (People v. Robinson, 151 AD3d at 759, quoting People v. Jamison, 47 NY2d 882, 883). The principle restraining the court’s discretion is that a trial judge’s “function is to protect the record, not to make it” (People v. Yut Wai Tom, 53 NY2d 44, 58). Indeed, when the trial judge interjects often and indulges in an extended questioning of witnesses, even where those questions would be proper if they came from trial counsel, the trial judge’s participation presents significant risks of prejudicial unfairness (see People v. Robinson, 151 AD3d 758; People v. Davis, 147 AD3d at 1079). Accordingly, while a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on “the function or appearance of an advocate” (People v. Arnold, 98 NY2d 63, 67; see People v. Davis, 147 AD3d at 1079).Here, the Supreme Court interjected itself into the questioning of witnesses more than 50 times, asking more than 400 questions. The court elicited step-by-step details from several officers regarding their observations and actions during their apprehension of the defendant. In addition, the court elicited and assisted in developing facts damaging to the defense on direct examination of the People’s witnesses, bolstering the witnesses’ credibility. The court also interrupted cross-examination and generally created the impression that it was an advocate on behalf of the People. Under these circumstances, the court’s improper interference with the conduct of the trial deprived the defendant of a fair trial, and a new trial is warranted (see People v. Robinson, 151 AD3d 758; People v. Davis, 147 AD3d at 1079).Since there must be a new trial, we need not reach the defendant’s remaining contention.MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.By Rivera, J.P.; Miller, Nelson and Iannacci, JJ.City National Bank, etc., res, v. Foundry Development Group, LLC appellants def — (Index No. 11406/09)In an action to recover on three promissory notes and a personal guaranty, the defendants Foundry Development Group, LLC, Herman Freund, and Albert Weiss appeal from a judgment of the Supreme Court, Orange County (Robert A. Onofry, J.), dated October 5, 2015. The judgment, upon an order of the same court dated September 3, 2013, granting that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability against the appellants, and, upon an inquest, is in favor of the plaintiff and against them in the principal sum of $3,668,947.74.ORDERED that the judgment is affirmed, with costs.In October 2009, the plaintiff’s predecessor-in-interest, Imperial Capital Bank (hereinafter Imperial), commenced this action to recover on three promissory notes and a personal guaranty executed by the defendants Herman Freund and Albert Weiss, after the defendant Foundry Development Group, LLC (hereinafter Foundry), defaulted in paying the principal and interest due on September 1, 2009, the maturity date of the notes. The caption was later amended to substitute the plaintiff for Imperial, after the subject loans were acquired by the plaintiff. The defendants Foundry, Freund, and Weiss (hereinafter collectively the defendants), moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, and the plaintiff cross-moved, among other things, for summary judgment on the issue of liability insofar as asserted against the defendants. In an order dated September 3, 2013, the Supreme Court, inter alia, denied that branch of the defendants’ motion and granted that branch of the plaintiff’s cross motion. On a prior appeal, this Court affirmed the order dated September 3, 2013, insofar as appealed from (see City Natl. Bank v. Foundry Dev. Group, LLC, 129 AD3d 1011). After an inquest on damages, the court entered judgment in favor of the plaintiff and against the defendants in the principal sum of $3,668,947.74. The defendants appeal from the judgment.Contrary to the defendants’ contention, the Supreme Court properly determined that certain exhibits presented at the inquest were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]). ”‘A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures’” (Cadlerock Joint Venture, L.P. v. Trombley, 150 AD3d 957, 959, quoting Citibank, N.A. v. Cabrera, 130 AD3d 861, 861). Here, the plaintiff’s witness testified that she was personally familiar with the record keeping practices and procedures of the plaintiff and Imperial, and, thus, the plaintiff laid a proper foundation for the admission of the records (see Yellow Book of N.Y., L.P. v. Cataldo, 81 AD3d 638, 639-640).The defendants’ remaining contentions are without merit.RIVERA, J.P., MILLER, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Scheinkman, P.J.; Rivera, Austin, Cohen and Barros, JJ.PEOPLE, etc., res, v. William L. Johnson, ap — (Ind. No. 501/14)Paul Skip Laisure, New York, NY, for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Max Lubin on the memorandum), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Deborah Stevens Modica, J.), imposed March 24, 2015, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The defendant’s purported waiver of his right to appeal was invalid (see People v. Bradshaw, 18 NY3d 257, 265; People v. Rennick, 123 AD3d 1146; People v. Reyes, 121 AD3d 820; People v. Coleman, 116 AD3d 708) and, thus, does not preclude review of his excessive sentence claim. However, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., RIVERA, AUSTIN, COHEN and BARROS, JJ., concur.By Dillon, J.P.; Leventhal, Connolly and Brathwaite Nelson, JJ.Bernardino Esposito, res, v. Elissa Weiner, etc. def, Andrew L. Crabtree, etc., et al., ap — (Index No. 7224/14)Isolina Esposito, Bronx, NY (Mitchell L. Perry of counsel), for respondent.In an action, inter alia, for the return of funds placed in escrow, the defendants Andrew L. Crabtree and Andrew L. Crabtree, P.C., appeal from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered July 9, 2015. The order, insofar as appealed from, denied those branches of their motion which were pursuant to CPLR 3211(a) to dismiss the complaint and cross claims insofar as asserted against them, and for an award of an attorney’s fee and expenses.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff, Bernardino Esposito, entered into a stock purchase agreement with the defendants Robert Weiner and Richard Weiner, shareholders of Reniew Properties Corp. (hereinafter Reniew), whereby Esposito was to purchase “all interest” in Reniew, including its stock and real property located in Mount Vernon. In connection with the stock purchase agreement, the parties entered into an escrow agreement whereby Esposito deposited $50,000 with the appointed escrow agent. That escrow agent was Andrew L. Crabtree, P.C. (hereinafter the P.C.), the professional corporation of the attorney, Andrew L. Crabtree (hereinafter together the Crabtree defendants), who represented the sellers in the transaction. Ultimately, the purchase did not take place.In 2003, Elissa Weiner, a/k/a Elissa Davis (hereinafter Elissa Weiner), a defendant in the instant action, commenced an action for a divorce and ancillary relief (hereinafter the matrimonial action) against Richard Weiner. Elissa Weiner moved in the matrimonial action, inter alia, for the release and distribution of funds held in escrow (see Weiner v. Weiner, 107 AD3d 976, 977). The Crabtree defendants submitted an affirmation in relation to that motion. In an order dated July 1, 2011, the Supreme Court, among other things, directed the P.C. to release the escrow funds and distribute the funds to Elissa Weiner and to the P.C., as payment for the P.C.’s prior representation of Richard Weiner and Reniew. Subsequently, in an amended order dated January 11, 2012, the court denied Esposito’s motion, in effect, to vacate that portion of its prior order. This Court reversed the amended order, and granted Esposito’s motion, in effect, to vacate so much of the prior order as directed the P.C. to release and distribute certain escrow funds (see id. at 977). This Court held that since Esposito, a nonparty in the matrimonial action, was not properly summoned before the Supreme Court prior to Elissa Weiner seeking relief against him, the court had no power to award such relief (see id.).Esposito commenced this action asserting, inter alia, causes of action against the Crabtree defendants relating to their handling of the escrow funds. The Crabtree defendants moved, among other things, pursuant to CPLR 3211(a) to dismiss the complaint and cross claims insofar as asserted against them, and for an award of an attorney’s fee and expenses. In an order entered July 9, 2015, the Supreme Court, among other things, denied the Crabtree defendants’ motion, and the Crabtree defendants appeal.“To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Gould v. Decolator, 121 AD3d 845, 847; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v. Martinez, 84 NY2d 83, 88). ”On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Shah v. Exxis, Inc., 138 AD3d 970, 971; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v. Martinez, 84 NY2d at 87-88). ”Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Rabos v. R&R Bagels & Bakery, Inc., 100 AD3d 849, 851-852; see Guggenheimer v. Ginzburg, 43 NY2d 268, 274-275).Applying these standards, the Supreme Court properly denied those branches of the Crabtree defendants’ motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them. The complaint, as supplemented by the evidentiary material submitted by the plaintiff in opposition to the motion, set forth cognizable causes of action to recover damages for breach of the escrow agreement, breach of fiduciary duty, conversion, unjust enrichment, and participation in a fraudulent scheme insofar as asserted against the Crabtree defendants (see Sasidharan v. Piverger, 145 AD3d 814, 816; Center for Rehabilitation & Nursing at Birchwood, LLC v. S & L Birchwood, LLC, 92 AD3d 711, 713; Levin v. Kitsis, 82 AD3d 1051, 1052-1053). The evidence submitted by the Crabtree defendants in support of their motion did not demonstrate that a material fact as claimed by Esposito was not a fact at all, and did not utterly refute Esposito’s factual allegations, conclusively establishing a defense as a matter of law.The Crabtree defendants’ remaining contentions are without merit.Accordingly, the Supreme Court properly denied those branches of the Crabtree defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the complaint and cross claims insofar as asserted against them, and for an award of an attorney’s fee and expenses.DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Leventhal, Connolly and Brathwaite Nelson, JJ.Bernardino Esposito, ap, v. Elissa Weiner, etc., et al., def, Andrew L. Crabtree, etc. res — (Index No. 7224/14)Isolina Esposito, Bronx, NY (Mitchell L. Perry of counsel), for appellant.L’Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY (Joan Martino of counsel), for respondents.In an action, inter alia, for the return of funds placed in escrow, the plaintiff appeals from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered January 11, 2016. The order granted the motion of the defendants Andrew L. Crabtree and Andrew L. Crabtree, P.C., for leave to reargue those branches of their prior motion which were, in effect, pursuant to CPLR 3211(a)(7) to dismiss the demand for consequential damages, economic damages, lost profits, emotional damages, punitive damages, and an attorney’s fee insofar as asserted against them, which had been denied in an order of the same court entered July 9, 2015, and, upon reargument, granted those branches of the prior motion.ORDERED that the order is modified, on the law, by deleting the provisions thereof, upon reargument, granting those branches of the motion of the defendants Andrew L. Crabtree and Andrew L. Crabtree, P.C., which were, in effect, pursuant to CPLR 3211(a)(7) to dismiss the demand for consequential damages, economic damages, lost profits, and punitive damages insofar as asserted against them, and substituting therefor provisions adhering to the original determination as to those branches of the motion; as so modified, the order is affirmed, with costs to the plaintiff.In this action, the plaintiff asserted causes of action against the defendants Andrew L. Crabtree and Andrew L. Crabtree, P.C. (hereinafter together the Crabtree defendants), relating to their handling of escrow funds. The Crabtree defendants moved, inter alia, pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them. In an order entered July 9, 2015, the Supreme Court denied the motion. The Crabtree defendants moved for leave to reargue those branches of their prior motion which were, in effect, pursuant to CPLR 3211(a)(7) to dismiss the demand for consequential damages, economic damages, lost profits, emotional damages, punitive damages, and an attorney’s fee insofar as asserted against them. In an order entered January 11, 2016, the court granted reargument and, upon reargument, granted those branches of the prior motion. The plaintiff appeals.We agree with the Supreme Court that upon reargument, that branch of the Crabtree defendants’ prior motion which was, in effect, pursuant to CPLR 3211(a)(7) to dismiss the demand for emotional damages insofar as asserted against them should have been granted, since no basis was pleaded in the complaint for the recovery of damages for emotional injuries (see generally Taggart v. Costabile, 131 AD3d 243, 255-256). Further, upon reargument, we agree with the court that the branch of the Crabtree defendants’ prior motion which was, in effect, pursuant to CPLR 3211(a)(7) to dismiss the demand for an attorney’s fee insofar as asserted against them should have been granted, since no contractual or statutory basis was pleaded for an award of an attorney’s fee (see Traiman v. United States Life Ins. Co. in City of N.Y., 139 AD3d 713, 715).However, the Supreme Court, upon reargument, should not have granted those branches of the Crabtree defendants’ prior motion which were, in effect, pursuant to CPLR 3211(a)(7) to dismiss the demand for consequential damages, economic damages, lost profits, and punitive damages insofar as asserted against them. It would be premature, at this stage of the litigation, to conclude that the allegations were insufficient to support a claim for these damages (cf. Gipe v. DBT Xpress, LLC, 150 AD3d 1208). The evidence submitted by the Crabtree defendants in support of their motion, including the terms of the escrow agreement relating to the escrow agent’s liability, did not demonstrate that a material fact as claimed by the plaintiff was not a fact at all.The plaintiff’s remaining contention is without merit.DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix, Nelson and Iannacci, JJ.PEOPLE, etc., res, v. Carlos Molina, ap — (Ind. No. 15-0904)Steven A. Feldman, Uniondale, NY, for appellant.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jennifer Spencer of counsel), for respondent (no brief filed).Appeal by the defendant from a judgment of the County Court, Westchester County (Barbara G. Zambelli, J.), rendered May 10, 2016, convicting him of robbery in the first degree (two counts), upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the 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 Leventhal, J.P.; Austin, Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Edward Cecora, ap — (Ind. No. 5857/07)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 (Martin P. Murphy, J.), rendered January 31, 2012, convicting him of burglary in the third 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).LEVENTHAL, J.P., AUSTIN, COHEN, BARROS and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Sgroi, Miller and Brathwaite Nelson, JJ.MATTER of Justine Guma, ap, v. James Lennard, res — (Proceeding No. 1)MATTER of James Lennard, res, v. Justine Guma, ap — (Proceeding No. 2) (Docket Nos. V-2104-16/16B/16C/16D)Ralph R. Carrierri, Mineola, NY, for appellant.Adam H. Moser, Rockville Centre, NY, for respondent.Joseph P. Abbenda, Glen Cove, NY, attorney for the child.In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Robin M. Kent, J.), dated August 2, 2016. The order, insofar as appealed from, after a hearing, granted the father’s petition to modify an order of the same court dated March 13, 2016, so as to award him “sole legal and physical custody” of the parties’ child and denied the mother’s petition, inter alia, in effect, to modify the order dated March 13, 2016, so as to award her “full custody” of the child.ORDERED that the order dated August 2, 2016, is affirmed insofar as appealed from, without costs or disbursements.The parties, who have a child together, agreed to a final order of custody and visitation dated March 13, 2016, which provided for joint legal custody and alternating physical custody. In June 2016, the mother filed a petition alleging that the father had violated the custody order, and, in effect, seeking to modify the order so as to be awarded “full custody” of the child. The father filed a petition to modify the custody order so as to award him “sole legal and physical custody” of the child. The Family Court, after a hearing, granted the father’s petition, awarding him “sole legal and physical custody” of the child with “parenting time” to the mother, and denied the mother’s petition. The mother appeals.“Modification of an existing court-sanctioned custody or visitation arrangement is permissible 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” (Matter of O’Shea v. Parker, 116 AD3d 1051, 1051; see Matter of Scheiner v. Henig, 155 AD3d 874, 874-875; Matter of Bullard v. Clark, 154 AD3d 846). Since custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the Family Court’s determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v. Eschbach, 56 NY2d 167, 173-174; Matter of Cusano v. Coitino, 155 AD3d 722; Matter of Bullard v. Clark, 154 AD3d at 847).Here, contrary to the mother’s contention, the Family Court’s determination that there had been a change in circumstances requiring an award of sole legal and physical custody to the father in order to ensure the best interests of the child had a sound and substantial basis in the record and, therefore, will not be disturbed (see Eschbach v. Eschbach, 56 NY2d at 173-174; Matter of Scheiner v. Henig, 155 AD3d at 875). The court’s determination was supported, among other things, by evidence that joint custody was untenable, that the mother refused to keep the father informed as to where she was living with the child, and that the mother persisted in holding out another individual as the father of the child (see Matter of Cusano v. Coitino, 155 AD3d 722; Musachio v. Musachio, 137 AD3d 881, 883).The mother’s remaining contention is without merit.DILLON, J.P., SGROI, MILLER and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.Alan Ruiz, res, v. Mike Ford, etc., def, 5102 Foster Avenue Trust, ap — (Index No. 15279/10)Hodgson Russ LLP, Buffalo, NY (Michael C. O’Neill of counsel), for appellant.Kazmierczuk & McGrath, Forest Hills, NY (John P. McGrath of counsel), for respondent.In an action to recover damages for personal injuries, the defendant 5102 Foster Avenue Trust appeals from an order of the Supreme Court, Kings County (Loren Baily-Schiffman, J.), dated April 13, 2015, and a judgment of the same court dated December 3, 2015. The order denied that defendant’s motion to vacate a determination granting the plaintiff’s motion, in effect, pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability pursuant to Labor Law §240(1) and denying that defendant’s cross motion, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the amended complaint. The judgment, upon the order, is in favor of the plaintiff and against that defendant.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment is reversed, on the law, the motion of the defendant 5102 Foster Avenue Trust to vacate the determination granting the plaintiff’s motion, in effect, pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability pursuant to Labor Law §240(1) and denying that defendant’s cross motion, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the amended complaint is granted, the plaintiff’s motion is denied, the cross motion of the defendant 5102 Foster Avenue Trust is granted, the order is modified accordingly, and the amended complaint is dismissed; and it is further,ORDERED that one bill of costs is awarded to the defendant 5102 Foster Avenue Trust payable by the plaintiff.In September 2008, the plaintiff, a service technician for nonparty Verizon, was injured at premises owned by the defendant 5102 Foster Avenue Trust (hereinafter the Trust) and leased by the defendant Mike Ford, who operated an automobile parts and transmission repair shop in a portion of the building (hereinafter the garage). On the day of the accident, Verizon dispatched the plaintiff to investigate and repair a loss of data service that Ford had reported to Verizon. At the time of the accident, the plaintiff was climbing a ladder supplied by Verizon in order to access the Verizon optical network terminal which was located on an interior wall of the building, several feet above an office shed roof that had been built within the garage. Tires were stored on the shed roof. The plaintiff had climbed approximately four or five rungs on his ladder when one or more tires fell from the office shed roof, struck the ladder, and caused the plaintiff to fall from the ladder to the ground.Thereafter, the plaintiff commenced this action against Ford and the Trust to recover damages for personal injuries, alleging common-law negligence. Ford was dismissed from the action, and the plaintiff amended the complaint to state one cause of action, which was against the Trust alleging a violation of Labor Law §240(1). The case proceeded to trial. After the close of the liability phase, the plaintiff moved, in effect, pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability pursuant to Labor Law §240(1) and the Trust cross-moved, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the amended complaint. The Supreme Court granted the plaintiff’s motion and denied the Trust’s cross motion. Following the close of the damages phase of the trial, the Trust moved to vacate the determination granting the plaintiff’s motion and denying the defendant’s cross motion. In an order dated April 13, 2015, the court denied the motion. The court subsequently entered judgment upon the order in favor of the plaintiff and against the Trust. The Trust appeals from the order and the judgment.The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).“A trial court’s grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” (Szczerbiak v. Pilat, 90 NY2d 553, 556; see Hamilton v. Rouse, 46 AD3d 514, 516). In considering such motion, “the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” (Szczerbiak v. Pilat, 90 NY2d at 556; see Raia v. Berkeley Coop. Towers Section II Corp., 147 AD3d 989, 991).“To prevail on a cause of action pursuant to section 240(1) [of the Labor Law] in a falling object case, the injured worker must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” (Berman-Rey v. Gomez, 153 AD3d 653, 655 [internal quotation marks omitted]; see Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662). ”This requires a showing that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking” (Berman-Rey v. Gomez, 153 AD3d at 655; see Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 NY3d at 662-663; Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 268). ”Labor Law §240(1) ‘does not apply in situations in which a hoisting or securing device of the type enumerated in the statute would not be necessary or expected’” (Seales v. Trident Structural Corp., 142 AD3d 1153, 1156, quoting Moncayo v. Curtis Partition Corp., 106 AD3d 963, 965; see Narducci v. Manhasset Bay Assoc., 96 NY2d at 268).Here, the evidence adduced at trial, viewed in the light most favorable to the plaintiff, demonstrated that the tires were not materials that were being hoisted or secured for the purposes of the undertaking, nor was it expected, under the circumstances of this case, that the tires would require securing for the purposes of the undertaking at the time one or more tires fell (see Narducci v. Manhasset Bay Assoc., 96 NY2d at 268; Seales v. Trident Structural Corp., 142 AD3d at 1156; Moncayo v. Curtis Partition Corp., 106 AD3d at 965). Therefore, “the ‘special protection’ of Labor Law §240(1) was not implicated” (Moncayo v. Curtis Partition Corp., 106 AD3d at 965, quoting Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7).The parties’ remaining contentions either are without merit, or need not be reached in light of our determination.Accordingly, the Supreme Court should have granted the Trust’s motion to vacate the determination granting the plaintiff’s motion, in effect, pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability pursuant to Labor Law §240(1) and denying its cross motion, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the amended complaint, and, thereupon, denied the plaintiff’s motion, granted the Trust’s cross motion, and dismissed the amended complaint.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Dillon, J.P.; Miller, Barros and Christopher, JJ.Autry D. Forbes, res, v. American Safety Casualty Insurance Company, appellant def — (Index No. 703222/14)In an action, inter alia, to recover upon a performance bond, the defendant American Safety Casualty Insurance Company appeals from an order of the Supreme Court, Queens County (Duane A. Hart, J.), entered April 13, 2015, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is affirmed, with costs.In 2012, the plaintiff hired the defendant Earth Link General Construction, Inc. (hereinafter Earth Link), as a general contractor for a home construction and renovation project. In connection with the project, Earth Link obtained a performance bond and a payment bond from the defendant American Safety Casualty Insurance Company (hereinafter ASCI).The plaintiff commenced this action against Earth Link, ASCI, and others. The plaintiff alleged that Earth Link breached the construction contract by, inter alia, performing work in a deficient manner. As against ASCI, the plaintiff sought to recover on the performance bond. In an order entered April 13, 2015, the Supreme Court denied ASCI’s motion for summary judgment dismissing the complaint insofar as asserted against it. ASCI appeals.ASCI was not entitled to summary judgment dismissing the complaint insofar as asserted against it, as it failed to establish, prima facie, that any of the conditions precedent set forth in the performance bond were not satisfied by the plaintiff (see Klewin Bldg. Co., Inc. v. Heritage Plumbing & Heating, Inc., 42 AD3d 559, 560; see also Walter Concrete Constr. Corp. v. Lederle Labs., 99 NY2d 603, 605). Since ASCI failed to meet its prima facie burden, the Supreme Court properly denied ASCI’s motion without regard to the sufficiency of the plaintiff’s opposition papers (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.