Appellate Division Second Department Hand Down List decided on: August 29, 2018

Appellate DivisionSecond DepartmentHand Down List decided on:August 29, 2018By Rivera, J.P.; Austin, Connolly and Iannacci, JJ.Kristen Westbrook, res, v. Peter Westbrook, ap — (Index No. 14004/08)Sallah Law Firm, P.C., Holtsville, NY (Dean J. Sallah of counsel), for respondent.In an action for a divorce and ancillary relief, the defendant appeals from a judgment of divorce of the Supreme Court, Suffolk County (Marlene L. Budd, J.), entered April 14, 2015. The judgment, insofar as appealed from, upon a decision of the same court (Stephen M. Behar, J.) dated December 22, 2014, made after a nonjury trial, awarded the plaintiff maintenance in the sum of $2,000 per month for the period of January 1, 2015, through June 1, 2019, awarded the plaintiff the sum of $100,333.33, representing one third of the estimated value of the defendant’s interest in his business, failed to award the defendant a credit against the proceeds of the sale of the marital residence for payments made by him to reduce the principal balance of a first mortgage and the principal balance of a home equity line of credit on the marital residence, and failed to direct that the parties are equally responsible for the entire remaining balance of the mortgage and the home equity line of credit on the marital residence.ORDERED that the judgment is modified, on the facts and in the exercise of discretion, (1) by adding thereto a provision awarding the defendant a credit against the proceeds of the sale of the marital residence for 50 percent of the payments made by him beginning on December 1, 2009, through the pendency of the action to reduce the principal balance of the first mortgage and the principal balance of the home equity line of credit on the marital residence, and (2) by adding thereto a provision directing that the parties are equally responsible for the balance of the home equity line of credit on the marital residence until entry of the judgment of divorce; as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendant, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the amount that the defendant expended beginning on December 1, 2009, through the pendency of the action to reduce the principal balance of the first mortgage and the principal balance of the interest only home equity line of credit on the marital residence, and for the entry of an appropriate amended judgment thereafter.The parties were married on July 11, 1998. Prior to the marriage, the defendant’s mother gave her home to the defendant and his siblings, and the defendant owned a one-third share of the value of the home as a result. In or around 1999, the defendant purchased the remaining two-thirds share of the value of the home from his siblings. Thereafter, the parties resided in the home with their two children, who were born during the marriage, as well as with the plaintiff’s child from a prior relationship. In 2001, the defendant started a business called Dunrite Chimney Corp. (hereinafter Dunrite), which performed, among other things, chimney cleaning and masonry repair.In April 2008, the plaintiff commenced this action for a divorce and ancillary relief. In a pendente lite order dated August 12, 2008, the Supreme Court, inter alia, directed the defendant to pay temporary child support in the sum of $150 per week. The court also directed the defendant to pay a majority of the carrying charges on the marital residence, which included a first mortgage on the two-thirds share of the value of the marital residence that had been purchased from the defendant’s siblings, as well as a home equity line of credit (hereinafter HELOC) that was secured by the marital residence. On or about November 24, 2009, the parties executed a stipulation agreeing, inter alia, that the defendant would have exclusive use and occupancy of the marital residence effective December 1, 2009, and that the defendant would pay child support to the plaintiff in the sum of $350 per week commencing on December 1, 2009. Thereafter, the plaintiff moved, inter alia, to increase the defendant’s temporary child support obligation. In a pendente lite order dated May 21, 2010, the Supreme Court directed the defendant to pay $700 per week in temporary child support during the pendency of the action.Following a nonjury trial, the Supreme Court issued a decision after trial, inter alia, awarding the plaintiff the sum of $100,333.33, representing one third of the estimated value of the defendant’s interest in Dunrite, and awarding the plaintiff maintenance in the sum of $2,000 per month for the period of January 1, 2015, through June 1, 2019, when the parties’ youngest child turns 18 years old. The court declined to award the defendant a credit for the payments made by him during the pendency of the action to reduce the principal balances of the first mortgage and the HELOC. In addition, the court directed that the marital residence be listed for sale, and that the defendant shall make the payments towards the first mortgage and the HELOC if he continued to reside in the marital residence until the residence was sold. Subsequently, the court issued a judgment of divorce, which, inter alia, awarded the plaintiff the sum of $100,333.33, made the award of maintenance, and incorporated by reference the decision after trial. The defendant appeals from the judgment of divorce.“‘[T]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts’” (Galanopoulos v. Galanopoulos, 152 AD3d 745, 746, quoting Repetti v. Repetti, 147 AD3d 1094, 1096; see Kaprov v. Stalinsky, 145 AD3d 869, 874). ”The factors to consider in awarding maintenance include ‘the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance’” (Horn v. Horn, 145 AD3d 666, 668, quoting Kret v. Kret, 222 AD2d 412, 412). ”The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enoughtime to become self-supporting” (Sansone v. Sansone, 144 AD3d 885, 886 [internal quotation marks omitted]). Here, the Supreme Court providently exercised its discretion in setting the amount and duration of the award of maintenance to the plaintiff.“A trial court is vested with broad discretion in making an equitable distribution of marital property, and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed” (Aloi v. Simoni, 82 AD3d 683, 685 [internal quotation marks omitted]). ”Equitable distribution is ‘based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker’” (K. v. B., 13 AD3d 12, 17, quoting O’Brien v. O’Brien, 66 NY2d 576, 585). ”The distribution of marital assets depends not only on the financial contribution of the parties ‘but also on a wide range of nonremunerated services to the joint enterprise, such as homemaking, raising children and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home’” (K. v. B., 13 AD3d at 17, quoting Brennan v. Brennan, 103 AD2d 48, 52; see Repetti v. Repetti, 147 AD3d at 1098).Here, the Supreme Court providently exercised its discretion in awarding the plaintiff the sum of $100,333.33, representing one third of the estimated value of the defendant’s interest in Dunrite. The court credited, among other things, the plaintiff’s testimony that for the first few years after the husband began operating Dunrite, she contributed towards the business by helping with the scheduling of employees, assisting with some of the billing, answering the work phone during the day, and reviewing invoices at the end of the day. There is no basis to disturb the court’s credibility determination, particularly with respect to the plaintiff’s testimony regarding the tasks that she performed for Dunrite in the first two years after the business was started, when the defendant operated the business out of the marital residence (see generally Matter of McNair v. Fenyn, 149 AD3d 747, 748). Although the plaintiff began to work part-time later in the marriage, she was primarily responsible for taking care of the parties’ children and the household. Additionally, the duration of the parties’ marriage was only one factor for the court to consider in determining equitable distribution (see Shyue v. Tarn, 6 AD3d 521, 521). Thus, the award of one third of the estimated value of the defendant’s interest in Dunrite properly accounts for the plaintiff’s direct and indirect contributions to the business, while not ignoring her contributions as the primary caregiver of the parties’ children, which allowed the defendant to focus on the business (see generally Repetti v. Repetti, 147 AD3d at 1098; Kaplan v. Kaplan, 51 AD3d 635).Contrary to the defendant’s contention, the Supreme Court did not engage in impermissible double counting by distributing to the plaintiff a share of the value of the defendant’s interest in Dunrite and awarding maintenance to the plaintiff based upon income that the defendant earned from Dunrite, namely, the normalized earnings reported by the expert (see Keane v. Keane, 8 NY3d 115; Palydowycz v. Palydowycz, 138 AD3d 810, 813; Shah v. Shah, 100 AD3d 734; Weintraub v. Weintraub, 79 AD3d 856; Kerrigan v. Kerrigan, 71 AD3d 737; Groesbeck v. Groesbeck, 51 AD3d 722). The maintenance was based upon the reasonable compensation that was excluded from the excess earning calculations. Dunrite is a tangible, income-producing asset as opposed to an intangible asset with no value other than the income it produces. The “excess earnings approach” valuation method used by the plaintiff’s expert to determine the fair market value of Dunrite does not change its essential nature as a separate tangible asset (see Palydowycz v. Palydowycz, 138 AD3d at 813; Sutaria v. Sutaria, 123 AD3d 909, 911). Dunrite employed four individuals other than the defendant, owned four vehicles, and held approximately $50,000 in cash, $29,000 in inventory, and $55,000 in property and equipment. Therefore, it was not completely indistinguishable from the income stream upon which the defendant’s maintenance obligation was based. Given the duration of the marriage, the aggregate amount of maintenance awarded to the plaintiff, and all the other circumstances, including that the payout of the award to the plaintiff for Dunrite is only $1,000 per month, the maintenance award is fair and appropriate.The Supreme Court properly declined to grant the defendant a credit against the proceeds of the sale of the marital residence for payments he made to reduce the principal balance of the first mortgage and the principal balance of the HELOC during the period from the commencement of the action through November 30, 2009. Although the defendant was directed to pay a majority of the carrying charges on the marital residence during the pendency of the action, the court also directed the defendant in the pendente lite order dated August 12, 2008, to pay a relatively small sum of temporary child support to the plaintiff. However, after the parties executed the stipulation dated November 24, 2009, which increased the amount of the defendant’s temporary child support obligation commencing on December 1, 2009, and the court thereafter further increased the defendant’s temporary child support obligation to $700 per week, the defendant was no longer, in effect, receiving a discount on his temporary child support obligation in recognition of the carrying charges that he was paying. As a result, the court improvidently exercised its discretion in failing to award the defendant a credit against the proceeds of the sale of the marital residence for payments he made to reduce the principal balance of the first mortgage and the principal balance of the HELOC beginning on December 1, 2009, through the pendency of the divorce proceeding (see Morales v. Carvajal, 153 AD3d 514, 514; Goldman v. Goldman, 131 AD3d 1107, 1108; Hymowitz v. Hymowitz, 119 AD3d 736, 741; Turco v. Turco, 117 AD3d 719, 722; Le v. Le, 82 AD3d 845, 846; Judge v. Judge, 48 AD3d 424, 426). Since these expenses should have been allocated on a 50-50 basis, the court should have awarded the defendant a credit against the proceeds of the sale of the marital residence for 50 percent of the amount that he expended from December 1, 2009, through the pendency of the divorce action to reduce the principal balance of the first mortgage and the principal balance of the HELOC.The Supreme Court providently exercised its discretion in directing in the decision after trial that the defendant was to be solely responsible for the balance of the first mortgage after the court issued its decision, if he continued to reside in the marital residence (see generally Minervini v. Minervini, 152 AD3d 666, 668; Lewis v. Lewis, 6 AD3d 837, 839-840). The court providently exercised its discretion in directing that the defendant was to be solely responsible for the remaining balance of the interest only HELOC after the court issued its decision, if he continued to reside in the marital residence        (see McCoy v. McCoy, 117 AD3d 806, 809-810; Caracciolo        v. Chodkowski, 90 AD3d 801, 803; Mosso v. Mosso, 84 AD3d 757, 760). However, because both the plaintiff and the defendant derived benefit from a portion of the funds from the HELOC during the marriage in that the funds were used to invest in securities, it is appropriate for the plaintiff to share in repayment of the principal balance of the HELOC until entry of the judgment of divorce (see Morales v. Carvajal, 153 AD3d 514; Le v. Le, 82 AD3d 845).Accordingly, we modify the judgment by adding thereto a provision awarding the defendant a credit against the proceeds of the sale of the marital residence for 50 percent of the payments made by him beginning on December 1, 2009, through the pendency of the action to reduce the principal balance of the first mortgage and the principal balance of the HELOC, and by adding thereto a provision directing that the parties are equally responsible for the balance of the HELOC until entry of the judgment of divorce. We remit the matter to the Supreme Court, Suffolk County, for a determination of the amount that the defendant expended beginning on December 1, 2009, through the pendency of the action to reduce the principal balance of the first mortgage and the principal balance of the interest only HELOC, and for the entry of an appropriate amended judgment thereafter.RIVERA, J.P., AUSTIN, CONNOLLY and IANNACCI, JJ., concur.By Balkin, J.P.; Roman, Miller and Brathwaite Nelson, JJ.MATTER of Sagres 9, LLC, ap, v. State of New York, res — (Claim No. 179)In a special proceeding for the distribution of money pursuant to EDPL 304(E)(1) and Court of Claims Act §23, the petitioner appeals from an order of the Court of Claims (Alan C. Marin, J.), dated July 27, 2015. The order, insofar as appealed from, failed to award the petitioner interest at the statutory rate of 9 percent per annum on the amount of an offer of just compensation and on the principal sum deposited in a special interest bearing account.ORDERED that the order is modified, on the law, by deleting the provision thereof awarding the petitioner interest that accrued on the amount of the offer of just compensation from September 17, 2013, through October 3, 2013, and that accrued under the terms of a special interest bearing account from October 4, 2013, through December 3, 2013, and from June 5, 2014, through November 4, 2014, and substituting therefor a provision awarding the petitioner interest at the statutory rate of 9 percent per annum on the offer of just compensation from September 17, 2013, through December 3, 2013, and from June 5, 2014, through November 4, 2014; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Court of Claims for a calculation of the interest in accordance herewith, and for the entry of an appropriate amended order thereafter.On September 17, 2013, the State of New York acquired, by eminent domain, title to certain temporary easements on the petitioner’s property in connection with the construction of a bridge. Prior to the taking, in a letter dated September 4, 2013, the condemnor, the New York State Department of Transportation (hereinafter the DOT), offered the petitioner the sum of $37,235 as just compensation for the taking. The DOT also provided the petitioner with a written “Agreement of Adjustment and Release of Owner,” which set forth the sum of the offer as well as other terms and conditions. On October 4, 2013, the New York State Comptroller deposited the amount of the offer of just compensation, plus interest to the date of deposit, into a special interest bearing account pursuant to EDPL 304. By letter dated June 5, 2014, the petitioner accepted the DOT’s offer of just compensation only as an advance payment, and not as payment in full.Upon receiving notice of the deposit of the offer in a special interest bearing account, the petitioner commenced this special proceeding against the State pursuant to EDPL 304 and Court of Claims Act §23, seeking an order of distribution regarding the funds that were deposited and interest at the statutory rate of 9 percent per annum on the funds deposited. The Court of Claims directed the distribution of the sum deposited in the special interest bearing account to the petitioner, including any interest that had accrued under the terms of that account, but declined to award the petitioner interest at the statutory rate of 9 percent per annum on the principal sum deposited.On appeal, the petitioner contends that the deposit made on October 4, 2013, was improper and, thus, the DOT’s obligation to pay statutory interest on the sum deposited did not terminate on that date. EDPL 304 provides, in relevant part, that if “an acquisition is being made for a federally-aided project and the condemnor determines it necessary to deposit [in a special interest bearing account] the amount of the highest appraised value without delay in order to proceed with the letting of a construction contract and to comply with federal laws, rules and regulations, the condemnor may request the comptroller to make the deposit” (EDPL 304[E][2]). A deposit made pursuant to EDPL 304(E)(2) “shall terminate the condemnor’s obligation to pay interest on the amount so deposited provided that interest is paid upon such deposit” (id.).Here, the State failed to establish that the DOT properly directed the New York State Comptroller to deposit the amount of the offer of just compensation in a special interest bearing account on October 4, 2013. While the record demonstrates that the acquisition was being made for a federally aided project, the State’s evidence was insufficient to demonstrate that the DOT determined that it was “necessary” to deposit the amount of the offer “without delay in order to proceed with the letting of a construction contract” (EDPL 304[E][2]). We decline the State’s request to take judicial notice of certain publicly available documents that the State referred to for the first time on appeal (see generally Matter of Gary F. [Bronx Psychiatric Ctr.], 143 AD3d 495, 497; Matter of Warren v. Miller, 132 AD3d 1352, 1354). Accordingly, the DOT’s obligation to pay statutory interest did not terminate on October 4, 2013.The State argues that, pursuant to EDPL 304(c), the accrual of interest was suspended because the petitioner failed to timely accept the DOT’s offer of just compensation as an advance payment. Although this argument is raised for the first time on appeal, we address the argument because it presents a question of law which appears on the face of the record and “‘which could not have been avoided if raised at the proper juncture’” (Coscia v. Jamal, 156 AD3d 861, 864, quoting Goldman & Assoc., LLP v. Golden, 115 AD3d 911, 912 [internal quotation marks omitted]).Pursuant to EDPL 304(B), “in the event that a condemnee within ninety days of the offer fails or refuses to notify the condemnor in writing that the advance payment is accepted,” the “offer shall be deemed rejected.” EDPL 304(C) provides that, “[i]n the event a condemnee shall reject the offer or the offer shall be deemed rejected… or a condemnee unreasonably fails to provide the condemnor with all papers reasonably necessary to effect a valid transfer of title as acquired, within ninety days of receipt, the condemnor’s obligation to pay interest on the amount of the offer shall be suspended until such time as the condemnee accepts the offer as payment in full, or as an advance payment, or provides the necessary title papers as the case may be.”Here, the offer of just compensability was made on September 4, 2013. The petitioner had 90 days, i.e., until December 3, 2013, to notify the DOT in writing that the advance payment was accepted (see EDPL 304[B]). However, the petitioner did not accept the offer as an advance payment until June 5, 2014. Accordingly, the State’s obligation to pay interest was suspended from December 4, 2013, until June 5, 2014.Additionally, even though the petitioner did not execute the Agreement of Adjustment and Release of Owner, under the circumstances presented here, the accrual of interest was suspended pursuant to EDPL 304(C) beginning on November 5, 2014. In a letter dated November 5, 2014, the State notified the petitioner that the State needed certain documents in order to release the advance payment to the petitioner. The State presented evidence demonstrating that the petitioner failed to provide the State with some of the requested documents. In response, the petitioner failed to demonstrate that it had provided the State with all of the requested documents, that the requested documents were not reasonably necessary to effect a valid transfer of title to the State, or that it had been unable to obtain the requested documents.Accordingly, we remit the matter to the Court of Claims to calculate the amount of interest at the statutory rate of 9 percent per annum that accrued on the offer of just compensation from September 17, 2013, through December 3, 2013, and from June 5, 2014, through November 4, 2014 (see State Finance Law §16).BALKIN, J.P., ROMAN, MILLER and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Roman, Miller and Brathwaite Nelson, JJ.MATTER of Sagres 9, LLC, ap, v. State of New York, res — (Claim No. 178)In a special proceeding for the distribution of money pursuant to EDPL 304(E)(1) and Court of Claims Act §23, the petitioner appeals from an order of the Court of Claims (Alan C. Marin, J.), dated July 27, 2015. The order, insofar as appealed from, failed to award the petitioner interest at the statutory rate of 9 percent per annum on the amount of an offer of just compensation and on the principal sum deposited in a special interest bearing account.ORDERED that the order is modified, on the law, by deleting the provision thereof awarding the petitioner interest that accrued on the amount of the offer of just compensation from March 12, 2014, through April 22, 2014, and that accrued under the terms of a special interest bearing account from April 23, 2014, through November 4, 2014, and substituting therefor a provision awarding the petitioner interest at the statutory rate of 9 percent per annum on the offer of just compensation from March 12, 2014, through November 4, 2014; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Court of Claims for a calculation of the interest in accordance herewith, and for the entry of an appropriate amended order thereafter.On March 12, 2014, the State of New York acquired, by eminent domain, title to certain temporary easements on the petitioner’s property in connection with the construction of a bridge. Prior to the taking, in a letter dated March 4, 2014, the condemnor, the New York State Department of Transportation (hereinafter the DOT), offered the petitioner the sum of $305,000 as just compensation for the taking. The DOT also provided the petitioner with a written “Superseding Agreement for Advance Payment,” which set forth the sum of the offer as well as other terms and conditions. By letter dated March 5, 2014, the petitioner accepted the DOT’s offer of just compensation only as an advance payment. On April 23, 2014, the New York State Comptroller deposited the amount of the offer of just compensation, plus interest to the date of deposit, into a special interest bearing account.Upon receiving notice of the deposit of the offer in a special interest bearing account, the petitioner commenced this special proceeding against the State pursuant to EDPL 304 and Court of Claims Act §23, seeking an order of distribution regarding the funds that were deposited and interest at the statutory rate of 9 percent per annum on the funds deposited. The Court of Claims directed the distribution of the sum deposited in the special interest bearing account to the petitioner, including any interest that had accrued under the terms of that account, but declined to award the petitioner interest at the statutory rate of 9 percent per annum on the principal sum deposited.On appeal, the petitioner contends that the deposit made on April 23, 2014, was improper and, thus, the DOT’s obligation to pay statutory interest on the sum deposited did not terminate on that date. EDPL 304 provides, in relevant part, that if “an acquisition is being made for a federally-aided project and the condemnor determines it necessary to deposit [in a special interest bearing account] the amount of the highest appraised value without delay in order to proceed with the letting of a construction contract and to comply with federal laws, rules and regulations, the condemnor may request the comptroller to make the deposit” (EDPL 304[E][2]). A deposit made pursuant to EDPL 304(E)(2) “shall terminate the condemnor’s obligation to pay interest on the amount so deposited provided that interest is paid upon such deposit” (id.).Here, the State failed to establish that the DOT properly directed the New York State Comptroller to deposit the sum of the offer of just compensation in a special interest bearing account on April 23, 2014. While the record demonstrates that the acquisition was being made for a federally aided project, the State’s evidence was insufficient to demonstrate that the DOT determined that it was “necessary” to deposit the amount of the offer “without delay in order to proceed with the letting of a construction contract” (EDPL 304[E][2]). We decline the State’s request to take judicial notice of certain publicly available documents that the State referred to for the first time on appeal (see generally Matter of Gary F. [Bronx Psychiatric Ctr.], 143 AD3d 495, 497; Matter of        Warren v. Miller, 132 AD3d 1352, 1354). Accordingly, the DOT’s obligation to pay statutory interest did not terminate on April 23, 2014.However, EDPL 304(C) provides, in relevant part, that “[i]n the event a condemnee… unreasonably fails to provide the condemnor with all papers reasonably necessary to effect a valid transfer of title as acquired, within ninety days of receipt, the condemnor’s obligation to pay interest on the amount of the offer shall be suspended until such time as the condemnee accepts the offer as payment in full, or as an advance payment.” Even though the petitioner did not execute the written Superseding Agreement for Advance Payment, the accrual of interest on the sum deposited in the special interest bearing account was suspended pursuant to EDPL 304(C) beginning on November 5, 2014. The State notified the petitioner on that date of the documents that the State needed in order to release the advance payment to the petitioner. The State presented evidence demonstrating that the petitioner failed to provide the State with some of the requested documents. In response, the petitioner failed to demonstrate that it had provided the State with all of the requested documents, that the requested documents were not reasonably necessary to effect a valid transfer of title to the State, or that it had been unable to obtain the requested documents.Accordingly, we remit the matter to the Court of Claims to calculate the amount of interest at the statutory rate of 9 percent per annum that accrued on the offer of just compensation from March 12, 2014, through November 4, 2014 (see State Finance Law §16).BALKIN, J.P., ROMAN, MILLER and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Austin, Miller and Maltese, JJ.Robert Heins, appellant-res, v. Public Storage, etc. respondents-ap — (Index No. 9608/08)In an action, inter alia, to recover damages for alleged violations of Lien Law §182, the plaintiff appeals and the defendants cross-appeal from an order of the Supreme Court, Suffolk County (William B. Rebolini, J.), dated September 29, 2015. The order, insofar as appealed from, granted that branch of the defendants’ motion which was to impose sanctions upon the plaintiff for spoliation of physical evidence to the extent of precluding the plaintiff from offering any evidence at trial of the value and condition of the items alleged to have been damaged or removed from a storage unit. The order, insofar as cross-appealed from, denied that branch of the defendants’ motion which was pursuant to CPLR 3126 to dismiss the complaint.ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof precluding the plaintiff from offering any evidence at trial of the value and condition of the items alleged to have been damaged or removed from the storage unit and substituting therefor a provision precluding evidence of the items disposed by the plaintiff that were not available for inspection by the defendants; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff.The plaintiff rented a storage unit owned and/or maintained by the defendants, who allegedly wrongfully sold the contents of the storage unit at an auction. The defendants allegedly mistakenly believed that the plaintiff failed to pay the rental fees for the unit. Once the error was discovered, the auction sale was rescinded and control and possession of the unit reverted back to the plaintiff. However, according to the plaintiff, various valuable items that he had been storing within the unit were removed from the unit and/or damaged while he did not have control over the contents of the unit. After he regained control of the unit, the plaintiff removed its remaining contents over a period of time, ultimately disposing of the vast majority of the items, despite the defendants’ requests to inspect the items.The defendants moved pursuant to CPLR 3126, inter alia, to dismiss the complaint or, in the alternative, to preclude the plaintiff from introducing any evidence at trial of the value and condition of the items allegedly damaged within, or removed from, the storage unit, as a sanction for the plaintiff’s spoliation of evidence. The Supreme Court, inter alia, declined to dismiss the complaint, but precluded the plaintiff from offering any evidence at trial of the value and condition of those items alleged to have been damaged or removed from the storage unit. The plaintiff appeals and the defendants cross-appeal, contending that the imposed sanctions were improper or not harsh enough, respectively.“A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a ‘culpable state of mind,’ and ‘that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense’” (Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d 543, 547, quoting VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 AD3d 33, 45). Where evidence has been intentionally or willfully destroyed, its relevance is presumed (see Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d at 547). However, where evidence has been destroyed negligently, the party seeking spoliation sanctions must establish that the destroyed evidence was relevant to the party’s claim or defense (see id. at 547-548). The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence (see id. at 551; Smith v. Cunningham, 154 AD3d 681, 682).We conclude that the Supreme Court providently exercised its discretion in denying that branch of the defendants’ motion which was pursuant to CPLR 3126 to dismiss the complaint. However, the court improvidently exercised its discretion in determining the sanction to impose.Although the defendants demonstrated that the plaintiff disposed of the majority of the items remaining in the storage unit after he regained control and possession of the unit, the defendants failed to demonstrate that the plaintiff’s conduct rose to the level of being intentional or willful (see Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d at 543; Smith v. Cunningham, 154 AD3d at 681-683). Nevertheless, the evidence was relevant to the plaintiff’s claim (see Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d at 547-548; Smith v. Cunningham, 154 AD3d at 682-683).Under the circumstances of this case, the appropriate sanction is to preclude evidence of the items disposed by the plaintiff that were not available for inspection by the defendants (see Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d at 551).CHAMBERS, J.P., AUSTIN, MILLER and MALTESE, JJ., concur.By Rivera, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.Debra Harris, ap, v. Live, Play and Bounce Corp., respondent def — (Index No. 35283/12)Kenneth J. Ready, Mineola, NY (Gregory S. Gennarelli of counsel), for appellant.Barry McTiernan & Moore LLC, New York, NY (David H. Schultz of counsel), for respondent.In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Denise F. Molia, J.), dated November 30, 2016. The order granted the motion of the defendant Live, Play and Bounce Corp. for summary judgment dismissing the complaint insofar as asserted against it and denied, as academic, the plaintiff’s cross motion for summary judgment on the issue of liability insofar as asserted against it.ORDERED that the order is affirmed, with costs.The plaintiff’s daughter allegedly was injured as she slid down an inflatable slide at a facility owned and operated by the defendant Live, Play and Bounce Corp. (hereinafter the defendant). Although both of her parents were present when the accident allegedly occurred, neither witnessed it. The child, four years old at the time, came to her mother crying, and reporting that she fell and hurt her arm while on a slide. The plaintiff commenced this action to recover damages for personal injuries on behalf of her daughter. The complaint alleged, inter alia, negligent maintenance of the inflatable slide. After the completion of discovery, the defendant moved for summary judgment dismissing the complaint insofar as asserted against it on the ground, among others, that the plaintiff was unable to identify the cause of her child’s accident. The plaintiff opposed the defendant’s motion and cross-moved for summary judgment on the issue of liability insofar as asserted against it. The defendant opposed the cross motion. The Supreme Court granted the defendant’s motion and denied the plaintiff’s cross motion as academic. The plaintiff appeals.Based on the deposition testimony of the child’s parents, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the plaintiff was unable to identify the cause of the child’s accident (see Gani v. Avenue R Sephardic Congregation, 159 AD3d 873, 874; Priola v. Herrill Bowling Corp., 150 AD3d 1163, 1164; Antelope v. Saint Aidan’s Church, Inc., 110 AD3d 1020, 1021; Califano v. Maple Lanes, 91 AD3d 896, 897-898; McFadden v. 726 Liberty Corp., 89 AD3d 1067, 1068; Capasso v. Capasso, 84 AD3d 997, 998; Patrick v. Costco Wholesale Corp., 77 AD3d 810, 811). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Accordingly, we agree with the Supreme Court’s determination to grant the defendant’s motion for summary judgment dismissing the complaint insofar as asserted against it.In light of the Supreme Court’s determination with respect to the defendant’s motion, it properly denied, as academic, the plaintiff’s cross motion for summary judgment on the issue of liability insofar as asserted against the defendant.RIVERA, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Rivera, Chambers and Lasalle, JJ.PEOPLE, etc., res, v. Oscar Perez, ap — (Ind. No. 15-00289)Appeal by the defendant from a judgment of the County Court, Westchester County (Barry E. Warhit, J.), rendered March 17, 2016, as amended August 3, 2016, convicting him of attempted murder in the second degree and assault in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment, as amended, is affirmed.The record reflects that the defendant’s plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Conceicao, 26 NY3d 375, 382; People v. Seeber, 4 NY3d 780; People v. Fiumefreddo, 82 NY2d 536, 543). Although the defendant, in moving to withdraw his plea of guilty, asserted that the voluntariness of his plea was affected by ineffective assistance rendered by his former attorney, the evidence submitted by the defendant in support of his motion was insufficient to support that assertion. Thus, we agree with the County Court’s determination denying the defendant’s motion to withdraw his plea of guilty (see People v. Frederick, 45 NY2d 520; People v. Avery, 18 AD3d 244).SCHEINKMAN, P.J., RIVERA, CHAMBERS and LASALLE, JJ., concur.By Dillon, J.P.; Chambers, Maltese and Connolly, JJ.New York Horse Rescue Corporation ap, v. Suffolk County Society for the Prevention of Cruelty to Animals def, Ann Collins Studer, res — (Index No. 4263/11)In an action, inter alia, to recover damages for defamation, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Peter H. Mayer, J.), dated April 26, 2016. The order, insofar as appealed from, granted that branch of the renewed motion of the defendant Ann Collins Studer which was for summary judgment dismissing the cause of action alleging defamation insofar as asserted against her.ORDERED that the order is affirmed insofar as appealed from, with costs.Since the late 1990s, the plaintiff Mona T. Kanciper owned and operated the plaintiff New York Horse Rescue Corporation (hereianfter NYHR), a not-for-profit corporation that rescues unwanted horses, and Butler Farm, LLC (hereinafter the Farm), a horse farm on the same property as NYHR that is used commercially for riding instruction and other services. In 2009, several people, including the defendant Ann Collins Studer, the parent of a former riding student, filed complaints with the defendant Suffolk County Society for the Prevention of Cruelty to Animals (hereinafter SPCA) alleging, inter alia, that Kanciper mistreated animals on the Farm and unlawfully euthanized dogs and horses without a license. Studer specifically complained that Kanciper, inter alia, had euthanized a dog in the presence of Studer’s then 10-year-old daughter. Following these complaints, the SPCA conducted an investigation, and the Suffolk County District Attorney’s Office subsequently filed criminal charges against Kanciper. While the allegation that Kanciper euthanized a dog in the presence of a child ultimately led to her conviction of endangering the welfare of a child, on appeal to this Court, that conviction was reversed and the charge dismissed (see People v. Kanciper, 100 AD3d 778, 779).The plaintiffs commenced this action against, among others, the SPCA and some of those individuals who filed complaints with the SPCA to recover damages for, inter alia, defamation, tortious interference with contract, and intentional infliction of emotional distress. Specifically, as against Studer, the plaintiffs alleged that she was liable for defamation based on statements she made to the SPCA and for a posting on the Internet. The plaintiffs quoted the language of the Internet post in the amended complaint: “In the short time that my daughter rode at Butler Farm in Manorville I have seen and heard more horror stories than one could possibly hear in a lifetime regarding the treatment of animals and people including her dearly beloved husband who happened to be a really nice guy.” The amended complaint did not set forth the actual alleged defamatory statements made by Studer to the SPCA.Studer made a renewed motion for summary judgment dismissing the amended complaint insofar as asserted against her. The Supreme Court awarded Studer summary judgment and directed dismissal of the causes of action alleging defamation and tortious interference with contract, and limited the cause of action alleging intentional infliction of emotional distress to one issue insofar as asserted against her. The plaintiffs appeal from so much of the order as awarded Studer summary judgment dismissing the defamation cause of action. We affirm insofar as appealed from.Initially, with respect to the plaintiffs’ contention that Studer was liable for defamation based on the statements she made to the SPCA, since the amended complaint failed to set forth “the particular words complained of,” that branch of Studer’s motion which was for summary judgment dismissing so much of the defamation cause of action as was based on those statements should have been granted (CPLR 3016[a]; see CSI Group, LLP v. Harper, 153 AD3d 1314, 1320; Lemieux v. Fox, 135 AD3d 713, 714; Simpson v. Cook Pony Farm Real Estate, Inc., 12 AD3d 496, 497). In any event, the record supports the Supreme Court’s determination that Studer demonstrated, prima facie, that the allegedly defamatory statements enjoyed a qualified privilege. Protection from defamation is afforded where the person making the statements does so fairly “in the discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own affairs, in a matter where his [or her] interest is concerned” (Toker v. Pollak, 44 NY2d 211, 218 [internal quotation marks omitted]; see Thomas H. v. Paul B., 18 NY3d 580, 586; Liberman v. Gelstein, 80 NY2d 429, 437). Here, since the evidence establishes that Studer made the statements to the SPCA in a good faith effort to obtain the aid of a law enforcement agency in addressing a potentially unsafe environment which children in her community frequented, the statements are subject to a qualified privilege (see generally Toker v. Pollak, 44 NY2d at 218-219; Diorio v. Ossining Union Free School Dist., 96 AD3d 710, 712; Blackman v. Stagno, 35 AD3d 776, 778; Simpson v. Cook Pony Farm Real Estate, Inc., 12 AD3d at 497; Wyllie v. District Attorney of County of Kings, 2 AD3d 714, 719). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the statements were made with malice to defeat this privilege (see Lieberman v. Gelstein, 80 NY2d at 439; Bernacchi v. County of Suffolk, 118 AD3d 931, 932; Blackman v. Stagno, 35 AD3d at 778; Simpson v. Cook Pony Farm Real Estate, Inc., 12 AD3d at 778).We also agree with the Supreme Court’s determination to reject the plaintiffs’ contention that Studer was liable for defamation based on the Internet post. Studer established, prima facie, that this post constituted a nonactionable expression of opinion inasmuch as it consisted of imprecise, subjective characterizations which could not be objectively verified (see Mann v. Abel, 10 NY3d 271, 276; Crescendo Designs, Ltd. v. Reses, 151 AD3d 1015, 1016; Matter of Konig v. CSC Holdings, LLC, 112 AD3d 934, 935; Farrow v. O’Connor, Redd, Gollihue & Sklarin, LLP, 51 AD3d 626). In opposition, the plaintiffs failed to raise a triable issue of fact.DILLON, J.P., CHAMBERS, MALTESE and CONNOLLY, JJ., concur.By Dillon, J.P.; Sgroi, Miller and Brathwaite Nelson, JJ.Marlene Francis, etc., ap, v. Mount Vernon Board of Education, res — (Index No. 63868/14)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Terry Jane Ruderman, J.), dated July 5, 2016. The order granted the defendant’s motion for summary judgment dismissing the complaint and denied the plaintiffs’ cross motion, inter alia, to strike the defendant’s answer on the ground of spoliation of evidence.ORDERED that the order is affirmed, with costs.The complaint alleges that L.F., an infant, sustained injuries when he was picked up and dropped on his head by a fellow student at Mount Vernon High School. The plaintiff, suing individually and as the parent and natural guardian of L.F., commenced this action against the defendant, Mount Vernon Board of Education, to recover damages for personal injuries, alleging that it failed to provide adequate supervision. The Supreme Court granted the defendant’s motion for summary judgment dismissing the complaint and denied the plaintiff’s cross motion, inter alia, to strike the defendant’s answer on the ground of spoliation of evidence. The plaintiff appeals, and we affirm.We agree with the Supreme Court’s determination denying that branch of the plaintiff’s cross motion which was to strike the defendant’s answer on the ground of spoliation (see Peters v. Hernandez, 142 AD3d 980, 981; Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 AD3d 717, 718-719). ”‘When a party negligently loses or intentionally destroys key evidence, thereby depriving the nonresponsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading’” (Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 AD3d at 718, quoting Denoyelles v. Gallagher, 40 AD3d 1027, 1027). ”‘[S]triking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct,’” and thus, a court must “‘consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness’” (Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 AD3d at 718, quoting Iannucci v. Rose, 8 AD3d 437, 438; see Peters v. Hernandez, 142 AD3d at 981). ”When the moving party is still able to establish or defend a case, a less severe sanction is appropriate” (Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 AD3d at 718; see Peters v. Hernandez, 142 AD3d at 981). The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence and this Court will substitute its judgment only where the Supreme Court improvidently exercised such discretion (see Doviak v. Finkelstein & Partners, LLP, 137 AD3d 843, 846). Here, a video recording which captured the incident from a distance could not be located after it had been viewed by the plaintiff, the police, and school administrators. According to the Principal of Mount Vernon High School, he did not know when the video disappeared but he asserted that its disappearance was accidental and a search had been conducted to locate it. Under these circumstances, where the defendant lost the video recording after having provided it for viewing to the plaintiff and others, the plaintiff would still be able to establish her case at trial despite the absence of the video. As such, the Supreme Court did not improvidently exercise its broad discretion in concluding that the drastic sanction of striking the defendant’s answer was unwarranted.We also agree with the Supreme Court’s determination to grant the defendant’s motion for summary judgment dismissing the complaint. ”Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (Mirand v. City of New York, 84 NY2d 44, 49; see Brandy B. v. Eden Cent. School Dist., 15 NY3d 297, 302; Nash v. Port Wash. Union Free School Dist., 83 AD3d 136, 146). ”However, unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school’s liability in negligence absent actual or constructive notice of prior similar conduct” (Brandy B. v. Eden Cent. School Dist., 15 NY3d at 302; see Mirand v. City of New York, 84 NY2d at 49). ”In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” (Mirand v. City of New York, 84 NY2d at 49; see Brandy B. v. Eden Cent. School Dist., 15 NY3d at 302; Nash v. Port Wash. Union Free School Dist., 83 AD3d at 150).Here, the defendant established its prima facie entitlement to judgment as a matter of law. The defendant submitted evidence that L.F. and the other student had no previous interaction and that the other student’s prior disciplinary record did not include any violent act, thereby establishing that the defendant had no specific knowledge or notice of any prior conduct such that L.F.’s alleged assault could reasonably have been anticipated (see Brandy B. v. Eden Cent. School Dist., 15 NY3d at 302; Jake F. v. Plainview-Old Bethpage Cent. School Dist., 94 AD3d 804, 805-806; Morman v. Ossining Union Free School Dist., 297 AD2d 788, 789; Janukajtis v. Fallon, 284 AD2d 428, 430). In opposition, the plaintiff failed to raise a triable issue of fact (see Brandy B. v. Eden Cent. School Dist., 15 NY3d at 303; Brown v. South Country Cent. Sch. Dist., 137 AD3d 732, 733; Jake F. v. Plainview-Old Bethpage Cent. School Dist., 94 AD3d at 805-806).DILLON, J.P., MILLER and BRATHWAITE NELSON, JJ., concur.SGROI, J., dissents and votes to reverse the order, on the law, deny the defendant’s motion for summary judgment dismissing the complaint, and grant the plaintiff’s cross motion to the extent of directing an adverse inference charge and otherwise denying the cross motion, with the following memorandum:After the infant L.F. was picked up and dropped on his head by a fellow student (hereinafter the fellow student) at Mount Vernon High School, L.F.’s mother, individually and as the parent and natural guardian of L.F., commenced this action against the defendant, alleging that it was negligent in providing supervision to L.F. Although a video recording was made of the subject incident, the recording was misplaced by the defendant and could not be produced in discovery.After the completion of discovery, the defendant moved for summary judgment dismissing the complaint, and the plaintiff cross-moved to impose sanctions on the defendant on the ground of spoliation of evidence as related to the missing recording. The Supreme Court granted the defendant’s motion and denied the plaintiff’s cross motion. As to the defendant’s motion, the court reasoned, essentially, that the fellow student’s act was unforeseeable and could not have been prevented. Because I disagree with my colleagues in the majority that this conclusion can be reached as a matter of law, I respectfully dissent.Schools have a duty to provide supervision to ensure the safety of those in their charge, and are liable for foreseeable injuries proximately caused by the absence of adequate supervision (see Brandy B. v. Eden Cent. School Dist., 15 NY3d 297, 302; Mirand v. City of New York, 84 NY2d 44, 49; Butera v. Village of Bellport, 128 AD3d 995; Buchholz v. Patchogue-Medford School Dist., 88 AD3d 843, 844). “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” (Mirand v. City of New York, 84 NY2d at 49). If, in fact, “dangerous play comes to its notice while children are within its area of responsibility,” a school is bound “to take energetic steps to intervene” (Lawes v. Board of Educ. of City of N.Y., 16 NY2d 302, 305).I agree with my colleagues in the majority that the defendant demonstrated, prima facie, the lack of prior similar conduct on the part of the fellow student as would have put the defendant on notice of any propensity for violent behavior on his part (see Buchholz v. Patchogue-Medford School Dist., 88 AD3d at 844-845). Under the circumstances of this case, however, there are questions of fact as to whether the defendant nevertheless had sufficiently specific notice of the dangerous conduct which caused L.F.’s injuries, and failed to promptly intervene.L.F. testified at both a General Municipal Law §50-h hearing and a deposition that immediately before he was injured, a group of 30 to 50 students were congregating in the hallway. One of L.F.’s friends was lying on the floor and a group of four or five students, including the fellow student, were “play fighting” by hitting his friend with closed fists. According to L.F., his friend was saying “ouch” and “stop.” The group of students then approached another friend of L.F. (hereinafter the second friend), and began hitting the second friend “much more aggressive[ly].” The second friend also ended up on the floor, and the students began kicking him. L.F. started to walk away, and the fellow student tapped L.F. on the shoulder, grabbed him, and dropped him on his head. A security officer employed by the defendant testified at a deposition that at the time of the incident, she was in the hallway, close enough to hear “a whole bunch of like (sound),” and came over when she saw L.F. on the floor. According to L.F.’s mother, who had an opportunity to view the video recording before it was lost, the students were “rough housing” in the hallway for three to five minutes before L.F. was injured.In light of the foregoing testimony, the defendant failed to demonstrate, prima facie, that it lacked sufficient notice of the injury-producing conduct and that L.F.’s injuries were unforeseeable or unavoidable (see Luciano v. Our Lady of Sorrows School, 79 AD3d 705; Siller v. Mahopac Cent. School Dist., 18 AD3d 532, 533; Nelson v. Sachem Cent. School Dist., 245 AD2d 434, 434-435; see generally Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315 [the defendant need not foresee the precise manner in which its negligence would result in injury]). Put differently, the defendant failed to eliminate all triable issues of fact as to whether the security officer “was presented with a potentially dangerous situation and failed to take ‘energetic steps to intervene’” (Buchholz v. Patchogue-Medford School Dist., 88 AD3d at 845, quoting Lawes v. Board of Educ. of City of N.Y., 16 NY2d at 305; see Butera v. Village of Bellport, 128 AD3d at 996; Luciano v. Our Lady of Sorrows School, 79 AD3d at 705; Siller v. Mahopac Cent. School Dist., 18 AD3d at 533; Shoemaker v. Whitney Point Cent. School Dist., 299 AD2d 719, 720; Nelson v. Sachem Cent. School Dist., 245 AD2d at 434-435). Since the defendant failed to meet its prima facie burden, its motion for summary judgment should have been denied without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).As to the plaintiff’s cross motion, I agree with my colleagues in the majority that the sanction of striking the defendant’s pleading for its inadvertent loss of the video recording was not warranted under the circumstances (see Peters v. Hernandez, 142 AD3d 980, 981; Morales v. City of New York, 130 AD3d 792, 793; Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 AD3d 717, 719). Nevertheless, the plaintiff was potentially prejudiced by the loss of the video recording. Under the circumstances, the appropriate sanction would be to direct that an adverse inference charge, permitting but not requiring the jury to draw a negative inference from the unavailability of the recording, be issued at trial against the defendant (see Eksarko v. Associated Supermarket, 155 AD3d 826, 828-829; Peters v. Hernandez, 142 AD3d at 981; Morales v. City of New York, 130 AD3d at 793; Giuliano v. 666 Old Country Rd., LLC, 100 AD3d 960; Mendez v. La Guacatala, Inc., 95 AD3d 1084, 1085; Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 AD3d at 719; see also Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d 543, 554; PJI 1:77).Accordingly, I would reverse the order appealed from, deny the defendant’s motion for summary judgment dismissing the complaint, and grant the plaintiff’s cross motion to the extent of directing an adverse inference charge.By Mastro, J.P.; Chambers, Sgroi and Maltese, JJ.MATTER of Priciliyana C. (Anonymous). Orange County Department of Social Services, pet; Jacklyn L. (Anonymous), res — (Proceeding No. 1)MATTER of Shannon F. (Anonymous). Orange County Department of Social Services, pet; Jacklyn L. (Anonymous), res — (Proceeding No. 2)MATTER of Alexander L. (Anonymous), ap — Orange County Department of Social Services, petitioner-res; Jacklyn L. (Anonymous), res — (Proceeding No. 3)MATTER of Dustyn L. (Anonymous), ap — Orange County Department of Social Services, petitioner-res; Jacklyn L. (Anonymous), res — (Proceeding No. 4)MATTER of Skyler L. (Anonymous), ap — Orange County Department of Social Services, petitioner-res; Jacklyn L. (Anonymous), res — (Proceeding No. 5)MATTER of Tabbietha L. (Anonymous), ap — Orange County Department of Social Services, petitioner-res; Jacklyn L. (Anonymous), res — (Proceeding No. 6)MATTER of Veronica L. (Anonymous), ap — Orange County Department of Social Services, petitioner-res; Jacklyn L. (Anonymous), res — (Proceeding No. 7)MATTER of Gwendalinn L. (Anonymous), ap — Orange County Department of Social Services, petitioner-res; Jacklyn L. (Anonymous), res — (Proceeding No. 8)MATTER of Nadiya L. (Anonymous), ap — Orange County Department of Social Services, petitioner-res; Jacklyn L. (Anonymous), res — (Proceeding No. 9) (Docket Nos. N-2367-16, N-2368-16, N-2369-16, N-2370-16, N-2371-16, N-2372-16, N-2373-16, N-2374-16, N-2375-16)In related proceedings pursuant to Family Court Act article 10, the children Alexander L., Dustyn L., Skyler L., Tabbietha L., Veronica L., Gwendalinn L., and Nadiya L. appeal from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated November 22, 2016. The order adjourned the neglect petition until July 18, 2017, in contemplation of dismissal upon certain terms and conditions.Motion by the petitioner-respondent to dismiss the appeal on the ground that it has been rendered academic. By decision and order on motion of this Court dated November 3, 2017, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.Upon the papers filed in support of the motion, the papers filed in opposition and in relation thereto, and upon the submission of the appeal, it isORDERED that the motion is granted; and it is further,ORDERED that the appeal is dismissed, without costs or disbursements.“It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal. This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary” (Matter of Hearst Corp. v. Clyne,        50 NY2d 707, 713-714; see Matter of Elizabeth C. [Omar C.],        156 AD3d 193, 198-199; Matter of Kirkland v. Annucci,        150 AD3d 736, 737-738; Matter of Powell v. Mount St. Mary Coll.,        142 AD3d 1082, 1082-1083).Thus, an appeal is academic “unless an adjudication of the merits will result in immediate and practical consequences to the parties” (Coleman v. Daines,        19 NY3d 1087, 1090; see Matter of New York State Commn. on Jud. Conduct v. Rubenstein,        23 NY3d 570, 576; Matter of Colon v. Annucci, 151 AD3d 1061, 1062).The application of these principles to the facts of this case establish that the appeal is academic. In the order appealed from, the Family Court adjourned the proceedings in contemplation of dismissal until July 18, 2017. Where a proceeding is adjourned in contemplation of dismissal, and the proceeding is not restored to the calendar and no applications by the petitioner or the child’s attorney or motions by the court to restore the proceeding to the calendar are pending, “the petition is, at the expiration of the adjournment period, deemed to have been dismissed by the court in furtherance of justice” (Family Ct Act 1039[f]). Thus, the petition has been dismissed, by operation of law and in the furtherance of justice (see id.; cf. Matter of Casey A. [Glen A.], 755 NYS2d 79). Given that the appellants have received the exact relief they seek, any determination we might make in this matter would have no direct effect on the rights of the parties before us (see Matter of Elizabeth C. [Omar C.], 156 AD3d at 199; see also Matter of Lucinda R. [Tabitha L.], 85 AD3d 78, 83).Contrary to the appellants’ contention, this case does not warrant the invocation of the exception to the mootness doctrine (see Matter of Hearst Corp. v. Clyne,        50 NY2d at 714-715).MASTRO, J.P., CHAMBERS, SGROI and MALTESE, JJ., concur.By Mastro, J.P.; Dillon, Connolly and Iannacci, JJ.PEOPLE, etc., ap, v. Dellon King, res — (Ind. No. 6677/16)Appeal by the People from an order of the Supreme Court, Kings County (Miriam Cyrulnik, J.), dated March 24, 2017, which, after a hearing, granted those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.ORDERED that the order is reversed, on the law, and those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statements to law enforcement officials are denied.The defendant was charged with criminal possession of a firearm and criminal possession of a weapon in the second, third, and fourth degrees. In his omnibus motion, the defendant sought, inter alia, to suppress a gun recovered from a backpack by the police, as well as statements he made to the police, as fruits of an unlawful seizure. After a hearing, the Supreme Court granted those branches of the defendant’s omnibus motion. The People appeal.There is no dispute that upon receiving a radio transmission of an anonymous tip that a man of a specific description wearing a black backpack and possessing a gun was traveling on the B6 bus toward Canarsie, the responding police officer had a common-law right of inquiry upon encountering the defendant exiting that bus and matching the description (see People v. Moore, 6 NY3d 496, 498; People v. Spencer, 84 NY2d 749, 753; People v. Hollman, 79 NY2d 181, 184; People v. Stewart, 41 NY2d 65, 69; People v. Abdul-Mateen, 126 AD3d 986, 988; People v. Larmond, 106 AD3d 934; People v. Smith, 207 AD2d 759; cf. Florida v. J.L., 529 US 266). The responding officer testified at the suppression hearing that he approached the defendant and asked something to the effect of, “Hey, what’s up, man, you know, you got a second for the police?” The defendant’s eyes widened, he appeared visibly nervous, and he started to back up. The defendant then thrust his right hand in his right pants pocket and refused to comply with the officer’s command to remove it. These actions by the defendant escalated the encounter to justify the officer drawing his weapon, placing it across his own chest in a “depressed position,” and attempting to forcibly remove the defendant’s hand from his pocket as a self-protective measure (see People v. Abdul-Mateen, 126 AD3d at 988; People v. Wyatt, 14 AD3d 441, 441-442). Further, the defendant’s subsequent flight, coupled with all of the other indicia of criminality, justified the police pursuit (see People v. Moore, 6 NY3d at 500-501; People v. Sierra, 83 NY2d 928, 929; People v. Johnson, 207 AD2d 806) and, ultimately, the recovery of a semi-automatic handgun from the defendant’s backpack, which he abandoned in a nearby bodega (see People v. White, 153 AD3d 1369, 1370; People v. Lewis, 137 AD3d 1057, 1057-1058; People v. Coleman, 125 AD3d 879, 880).Accordingly, the Supreme Court should have denied those branches of the defendant’s omnibus motion which were to suppress the handgun and his subsequent statements to the police after his lawful arrest.MASTRO, J.P., DILLON, CONNOLLY and IANNACCI, JJ., concur.By Rivera, J.P.; Sgroi, Duffy and Iannacci, JJ.John Laronga, res, v. Atlas-Suffolk Corp., appellant-res, Critics Choice Deli NY, Inc., et al., respondents-appellants def — (Index No. 16185/11)In an action to recover damages for personal injuries, the defendant Atlas-Suffolk Corp. appeals, and the defendants Critics Choice Deli NY, Inc., and 1153 East Jericho Deli, Inc., cross-appeal, from an order of the Supreme Court, Suffolk County (Daniel Martin, J.), dated January 6, 2016. The order, insofar as appealed from, denied the motion of the defendant Atlas-Suffolk Corp. for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against it. The order, insofar as cross-appealed from, denied the motion of the defendants Critics Choice Deli NY, Inc., and 1153 East Jericho Deli, Inc., for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against them.ORDERED that the order is affirmed insofar as appealed from; and it is further,ORDERED that the order is reversed insofar as cross-appealed from, on the law, and the motion of the defendants Critics Choice Deli NY, Inc., and 1153 East Jericho Deli, Inc., for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against them is granted; and it is further,ORDERED that one bill of costs is awarded to the defendants Critics Choice Deli NY, Inc., and 1153 East Jericho Deli, Inc., payable by the plaintiff and the defendant Atlas-Suffolk Corp.The plaintiff commenced this action against, among others, Atlas-Suffolk Corp. (hereinafter Atlas-Suffolk), Critics Choice Deli NY, Inc., and 1153 East Jericho Deli, Inc. (hereinafter together the Critics Choice defendants), to recover damages for personal injuries he alleges he sustained when he slipped and fell on a patch of ice in the parking lot of a strip mall owned by Atlas-Suffolk and located in Huntington. The Critics Choice defendants were a retail tenant of the premises, and the principal of the Critics Choice defendants performed certain snow-plowing services at the premises for Atlas-Suffolk.After the completion of discovery, Atlas-Suffolk and the Critics Choice defendants separately moved for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against each of them. The Supreme Court denied both motions. Atlas-Suffolk appeals, and the Critics Choice defendants cross-appeal.“Under the so-called ‘storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” (Marchese v. Skenderi, 51 AD3d 642, 642).Atlas-Suffolk failed to establish its prima facie entitlement to judgment as a matter of law on its contention that the storm in progress rule applied. Although Atlas-Suffolk submitted certified climatological records indicating that on the morning of the day in question precipitation was falling at Long Island MacArthur Airport, the plaintiff’s deposition testimony that it was not snowing or raining that morning demonstrated the existence of a triable issue of fact as to whether there was a storm in progress in Huntington at the time of the accident (see Lebron v. Napa Realty Corp., 65 AD3d 436, 437; Buroker v. Country View Estate Condominium Assn., Inc., 54 AD3d 795, 796; Calix v. New York City Tr. Auth., 14 AD3d 583, 584). Since Atlas-Suffolk failed to meet its initial burden, we need not review the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). Accordingly, we agree with the Supreme Court’s determination to deny Atlas-Suffolk’s motion for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against it.However, the Supreme Court should have granted the Critics Choice defendants’ motion for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against them on the ground that they owed no duty to the plaintiff. ”A limited contractual undertaking to provide snow removal services generally does not render the contractor liable in tort for the personal injuries of third parties” (Baratta v. Home Depot USA, 303 AD2d 434, 434). Nevertheless, “[a] contractor may be held liable for injuries to a third party where, in undertaking to render services, the contractor entirely displaces the duty of the property owner to maintain the premises in a safe condition, the injured party relies on the contractor’s continued performance under the agreement, or the contractor negligently creates or exacerbates a dangerous condition” (LaGuarina v. Metropolitan Tr. Auth., 109 AD3d 793, 795; see Espinal v. Melville Snow Contrs., 98 NY2d 136, 140).The Critics Choice defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was not a party to any snow removal contract that they had with Atlas-Suffolk, and thus, they owed no duty of care to the plaintiff (see Javid v. Sclafmore Constr., 117 AD3d 907, 908; Rudloff v. Woodland Pond Condominium Assn., 109 AD3d 810, 811-812; see also Espinal v. Melville Snow Contrs., 98 NY2d at 140-141). Since the plaintiff did not allege facts in his amended complaint or bill of particulars that would establish the possible applicability of any of the Espinal exceptions, the Critics Choice defendants, in establishing their prima facie entitlement to judgment as a matter of law, were not required to affirmatively demonstrate that these exceptions did not apply (see Javid v. Sclafmore Constr., 117 AD3d at 907-908; Rudloff v. Woodland Pond Condominium Assn., 109 AD3d at 811-812).In opposition, the plaintiff failed to raise a triable issue of fact as to the applicability of one or more of the three Espinal exceptions (see Foster v. Herbert Slepoy Corp., 76 AD3d 210, 214). The plaintiff’s conclusory contention that the Critics Choice defendants launched a force or instrument of harm by creating or exacerbating the icy condition that allegedly caused him to fall was insufficient to raise a triable issue of fact (see Rudloff v. Woodland Pond Condominium Assn., 109 AD3d at 811; Baker v. Buckpitt, 99 AD3d 1097, 1100; Mahaney v. Neuroscience Ctr., 28 AD3d 432, 433). Likewise, the plaintiff failed to submit evidence supporting his contention that the snow removal contract was a comprehensive agreement which displaced Atlas-Suffolk’s duty to maintain the premises in a safe condition, and thus, failed to raise a triable issue of fact because the purported agreement provided only that snow would be removed upon request (see Espinal v. Melville Snow Contrs., 98 NY2d at 141; Linarello v. Colin Serv. Sys., Inc., 31 AD3d 396, 397).Accordingly, the Supreme Court should have granted the Critics Choice defendants’ motion for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against them.RIVERA, J.P., SGROI, DUFFY and IANNACCI, JJ., concur.By Dillon, J.P.; Lasalle, Barros and Christopher, JJ.PEOPLE, etc., res, v. Atara Wisdom, ap — (Ind. No. 6615/12)Paul Skip Laisure, New York, NY (Tammy E. Linn 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 (Albert Tomei, J.), rendered October 8, 2014, convicting her of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress a statement made by her to law enforcement officials.ORDERED that the judgment is affirmed.Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to disprove the defendant’s justification defense beyond a reasonable doubt and to establish the defendant’s guilt of murder in the second degree beyond a reasonable doubt (see Penal Law §§35.15[2][b]; 125.25[1]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence, 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).We agree with the Supreme Court’s determination to deny suppression of an oral statement the defendant made to police on the morning of July 26, 2012. After waiving her Miranda rights (see Miranda v. Arizona, 384 US 436), the defendant freely and voluntarily made a videotaped statement at the police station on July 25, 2012, beginning at approximately 9:00 p.m. The interview ended after approximately 30 minutes, not because the defendant unequivocally invoked her right to remain silent, but rather, to allow her to compose herself. The idea for ending the interview and stopping the videotape was that of the Assistant District Attorney (hereinafter ADA) conducting the interview. The ADA said, “Let’s stop the tape for now,” and “there will be no further questions until we resume the tape.” Questioning resumed the following morning at approximately 10:00 a.m., at which time the defendant was reminded of the rights she had been read the previous day, and the defendant agreed to continue answering more questions. During that session, the defendant stated that after she stabbed the victim, she took the victim’s cell phone, keys, and wallet. The wallet contained the victim’s welfare benefit card, but the defendant specifically denied ever using the card.The defendant’s morning statement was properly admitted at trial. Had the defendant unequivocally and unqualifiedly invoked her right to remain silent the previous evening, the request would have had to be scrupulously honored (see id. at 479; People v. Ferro, 63 NY2d 316, 322), and further interrogation would have had to cease (see People v. Gray, 31 NY2d 68, 70). Under such circumstances, further inquiry can be made, but only if a significant period of time has passed and the police reiterate the requisite warnings (see Michigan v. Mosley, 423 US 96, 103-104; People v. Brown, 266 AD2d 838). However, since the defendant in this case had not unequivocally and unqualifiedly invoked her right to remain silent (see People v. Horton, 46 AD3d 1225, 1226; People v. Caruso, 34 AD3d 860, 862; cf. People v. Legere, 81 AD3d 746, 749) and remained in continuous custody in the interim, police and prosecutors were free to resume their questioning of the defendant within a reasonable time, and to do so without repeating the Miranda warnings (see People v. Legere, 81 AD3d at 748; People v. Santalis, 302 AD2d 614; People v. Holland, 268 AD2d 536, 537; People v. Baker, 208 AD2d 758; People v. Glinsman, 107 AD2d 710). The further questioning at issue here was within a reasonable time under this Court’s precedent (see People v. Holland, 268 AD2d at 536; People v. Thomas, 233 AD2d 347; People v. Baker, 208 AD2d at 758). The suppression hearing testimony of a detective who, in response to questions by defense counsel that the defendant did not want to talk anymore during the prior evening’s videotaped interview, answered, “Right,” and in another instance said, “Correct,” does not require a different result. This testimony does not change the fact that there was no unequivocal invocation of the defendant’s right to remain silent at that time. The suggestion that the detective’s answers refer instead to an unrecorded communication by the defendant, despite the colloquy on the videotape that there would be no further questioning until the tape is resumed, is mere speculation and conjecture that reads into the record information that simply is not present, and provides no basis for concluding that the defendant’s 10:00 a.m. statement should have been suppressed.We agree with the Supreme Court’s determination to admit evidence of a prior uncharged crime involving the defendant’s theft and use of certain property that belonged to the victim, as it completed the narrative and provided circumstantial evidence of the date of the victim’s death (see People v. Morris, 21 NY3d 588, 594; People v. Conroy, 102 AD3d 979, 980). The probative value of the evidence outweighed its prejudicial effect (see People v. Till, 87 NY2d 835, 836), and the court’s limiting instruction was sufficient to avert any potential prejudice (see People v. Jackson, 178 AD2d 438, 439; People v. Economy, 156 AD2d 459, 460).The defendant’s contention that she was deprived of a fair trial by the admission into evidence of a recording of the victim’s 911 call is unpreserved for appellate review (see CPL 470.05[2]) and, in any event, without merit. We agree with the Supreme Court’s determination to admit the recording under the present sense impression exception to the hearsay rule (see People v. Catave, 21 NY3d 374, 382; People v. Vasquez, 88 NY2d 561, 575; People v. Brown, 80 NY2d 729, 732).The defendant’s contention that certain comments made by the prosecutor during summation deprived her of a fair trial is partially unpreserved for appellate review (see CPL 470.05[2]). In any event, to the extent that the prosecutor exceeded the bounds of permissible rhetorical comment or made other improper remarks during summation, the remarks were not so egregious as to have deprived the defendant of a fair trial, and any other error in this regard was harmless (see People v. Crimmins, 36 NY2d 230, 238, 241-242; People v. Adamo, 309 AD2d 808, 809).We agree with the defendant that it was improper for the Supreme Court to condition her ability to interview a prosecution witness upon the interview occurring either in the presence of the prosecutor or a detective (see e.g. People v. Eanes, 43 AD2d 744). However, the error was harmless (see People v. Crimmins, 36 NY2d 230).The defendant’s remaining contention is without merit.DILLON, J.P., LASALLE, BARROS and CHRISTOPHER, JJ., concur.By Roman, J.P.; Cohen, Miller and Maltese, JJ.U.S. Bank National Association, etc., res, v. Melvin Quinones, ap — (Index No. 5014/08)Melvin Quinones, Wallkill, NY, appellant pro se.Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, and Robin L. Muir of counsel), for respondent.In an action to foreclose a mortgage, the defendant appeals from two orders of the Supreme Court, Orange County (Elaine Slobod, J.), both dated January 8, 2016. The first order granted the plaintiff’s motion for a writ of assistance and denied the defendant’s motion to stay further proceedings pending the determination of a prior appeal. The second order granted the plaintiff’s motion for a writ of assistance and directed the Sheriff of Orange County to eject the defendant from the subject premises and to put the plaintiff in immediate possession of the subject premises.ORDERED that the appeal from so much of the first order dated January 8, 2016, as denied the defendant’s motion to stay further proceedings pending the determination of a prior appeal is dismissed; and it is further,ORDERED that the first order dated January 8, 2016, is affirmed insofar as reviewed; and it is further,ORDERED that the second order dated January 8, 2016, is affirmed; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.Upon the defendant’s default in answering or appearing in this mortgage foreclosure action, the Supreme Court issued a judgment of foreclosure and sale dated December 4, 2009. In 2013, the plaintiff purchased the subject property at a foreclosure sale, and the property was conveyed to the plaintiff by a referee’s deed dated November 22, 2013. The defendant subsequently made two motions to vacate his default, both of which were denied in an order dated March 12, 2015. The defendant filed a notice of appeal from the order dated March 12, 2015. The plaintiff then moved for a writ of assistance directing the Sheriff of Orange County to remove the defendant from the property. In response, the defendant moved to stay further proceedings pending the determination of his appeal from the order dated March 12, 2015. In an order dated January 8, 2016, the court granted the plaintiff’s motion for a writ of assistance and denied the defendant’s motion to stay further proceedings pending the determination of his appeal. In a second order dated January 8, 2016, the court granted the plaintiff’s motion for a writ of assistance and directed the Sheriff of Orange County to eject the defendant from the property and to put the plaintiff in possession of the property. The defendant appeals from the orders dated January 8, 2016.The defendant’s appeal from so much of the first order as denied his motion to stay further proceedings pending the determination of his prior appeal must be dismissed. The only basis on which the defendant requested the stay was to await the determination of his appeal from the order dated March 12, 2015. That appeal has since been dismissed based on the defendant’s failure to prosecute. Therefore, the relief requested by the defendant is no longer available, and the reversal of so much of the first order as denied the defendant’s motion for a stay pending the determination of the appeal would not affect the defendant’s rights (see Taub v. Schon, 148 AD3d 1202, 1203; DeFilippo v. Miller, 106 AD3d 770, 770-771). Moreover, the defendant’s arguments regarding why the Supreme Court should have vacated his default in answering or appearing in the action could have been raised on his appeal from the order dated March 12, 2015. The dismissal of that appeal for failure to prosecute constitutes an adjudication on the merits of all claims that could have been raised on that appeal (see NP Funding II v. Newsome, 258 AD2d 445, 446, citing Bray v. Cox, 38 NY2d 350, 355), and we decline to exercise our discretion to consider such issues (see Berezyuk v. City of New York, 102 AD3d 901, 902).Contrary to the defendant’s further contentions, we agree with the Supreme Court’s determination to grant the plaintiff’s motion for a writ of assistance (see Lincoln Sav. Bank v. Warren, 156 AD2d 510, 511; Lincoln First Bank v. Polishuk, 86 AD2d 652, 652-653).ROMAN, J.P., COHEN, MILLER and MALTESE, JJ., concur.By Leventhal, J.P.; Cohen, Duffy and Lasalle, JJ.PEOPLE, etc., res, v. Aladdin Sanchez, a/k/a Shags, ap — (Ind. No. 55/13)Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M. Forman, J.), rendered August 5, 2014, convicting him of manslaughter in the first degree, assault in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. By decision and order dated March 8, 2017, this Court modified the judgment, on the law, by vacating the convictions of manslaughter in the first degree, assault in the first degree, and assault in the second degree, and the sentences imposed thereon, and dismissing the count in the indictment charging murder in the second degree, without prejudice to the People to re-present any appropriate charges to another grand jury, and ordering a new trial on the counts of the indictment charging the defendant with assault in the first degree and assault in the second degree (see People v. Sanchez, 148 AD3d 831). On March 22, 2018, the Court of Appeals reversed the decision and order of this Court and remitted the matter to this Court for consideration of the facts and issues raised but not determined on the appeal to this Court (see People v. Sanchez, 31 NY3d 949).ORDERED that, upon remittitur from the Court of Appeals, the judgment is affirmed.Contrary to the defendant’s contention, the County Court did not err in charging manslaughter in the first degree as a lesser included offense of murder in the second degree, as a reasonable view of the evidence supported a finding that the defendant intended to cause serious physical injury to the victim rather than to kill him (see People v. Tendilla-Fuentes, 157 AD3d 721).The defendant’s remaining contention is without merit.LEVENTHAL, J.P., COHEN, DUFFY and LASALLE, JJ., concur.By Scheinkman, P.J.; Rivera, Chambers and Lasalle, JJ.Maryann Finocchiaro, ap, v. Town of Islip, et al., def, Milk & Sugar Cafe, Inc., respondent (and a third-party action). (Index No. 14546/11)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated June 1, 2016. The order, insofar as appealed from, granted that branch of the motion of the defendant Milk & Sugar Cafe, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff allegedly sustained injuries when she tripped and fell after stepping into a hole in the brickwork portion of a public sidewalk in the Town of Islip located in front of a store leased by the defendant Milk & Sugar Cafe, Inc. (hereinafter the Cafe). The plaintiff commenced this action against, among others, the Cafe to recover damages for personal injuries. The Cafe moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. In the order appealed from, the Supreme Court granted that branch of the Cafe’s motion. The plaintiff appeals.“Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous or defective conditions to public sidewalks is placed on the municipality and not the abutting landowner” (Hausser v. Giunta, 88 NY2d 449, 452-453; see Lahens v. Town of Hempstead, 132 AD3d 954, 956; Khaimova v. City of New York, 95 AD3d 1280, 1281). ”‘An abutting owner or lessee will be liable to a pedestrian injured by a dangerous condition on a public sidewalk only when the owner or lessee either created the condition or caused the condition to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner or the lessee and expressly makes the owner or lessee liable for injuries caused by a breach of that duty’” (Morelli v. Starbucks Corp., 107 AD3d 963, 964, quoting Hevia v. Smithtown Auto Body of Long Is., Ltd., 91 AD3d 822, 822-823; see Pareres v. Cho, 149 AD3d 1095, 1096; Martin v. Rizzatti, 142 AD3d 591, 592-593; Lahens v. Town of Hempstead, 132 AD3d at 956).Here, the Cafe demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it did not create the alleged defect in the brickwork, did not cause the alleged defect to occur because of a special use, and did not violate a statute or ordinance that would impose liability for failing to maintain the sidewalk. Moreover, the Cafe demonstrated, prima facie, that the placement of outdoor tables and chairs on the cement portion of the public sidewalk abutting the storefront was not a proximate cause of the plaintiff’s alleged injuries (see Morelli v. Starbucks Corp., 107 AD3d at 964; Bohm v. Town of Brookhaven, 43 AD3d 454, 455). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, we agree with the Supreme Court’s determination to grant that branch of the Cafe’s motion which was for summary judgment dismissing the complaint insofar as asserted against it.SCHEINKMAN, P.J., RIVERA, CHAMBERS and LASALLE, JJ., concur.By Scheinkman, P.J.; Rivera, Chambers and Lasalle, JJ.Karpa Realty Group, LLC, res, v. Deutsche Bank National Trust Company, etc., appellant def — (Index No. 2565/15)Andrei A. Popescu, PLLC, Brooklyn, NY, for respondent.In an action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, the defendant Deutsche Bank National Trust Company appeals from an order of the Supreme Court, Kings County (Johnny Lee Baynes, J.), dated April 21, 2016. The order, insofar as appealed from, granted that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against that defendant 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 December 2006, Alister Aird obtained a loan from the defendant New Century Mortgage Corporation (hereinafter New Century Mortgage), which was secured by a mortgage on real property in Brooklyn. Aird defaulted on his mortgage payments, and in August 2008, the defendant Deutsche Bank National Trust Company (hereinafter Deutsche Bank), as New Century Mortgage’s assignee, accelerated the debt by commencing an action to foreclose the mortgage. In December 2013, the foreclosure action was dismissed pursuant to CPLR 3216 for failure to prosecute.Subsequently, the plaintiff purchased the subject property from Aird and commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against Deutsche Bank, and Deutsche Bank cross-moved for summary judgment dismissing the complaint insofar as asserted against it. In the order appealed from, the Supreme Court granted the plaintiff’s motion and denied Deutsche Bank’s cross motion. Deutsche Bank appeals.Pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired, provided that the mortgagee or its successor is not in possession of the subject real property at the time the action to cancel and discharge the mortgage is commenced (see Lubonty v. U.S. Bank N.A., 159 AD3d 962, 963). An action to foreclose a mortgage has a six-year statute of limitations (see CPLR 213[4]; Lubonty v. U.S. Bank N.A., 159 AD3d at 963). ”[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt” (Lubonty v. U.S. Bank N.A., 159 AD3d at 963 [internal quotation marks omitted]).Here, the plaintiff made a prima facie showing of its entitlement to judgment as a matter of law by establishing that the foreclosure action commenced by Deutsche Bank in 2008 was dismissed pursuant to CPLR 3216, and that the commencement of a new foreclosure action would be time-barred by the applicable six-year statute of limitations (see U.S. Bank N.A. v. Martin, 144 AD3d 891, 891; JBR Constr. Corp. v. Staples, 71 AD3d 952, 953). Thus, in opposition, Deutsche Bank was required to raise a triable issue of fact as to whether the statute of limitations was tolled or revived (see JBR Constr. Corp. v. Staples, 71 AD3d at 953).“General Obligations Law §17-101 effectively revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt” (Lynford v. Williams, 34 AD3d 761, 762; see Mosab Constr. Corp. v. Prospect Park Yeshiva, Inc., 124 AD3d 732, 733). To constitute a valid acknowledgment, a “writing must be signed and recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it” (Sichol v. Crocker, 177 AD2d 842, 843 [internal quotation marks omitted]; see U.S. Bank N.A. v. Martin, 144 AD3d at 892-893; Mosab Constr. Corp. v. Prospect Park Yeshiva, Inc., 124 AD3d at 733). Contrary to Deutsche Bank’s contention, a letter written by Aird that accompanied his second short sale package submitted to Deutsche Bank’s loan servicer did not constitute an unqualified acknowledgment of the debt or manifest a promise to repay the debt sufficient to reset the running of the statute of limitations (see U.S. Bank, N.A. v. Kess, 159 AD3d 767, 768-769; U.S. Bank N.A. v. Martin, 144 AD3d at 892-893; Hakim v. Peckel Family Ltd. Partnership, 280 AD2d 645; Sichol v. Crocker, 177 AD2d at 843).Deutsche Bank’s remaining contentions are without merit. Thus, Deutsche Bank failed to raise a triable issue of fact in opposition to the plaintiff’s motion and failed to establish its prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against it.Accordingly, we agree with the Supreme Court’s determination to grant that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against Deutsche Bank and to deny Deutsche Bank’s cross motion for summary judgment dismissing the complaint insofar as asserted against it.SCHEINKMAN, P.J., RIVERA, CHAMBERS and LASALLE, JJ., concur.By Mastro, J.P.; Roman, Duffy and Brathwaite Nelson, JJ.Tevin Kelly, ap, v. Mihai Rosca, etc. respondents def — (Index No. 3341/14)In a consolidated action to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (John M. Galasso, J.), entered March 1, 2016, (2) an order of the same court entered June 17, 2016, and (3) a judgment of the same court entered July 13, 2016. The order entered March 1, 2016, insofar as appealed from, granted that branch of the motion of the defendants Mihai Rosca, Chris Gelabert, Jennifer Megale, North Shore University Hospital-Manhasset, and Walter Valesky which was for summary judgment dismissing the complaint insofar as asserted against the defendants Chris Gelabert, North Shore University Hospital-Manhasset, and Walter Valesky. The order entered June 17, 2016, insofar as appealed from, in effect, upon reargument, adhered to the original determination in the order entered March 1, 2016, granting that branch of the motion. The judgment, insofar as appealed from, dismissed the complaint insofar as asserted against the defendants Chris Gelabert, North Shore University Hospital-Manhasset, and Walter Valesky.ORDERED that the appeals from the orders entered March 1, 2016, and June 17, 2016, are dismissed; and it is further,ORDERED that the judgment is reversed insofar as appealed from, on the law, the complaint is reinstated insofar as asserted against the defendants Chris Gelabert, North Shore University Hospital-Manhasset, and Walter Valesky, that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against those defendants is denied, the order entered March 1, 2016, is modified accordingly, and so much of the order entered June 17, 2016, as, in effect, upon reargument, adhered to the original determination in the order entered March 1, 2016, granting that branch of the motion, is vacated; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.The appeals from the intermediate orders entered March 1, 2016, and June 17, 2016, must be dismissed because the right of direct appeal therefrom terminated with the entry of the final judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).The plaintiff went to the emergency room of the defendant North Shore University Hospital-Manhasset (hereinafter the Hospital) on October 2, 2013, complaining of left shin pain after playing basketball. He was examined by the defendant Walter Valesky, a sports medicine fellow, and the defendant Chris Gelabert, the emergency department attending physician. X rays were taken, and the plaintiff was discharged with instructions to take Motrin and follow up with an orthopedist or sports medicine doctor. The plaintiff’s pain persisted, and five days later he saw a sports medicine doctor. After examining the plaintiff and taking an X ray, the sports medicine doctor diagnosed the plaintiff with compartment syndrome and directed him to go to a hospital. The plaintiff returned to the Hospital, where he underwent emergency surgery for compartment syndrome.The plaintiff thereafter commenced this action sounding in medical malpractice against, among others, the Hospital, Gelabert, and Valesky (hereinafter collectively the emergency room defendants), alleging a failure to timely diagnose and treat the compartment syndrome during the October 2, 2013, emergency room visit. The emergency room defendants jointly moved with other defendants (hereinafter collectively the moving defendants) for summary judgment dismissing the complaint insofar as asserted against them. In support of their motion, the moving defendants submitted an affirmation of a board-certified vascular surgeon, who opined that the emergency room defendants did not depart from the accepted standard of care in their treatment of the plaintiff on October 2, 2013, as the plaintiff did not have symptoms consistent with compartment syndrome at the time of that visit.In opposition to the motion, the plaintiff submitted evidence that prior to the emergency room visit, he had been trying out for his college’s basketball team when he began to experience pain in his leg, and that the college athletic trainer referred him to the emergency room with suspected compartment syndrome based upon his symptoms. The plaintiff also submitted an affirmation from an expert, a physician certified in general surgery, who opined that the plaintiff had presented to the emergency room on October 2, 2013, with symptoms of compartment syndrome and that the moving defendants departed from the accepted standard of care by failing to perform adequate testing and diagnose the compartment syndrome, from which the plaintiff was suffering at that time.In an order entered March 1, 2016, the Supreme Court granted the moving defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. The plaintiff subsequently moved for leave to reargue his opposition to those branches of the moving defendants’ motion which were for summary judgment dismissing the complaint insofar as asserted against the emergency room defendants. In an order entered June 17, 2016, the court, in effect, upon reargument, adhered to its original determination. In a judgment entered July 13, 2016, the court dismissed the complaint. The plaintiff appeals, arguing that summary judgment was erroneously awarded to the emergency room defendants.To prevail on a motion for summary judgment in a medical malpractice action, the defendant must make a prima facie showing either that there was no departure from good and accepted medical practice, or that any departure was not a proximate cause of the patient’s injuries (see Matos v. Khan, 119 AD3d 909, 910; Makinen v. Torelli, 106 AD3d 782, 783-784; LeMaire v. Kuncham, 102 AD3d 659). Once a defendant has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact with respect to the issues on which the defendant met the prima facie burden (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Stukas v. Streiter, 83 AD3d 18, 24-25).Here, the moving defendants failed to establish, prima facie, that the emergency room defendants did not depart from good and accepted standards of medical care, or that any such departure was not a proximate cause of the plaintiff’s injuries. The moving defendants’ expert merely recounted the treatment rendered and opined in a conclusory manner that such treatment did not represent a departure from good and accepted medical practice (see Barlev v. Bethpage Physical Therapy Assocs, P.C., 122 AD3d 784; Yaegel v. Ciuffo, 95 AD3d 1110, 1112; Faicco v. Golub, 91 AD3d 817, 818; Couch v. County of Suffolk, 296 AD2d 194, 198; cf. Menzel v. Plotnick, 202 AD2d 558, 559). In light of this determination, it is unnecessary to review the sufficiency of the plaintiff’s opposition (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).Accordingly, the Supreme Court should have denied that branch of the moving defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the emergency room defendants.MASTRO, J.P., ROMAN, DUFFY and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Austin, Hinds-Radix and Connolly, JJ.Michael Margarella res, v. Michael Ullian, ap — (Index No. 150811/15)The Scher Law Firm, LLP, Carle Place, NY (Austin Graff of counsel), for appellant.Menicucci Villa Cilmi, PLLC, Staten Island, NY (Jeremy Panzella of counsel), for respondents.In an action to recover on a promissory note and personal guaranty, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant appeals from (1) an order of the Supreme Court, Richmond County (Kim Dollard, J.), dated February 5, 2016, and (2) a judgment of the same court entered April 4, 2016. The order granted the plaintiffs’ motion and denied the defendant’s cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint on the ground of lack of personal jurisdiction. The judgment, upon the order, is in favor of the plaintiffs and against the defendant in the total sum of $3,395,814.51.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment is affirmed; and it is further,ORDERED that one bill of costs is awarded to the plaintiffs.The appeal from the intermediate 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, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).In October 2009, the plaintiffs entered into a “Building Loan Agreement” with Ponquogue Manor Construction, LLC (hereinafter Manor), to loan $1.5 million toward Manor’s project to develop a condominium complex on its property located in Hampton Bays. Simultaneously, the defendant, individually and on behalf of Manor as its managing member, executed a promissory note and a personal guaranty of Manor’s obligations under the note. Manor allegedly defaulted on the note, and the plaintiffs commenced this action to recover on the note and guaranty by motion for summary judgment in lieu of complaint pursuant to CPLR 3213. The defendant cross-moved pursuant to CPLR 3211(a)(8) to dismiss for lack of personal jurisdiction. The Supreme Court granted the plaintiffs’ motion and denied the defendant’s cross motion. The defendant appeals.The plaintiffs established their prima facie entitlement to judgment as a matter of law through their submission of the promissory note, which contained an unequivocal and unconditional obligation to pay, the guaranty, and evidence that the defendant failed to make payment in accordance with the terms of those instruments (see Assevero v. Rihan, 144 AD3d 1061, 1062; DCFS USA, LLC v. Metro Constr. Equities, 122 AD3d 565, 566; Griffon V, LLC v. 11 E. 36th, LLC, 90 AD3d 705, 706). In opposition, the defendants failed to raise a triable issue of fact as to a bona fide defense to nonpayment (see Castle Restoration & Constr., Inc. v. Castle Restoration, LLC, 122 AD3d 789, 790; Rachmany v. Regev, 115 AD3d 840, 841). Contrary to the defendant’s contention, the promissory note was not “inextricably intertwined” with certain other allegedly related agreements the parties entered into, such that any breach of the allegedly related agreements by the plaintiffs may create a defense to payment on the promissory note or relieve the defendant of his obligation under the guaranty (see Preciosa USA, Inc. v. Weiss & Biheller, MDSE, Corp., 127 AD3d 1156, 1156; Castle Restoration & Constr., Inc. v. Castle Restoration, LLC, 122 AD3d at 790; New York Community Bank, 88 AD3d 667, 668). The terms of the promissory note provided that the maker’s obligations were “absolute and unconditional” and that the promissory note was “valid and enforceable irrespective of any other agreement or circumstances.” Accordingly, we agree with the Supreme Court’s determination to grant the plaintiffs’ motion for summary judgment in lieu of complaint pursuant to CPLR 3213.The record supports the Supreme Court’s denial of the defendant’s cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint on the ground of lack of personal jurisdiction. The process server’s affidavits constituted prima facie evidence of proper service (see Citimortgage, Inc. v. Baser, 137 AD3d 735, 736; American Home Mtge. Servicing, Inc. v. Gbede, 127 AD3d 1004, 1005; Indymac Fed. Bank, FSB v. Hyman, 74 AD3d 751, 751). The defendant’s submissions in support of the cross motion were insufficient to defeat the presumption of proper service (see Kondaur Capital Corp. v. McAuliffe, 156 AD3d 778, 779; US Bank N.A. v. Cherubin, 141 AD3d 514, 516; Wells Fargo Bank, N.A. v. Kohn, 137 AD3d 897, 897; Indymac Fed. Bank, FSB v. Hyman, 74 AD3d at 751).BALKIN, J.P., AUSTIN, HINDS-RADIX and CONNOLLY, JJ., concur.By Mastro, J.P.; Dillon, Connolly and Iannacci, JJ.Ndue Gelaj, ap, v. Maria Gelaj, a/k/a Maria Kajtazi, respondent def — (Index No. 61409/15)Smith, Buss & Jacobs, LLP, Yonkers, NY (Jacob E. Amir of counsel), for respondent.In an action, inter alia, for the partition and sale of a cooperative apartment, the plaintiff appeals from two orders of the Supreme Court, Westchester County (David F. Everett, J.), dated March 24, 2017, and April 12, 2017, respectively. The order dated March 24, 2017, insofar as appealed from, in effect, granted that branch of the cross motion of the defendant Maria Gelaj, a/k/a Maria Kajtazi, which was for summary judgment declaring that she is the sole owner of the shares of stock associated with a cooperative apartment. The order dated April 12, 2017, insofar as appealed from, in effect, granted that branch of the cross motion of the defendant Maria Gelaj, a/k/a Maria Kajtazi, which was for summary judgment declaring that she is the sole owner of the shares of stock associated with a cooperative apartment.ORDERED that the order dated March 24, 2017, is reversed insofar as appealed from, on the law, that branch of the cross motion of the defendant Maria Gelaj, a/k/a Maria Kajtazi, which was for summary judgment declaring that she is the sole owner of the shares of stock associated with a cooperative apartment is denied, and so much of the order dated April 12, 2017, as, in effect, granted that branch of the cross motion is vacated; and it is further,ORDERED that the appeal from the order dated April 12, 2017, is dismissed as academic in light of our determination on the appeal from the order dated March 24, 2017; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.In 1999, the plaintiff and the defendant Maria Gelaj, a/k/a Maria Kajtazi (hereinafter the defendant), who are siblings, purchased shares of stock associated with a cooperative apartment as tenants in common. In 2015, the plaintiff commenced this action, inter alia, for a partition and sale of the apartment shares and an accounting. In her answer, the defendant admitted that the plaintiff owns a 50 percent interest in the apartment shares. The defendant also asserted counterclaims for a partition and sale of the apartment shares and an accounting of the payments she made over the years for the apartment.The plaintiff moved for summary judgment appointing a referee to sell the apartment shares. The defendant cross-moved, inter alia, for summary judgment declaring that she is the sole owner of the shares. In support of her cross motion, the defendant submitted an affidavit in which she stated that she is entitled to sole ownership of the shares because she made payments associated with the apartment for 17 years that exceeded the plaintiff’s 50 percent interest in the shares. In opposition to the cross motion, the plaintiff submitted an affidavit in which he stated that he paid a $15,000 down payment and a further $95,000 payment to secure the shares so that the defendant and her husband could live there. He averred that the defendant had provided no basis for a claim to sole ownership of the shares. In reply, the defendant, for the first time, produced two notarized letters allegedly from the plaintiff stating that he was transferring his interest in the shares to the defendant and that he would like his name removed from the certificate of shares. The Supreme Court, inter alia, in effect, granted that branch of the defendant’s cross motion which was for summary judgment declaring that she is the sole owner of the shares. The plaintiff appeals.The purpose of a reply affidavit or affirmation is to respond to arguments made in opposition to the movant’s motion and not to introduce new arguments or grounds in support of the relief sought (see Matter of Moorman v. Meadow Park Rehabilitation & Health Care Ctr., LLC, 57 AD3d 788; Matter of Harleysville Ins. Co. v. Rosario, 17 AD3d 677; Matter of TIG Ins. Co. v. Pellegrini, 258 AD2d 658). There are exceptions to this rule, including when evidence is submitted in response to allegations made for the first time in opposition, or when the other party is given an opportunity to respond to the reply papers (see Gottlieb v. Wynne, 159 AD3d 799; Central Mtge. Co. v. Jahnsen, 150 AD3d 661). Neither of those exceptions applies here. The time for the defendant to produce the letters allegedly from the plaintiff transferring his interest in the shares would have been in support of her cross motion, inter alia, for summary judgment declaring that she is the sole owner of the shares. There was no new allegation in the plaintiff’s opposition to the cross motion that would have warranted the defendant’s submission of the letters in reply. Further, the plaintiff was not given an opportunity to respond by way of surreply or oral argument. An unrecorded, in-chambers discussion of the cross motion cannot be deemed an opportunity to respond, especially in light of the plaintiff’s claim on appeal that the letters are forgeries. Moreover, the defendant did not plead a demand for a declaratory judgment in a counterclaim (see Matter of Nozzleman 60, LLC v. Village Bd. of Vil. of Cold Spring, 34 AD3d 680; Martinez v. Dushko, 7 AD3d 584). The defendant also did not assert a claim to sole ownership of the shares in her pleading. Accordingly, the Supreme Court should not have, in effect, granted that branch of the defendant’s cross motion which was for summary judgment declaring that she is the sole owner of the shares.MASTRO, J.P., DILLON, CONNOLLY and IANNACCI, JJ., concur.By Balkin, J.P.; Austin, Hinds-Radix and Connolly, JJ.Sharona Yadegar, res, v. Deutsche Bank National Trust Company, etc., appellant def — (Index No. 607556/15)McGlinchey Stafford, New York, NY (Brian S. McGrath of counsel), for appellant.Rivkin Radler LLP, Uniondale, NY (David M. Grill, Evan R. Schieber, and Cheryl Korman of counsel), for respondent.In an action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, the defendant Deutsche Bank National Trust Company appeals from three orders of the Supreme Court, Nassau County (Julianne T. Capetola, J.), dated April 12, 2016, May 16, 2016, and June 22, 2016. The orders dated April 12, 2016, and May 16, 2016, each granted the plaintiff’s motion for summary judgment on the complaint, denied that defendant’s cross motion for summary judgment dismissing the complaint insofar as asserted against it, and directed the Nassau County Clerk to cancel and discharge of record the subject mortgage. The order dated June 22, 2016, denied that defendant’s motion for leave to renew with respect to the plaintiff’s motion and its cross motion.ORDERED that the appeal from the order dated April 12, 2016, is dismissed, as that order was superseded by the order dated May 16, 2016; and it is further,ORDERED that the orders dated May 16, 2016, and June 22, 2016, are affirmed; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.In October 2004, the plaintiff obtained a loan from Washington Mutual Bank, FA, which was secured by a mortgage on real property located in Old Westbury. In March 2008, the defendant Deutsche Bank National Trust Company (hereinafter the defendant), as Washington Mutual Bank, FA’s assignee, accelerated the debt by commencing an action to foreclose the mortgage (hereinafter the 2008 foreclosure action). In April 2009, the defendant commenced a second action to foreclose the same mortgage (hereinafter the 2009 foreclosure action). The 2008 foreclosure action was discontinued in January 2012, and the 2009 foreclosure action was dismissed as abandoned pursuant to CPLR 3215 in September 2012.On November 19, 2015, the plaintiff commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage. The plaintiff moved for summary judgment on the complaint, and the defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against it. In orders dated April 12, 2016, and May 16, 2016, the Supreme Court, in both orders, granted the plaintiff’s motion for summary judgment, denied the defendant’s cross motion, and directed the Nassau County Clerk to cancel and discharge of the record the mortgage.The defendant moved for leave to renew with respect to the plaintiff’s motion and its cross motion. In an order dated June 22, 2016, the Supreme Court denied the defendant’s motion for leave to renew.Pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired, provided that the mortgagee or its successor is not in possession of the subject real property at the time the action to cancel and discharge the mortgage is commenced (see RPAPL 1501[4]; Lubonty v. U.S. Bank N.A., 159 AD3d 962, 963). An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4]; Lubonty v. U.S. Bank N.A., 159 AD3d at 963). ”[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt” (Lubonty v. U.S. Bank N.A., 159 AD3d at 963 [internal quotation marks omitted]).Here, the plaintiff met her prima facie burden for summary judgment on her complaint by establishing that the commencement of a new foreclosure action would be time-barred by the applicable six-year statute of limitations (see U.S. Bank N.A. v. Martin, 144 AD3d 891, 891; JBR Constr. Corp. v. Staples, 71 AD3d 952, 953). Thus, the burden shifted to the defendant to raise a triable issue of fact as to whether the statute of limitations was tolled or revived (see JBR Constr. Corp. v. Staples, 71 AD3d at 953).“General Obligations Law §17-101 effectively revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt” (Lynford v. Williams, 34 AD3d 761, 762; see Mosab Constr. Corp. v. Prospect Park Yeshiva, Inc., 124 AD3d 732, 733). To constitute a valid acknowledgment, a “writing must be signed and recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it” (Sichol v. Crocker, 177 AD2d 842, 843 [internal quotation marks omitted]; see U.S. Bank N.A. v. Martin, 144 AD3d at 892-893; Mosab Constr. Corp. v. Prospect Park Yeshiva, Inc., 124 AD3d at 733).Contrary to the defendant’s contention, the plaintiff’s letter accompanying her request for the defendant to authorize a short sale of the property, and the other documents relied on by the defendant, did not constitute an unqualified acknowledgment of the debt sufficient to reset the statute of limitations (see U.S. Bank, N.A. v. Kess, 159 AD3d 767, 768; U.S. Bank N.A. v. Martin, 144 AD3d at 892-893; Hakim v. Peckel Family Ltd. Partnership., 280 AD2d 645; Sichol v. Crocker, 177 AD2d at 843). The plaintiff’s letter, while arguably acknowledging the existence of the mortgage, disclaimed any intent to pay it with the plaintiff’s own funds (see Lew Morris Demolition Co. v. Board of Educ. of City of N.Y., 40 NY2d 516, 520-521; U.S. Bank, N.A. v. Kess, 159 AD3d at 768-769; Sichol v. Crocker, 177 AD2d at 843). Thus, the defendant failed to raise a triable issue of fact in opposition to the plaintiff’s motion for summary judgment and, with respect to its cross motion, the defendant failed to establish its prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against it.We agree with the Supreme Court’s denial of the defendant’s motion for leave to renew with respect to the plaintiff’s motion and its cross motion. The defendant did not provide a reasonable justification for the failure to present the new facts in opposition to the plaintiff’s motion and in support of its cross motion (see CPLR 2221[e][3]; Flagstar Bank, FSB v. Damaro, 145 AD3d 858, 859; Matter of Kopicel v. Schnaier, 145 AD3d 599, 599; Cioffi v. S.M. Foods, Inc., 142 AD3d 526, 530; Fardin v. 61st Woodside Assoc., 125 AD3d 593; Jovanovic v. Jovanovic, 96 AD3d 1019, 1020; Rowe v. NYCPD, 85 AD3d 1001, 1003; Foley v. Roche, 68 AD2d 558, 568). In any event, the new evidence submitted by the defendant would not have changed the prior determination (see Deutsche Bank Natl. Trust Co. v. Adrian, 157 AD3d 934, 935; Wells Fargo Bank, N.A., v. Eisler, 118 AD3d 982, 983; EMC Mtge. Corp. v. Patella, 279 AD2d 604). Contrary to the defendant’s contention, the court providently exercised its discretion in considering the plaintiff’s untimely opposition papers to the defendant’s motion for leave to renew (see CPLR 2004, 2214; Fernandez v. City of Yonkers, 139 AD3d 895, 896).Accordingly, we agree with the Supreme Court’s determination to grant the plaintiff’s motion for summary judgment on the complaint, deny the defendant’s cross motion for summary judgment dismissing the complaint insofar as asserted against it, and deny the defendant’s motion for leave to renew.BALKIN, J.P., AUSTIN, HINDS-RADIX and CONNOLLY, JJ., concur.By Balkin, J.P.; Miller, Hinds-Radix and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Percy Ramos, ap — (Ind. No. 16-00064)Mark Diamond, New York, NY, for appellant.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Westchester County (Barbara Gunther Zambelli, J.), rendered September 20, 2016, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. Upon the appeal from the judgment, the duration of the orders of protection issued at the time of sentencing will be reviewed as a matter of discretion in the interest of justice (see CPL 470.15[6][a]).ORDERED that upon the appeal from the judgment, so much of the orders of protection as directed that they remain in effect until and including September 20, 2037, are vacated, on the law and as a matter of discretion in the interest of justice, and the matter is remitted to the County Court, Westchester County, for a new determination of the duration of the orders of protection consistent herewith; and it is further,ORDERED that the judgment is affirmed.The defendant validly waived his right to appeal (see People v. Bradshaw, 18 NY3d 257, 264-267; People v. Ramos, 7 NY3d 737, 738; People v. Lopez, 6 NY3d 248, 255; People v. Hidalgo, 91 NY2d 733, 735; People v. Brown, 122 AD3d 133, 142). The defendant’s valid waiver of his right to appeal forecloses appellate review of his challenge to the factual sufficiency of his plea allocution (see People v. Simpson, 152 AD3d 627, 627; People v. Smith, 146 AD3d 904, 904; People v. Thompson, 143 AD3d 1007, 1008).The defendant’s contention that his plea was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Smith, 146 AD3d at 904; People v. Magnotta, 137 AD3d 1303, 1303). However, the defendant failed to preserve this contention for appellate review, since he did not move to vacate his plea or otherwise raise this issue before the County Court (see People v. Smith, 146 AD3d at 904-905; People v. Narbonne, 131 AD3d 626, 627). Contrary to the defendant’s contention, the “rare case” exception to the preservation requirement does not apply here because the defendant’s allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea (People v. Lopez, 71 NY2d 662, 666; see People v. Davis, 24 NY3d 1012, 1013; People v. Stone, 91 AD3d 977, 977).In any event, the defendant’s contention that his plea was not knowing, voluntary, and intelligent is without merit. Contrary to the defendant’s contention, the Court of Appeals has “never held that a plea is effective only if a defendant acknowledges committing every element of the pleaded-to offense… or provides a factual exposition for each element of the pleaded-to offense” (People v. Seeber, 4 NY3d 780, 781; see People v. Goldstein, 12 NY3d 295, 301). The Court of Appeals has stated that “no catechism is required in connection with the acceptance of a plea” (People v. Goldstein, 12 NY3d at 301; see People v. Seeber, 4 NY3d at 781), and has “refused to disturb pleas by canny defendants even when there has been absolutely no elicitation of the underlying facts of the crime” (People v. Goldstein, 12 NY3d at 301, citing People v. Fooks, 21 NY2d 338, 350). Rather, “[i]t is enough that the allocution shows that the defendant understood the charges and made an intelligent decision to enter a plea” (People v. Goldstein, 12 NY3d at 301). Here, the record of the plea proceeding demonstrates that the defendant understood the charges and made an intelligent decision to enter a plea (see id.; People v. Woods, 147 AD3d 1156, 1157; People v. Nichols, 77 AD3d 1339, 1340).The defendant’s contentions regarding the validity and duration of two orders of protection issued at the time of sentencing survive his appeal waiver (see People v. Kennedy, 151 AD3d 1079, 1079; People v. Bernardini, 142 AD3d 671, 671). Furthermore, the validity and duration of the orders of protection, which were issued upon the defendant’s conviction, are issues properly before this Court on the appeal from the judgment (see People v. Nieves, 2 NY3d 310, 315). However, those contentions are unpreserved for appellate review, since the defendant did not raise them at sentencing or move to amend the final orders of protection (see id. at 316-317; People v. Rodriguez, 157 AD3d 971; People v. O’Connor, 136 AD3d 945, 945; People v. Ray, 67 AD3d 711, 711). Nevertheless, we reach these issues in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]; People v. Ortiz, 25 AD3d 811, 812).We agree with the County Court’s issuance of an order of protection in favor of an eyewitness to the crime in accordance with CPL 530.13(4). However, as the People correctly concede, the duration of both orders of protection exceeded the maximum period permissible under CPL 530.13(4)(A). Accordingly, we vacate so much of the orders of protection as directed that they remain in effect until and including September 20, 2037, and remit the matter to the County Court, Westchester County, for a new determination of the duration of the orders of protection in accordance with CPL 530.13(4)(A) (see People v. Palaguachi, 35 AD3d 767, 767-768; People v. Ortiz, 25 AD3d at 812).BALKIN, J.P., MILLER, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Austin, Lasalle and Iannacci, JJ.PEOPLE, etc., res, v. John Woods, ap — (Ind. No. 4822/96)John Woods, Stormville, NY, appellant pro se.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Camille O’Hara Gillespie of counsel), for respondent.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated August 7, 2000 (People v. Woods, 275 AD2d 332), determining an appeal from a judgment of the Supreme Court Kings Court, rendered April 17, 1997.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).RIVERA, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Lasalle, JJ.PEOPLE, etc., res, v. Ronnie Duren, ap — (Ind. No. 1323/11)Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated July 15, 2015 (People v. Duren, 130 AD3d 842), determining an appeal from a judgment of the Supreme Court, Nassau County, rendered December 12, 2012, as amended January 16, 2013.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.By Rivera, J.P.; Miller, Barros and Connolly, JJ.PEOPLE, etc., res, v. Maximo Marin, ap — (Ind. No. 1029/10)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald D. Hollie, J.), rendered October 3, 2011, convicting him of reckless endangerment in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is reversed, on the facts, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent with CPL 160.50.This case arises out of an incident occurring on December 15, 2009, when the defendant inadvertently shot his friend Fernando Morales in the leg. At the joint trial of the defendant and Morales, who was charged, inter alia, with criminal possession of a weapon in the second degree, the People relied on statements given to the police by Morales and the defendant. Morales testified in his own defense.According to Morales, he found a gun on a park bench. The gun was wrapped inside a paper bag, which was inside a black grocery bag. Morales was concerned about the safety of children in the park and intended to bring the gun to a police precinct station house. Before doing so, Morales first stopped at the defendant’s home, which was near the station house, to ask the defendant to accompany him to the station house. When Morales arrived at the defendant’s home, he placed the bag containing the gun on a shelf, and then greeted the defendant and the defendant’s friend, who were both drinking beer. Morales informed the defendant that he had found the gun. Morales then got a beer and sat down on a futon. Morales eventually fell asleep. He awoke when he felt a burning pain in his leg. Morales saw the defendant holding the gun, and asked, “[W]hat the hell did you just do?” The defendant, who was looking at the gun, appeared “scared,” and said, “I’m sorry.” The defendant then went downstairs and placed the gun in the garbage can. After Morales tended to his leg, he went downstairs and took the gun out of the garbage can, hailed a taxi cab, and brought the gun home with him. Later, Morales contacted the defendant and asked him to accompany him to the hospital, which the defendant did.Morales was treated at the hospital, and X rays revealed 15 to 20 metallic pellets in the right knee and femur consistent with a gunshot wound.The defendant’s statement to the police was consistent with Morales’s version of events. The defendant stated that, after Morales fell asleep on the futon, he wanted to see the firearm so he picked it up. While he was holding it, “it a shot [sic].” He stated that he accidentally shot his friend in the leg.The gun was recovered from Morales’s home. The defendant consented to a search of his home, and no weapons or ammunition were found inside. The People’s firearms expert testified that he needed to open the gun in order to determine whether it was loaded.The jury found the defendant guilty of reckless endangerment in the second degree (Penal Law §120.20) and assault in the third degree (Penal Law §120.00[2]). The defendant appeals from the judgment of conviction, arguing, inter alia, that the jury’s verdict, specifically its finding that the defendant acted recklessly, was against the weight of the evidence.Upon a defendant’s request, this Court must conduct a weight of the evidence review (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348). ”In conducting our weight of the evidence review, we have a responsibility to affirmatively review the record, independently assess all of the proof, substitute our own credibility determinations for those made by the jury in an appropriate case, determine whether the jury’s determination was factually correct, and acquit a defendant if we are not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt” (People v. Fonerin, 159 AD3d 717, 718; see People v. Delamota, 18 NY3d 107, 116-117; People v. Danielson, 9 NY3d at 348). ”[W]eight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” (People v. Danielson, 9 NY3d at 348).To convict the defendant of reckless endangerment in the second degree, the People were required to prove beyond a reasonable doubt that the defendant recklessly engaged in conduct which created a substantial risk of serious physical injury to another person (see Penal Law §120.20). To convict the defendant of assault in the third degree, the People were required to prove beyond a reasonable doubt that the defendant recklessly caused physical injury to another person (see Penal Law §120.00[2]).“A person acts recklessly with respect to a result or to a circumstance… when he [or she] is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law §15.05[3]). In determining whether a defendant acted recklessly, “it is defendant’s perception or nonperception of the risk of harm which is controlling” (People v. Licitra, 47 NY2d 554, 559 [internal quotation marks omitted]). However, “objective evidence of the surrounding circumstances may be weighed in making the factual determination” (id. at 559). ”Among the factors to be considered in a case such as this are the defendant’s familiarity with weapons in general, as well as the particular gun, and his knowledge of whether the gun is likely to be loaded” (id.; see People v. Stanfield, 36 NY2d 467, 472; cf. People v. Leonardo, 89 AD2d 214, 218, affd 60 NY2d 683).Here, the People failed to prove beyond a reasonable doubt that the defendant was aware of and consciously disregarded a substantial risk that his conduct would cause physical injury to another person. The People did not introduce evidence that the defendant was familiar with weapons, or the particular gun. Indeed, the gun was brought to the defendant’s home by Morales, and it is undisputed that the gun discharged as the defendant handled it out of curiosity. There was no evidence from which it could be inferred that the defendant knew the gun was loaded with live ammunition, or even knew how the particular gun operated. There was no evidence introduced that the defendant was aware of and consciously disregarded the risk that the gun might misfire (see People v. Evans, 104 AD3d 1286, 1287). Indeed, Morales testified that the defendant appeared “scared” when the gun discharged and that the defendant immediately stated that he was “sorry.” The defendant attempted to dispose of the gun and helped the victim get medical care. Contrary to the People’s contention, there was no testimony that the defendant was pointing the gun at Morales when it discharged, and there was no evidence introduced establishing that the only way the pellets could have struck Morales’s leg was by pointing the gun directly at Morales.Upon the exercise of our factual review power (see CPL 470.15), we determine that an acquittal of reckless endangerment in the second degree and assault in the third degree would not have been unreasonable. Giving the evidence the weight it should be accorded, we find that the People failed to establish, beyond a reasonable doubt, that the defendant recklessly engaged in conduct which created a substantial risk of serious physical injury to another person (see Penal Law §120.20), or that the defendant recklessly caused physical injury to another person (see Penal Law §120.00[2]). Thus, we determine that the jury was not justified in finding the defendant guilty of reckless endangerment in the second degree and assault in the third degree beyond a reasonable doubt. Accordingly, the judgment must be reversed and the indictment dismissed (see generally People v. Romero, 7 NY3d 633).In light of our determination, we need not address the defendant’s remaining contention.MILLER, BARROS and CONNOLLY, JJ., concur.RIVERA, J.P., dissents, and votes to affirm the judgment, with the following memorandum:I respectfully dissent and vote to affirm the judgment of conviction.On December 15, 2009, the defendant shot the victim in the right knee with a gun. According to a statement provided by the defendant to law enforcement, the defendant wanted to “see” the gun so “he picked it up,” and “while he was holding it a shot [sic]—he accidently shot his friend in the leg.” The defendant was convicted, upon a jury verdict, of reckless endangerment in the second degree (Penal Law §120.20) and assault in the third degree (Penal Law §120.00[2]). He was sentenced to three years’ probation.“[W]eight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt” (People v. Danielson, 9 NY3d 342, 348). Contrary to the determination of my colleagues in the majority, I am satisfied that the verdict of guilt is not against the weight of the evidence (see CPL 470.15[5]; People v. Romero, 7 NY3d 633). According 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), in my view, a jury could logically conclude that the defendant possessed the culpable mental state of recklessness.“A person acts recklessly with respect to a result… when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur… [and] [t]he risk [is] of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law §15.05[3]). Here, the defendant knew that the object he was holding was a gun. Even someone who is presumably unfamiliar with guns is well-acquainted with a gun’s potential danger and, in particular, aware of the risks associated with handling a gun, namely, that the gun may be loaded, may be discharged, and, upon discharging, may result in injury or death. The evidence adduced at trial was also factually sufficient to show that the defendant consciously disregarded that “substantial and unjustifiable” risk by handling the gun in such a manner so as to cause it to discharge and strike the victim (see People v. Licitra, 47 NY2d 554, 559 ["Although the discharge of the weapon may well have been unintentional, the jury was entitled to consider whether the risk created by defendant's actions was substantial, unjustifiable and constituted a gross deviation from the standard of conduct that a reasonable person would have observed"]; Matter of Koron B., 303 AD2d 314 [determining that the Family Court's juvenile delinquency finding was not against the weight of the evidence where the appellant "removed the magazine from a pistol, pointed the pistol in the complaining witness's general direction and squeezed the trigger, causing a chambered round to strike the complaining witness," as the evidence warranted the conclusion that the "appellant consciously disregarded the substantial and unjustifiable risk that, due to his inexperience with firearms, he might be mistaken as to whether the pistol was still capable of firing"]).Accordingly, I find that the evidence is of such weight and credibility as to convince me that the jury was justified in finding the defendant guilty beyond a reasonable doubt. There is no basis to set aside the jury’s verdict. Accordingly, I would affirm the judgment.By Scheinkman, P.J.; Balkin, Sgroi, Nelson and Christopher, JJ.PEOPLE, etc., res, v. Shavon Robinson, ap — (Ind. No. 6011/14)Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Kings County (Matthew D’Emic, J.), imposed March 30, 2016, upon her plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.A defendant who has validly waived the right to appeal cannot invoke this Court’s interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez, 6 NY3d 248, 255). Here, however, this Court is not precluded from exercising its interest of justice jurisdiction because the defendant’s purported waiver of her right to appeal was invalid. The record does not demonstrate that the defendant understood the nature of the right she was being asked to waive or the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. Brown, 122 AD3d 133, 137-138, 141). Moreover, although the defendant executed a written appeal waiver form, the transcript of the plea proceeding demonstrates that the Supreme Court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel, or whether she was even aware of its contents (see People v. Santeramo, 153 AD3d 1286, 1287; People v. Brown, 122 AD3d at 145). Under the circumstances here, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive her right to appeal (see People v. Johnson, 157 AD3d 964, 965; People v. Brown, 122 AD3d 133).Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., BALKIN, SGROI, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Austin, Miller, Hinds-Radix and Maltese, JJ.PEOPLE, etc., res, v. Diasia F. (Anonymous), ap — (Ind. Nos. 33/16, 35/16)Paul Skip Laisure, New York, NY (Alice R. B. Cullina of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Danielle S. Fenn of counsel), for respondent.Appeals by the defendant, as limited by her motion, from two sentences of the Supreme Court, Queens County (Joseph A. Zayas, J.), both imposed November 7, 2016, upon her pleas of guilty, on the ground that the sentences were excessive.ORDERED that the sentences are affirmed.The defendant pleaded guilty to robbery in the first degree under one indictment and to robbery in the second degree under a separate indictment. She was adjudicated a youthful offender and sentenced to indeterminate terms of imprisonment of 1 to 3 years on each count, to run concurrently. On appeal, the defendant contends that her sentences were excessive. The People argue that the defendant’s contention is precluded by the defendant’s waiver of her right to appeal.“A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v. Lopez, 6 NY3d 248, 256; see People v. Maracle, 19 NY3d 925, 926; People v. Bradshaw, 18 NY3d 257, 264). Here, the defendant’s waiver of her right to appeal was invalid and, therefore, does not preclude appellate review of her excessive sentence claim (see People v. Bradshaw, 18 NY3d at 265; People v. Paz, 126 AD3d 1011; People v. Zaruma, 120 AD3d 1273; People v. Pallateri, 120 AD3d 514). During the plea proceeding, the Supreme Court stated that the defendant was waiving her right to appeal anything related to the “gun” case when neither of the defendant’s crimes involved the use of a gun. Further, although the record on appeal reflects that the defendant executed written appeal waiver forms, the transcript of the plea proceeding shows that the court did not ascertain on the record whether the defendant had actually read the waivers (see People v. DeSimone, 80 NY2d 273, 283). Further, in light of the defendant’s young age, the fact that this was her first encounter with the criminal justice system, and her mental health diagnoses, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive her right to appeal (see People v. Seaberg, 74 NY2d 1, 11).Nevertheless, the sentences imposed were not excessive (see People v. Suitte, 90 AD3d 80).SCHEINKMAN, P.J., AUSTIN, MILLER, HINDS-RADIX and MALTESE, JJ., concur.By Chambers, J.P.; Cohen, Duffy and Connolly, JJ.Frederick Lipinsky, ap, v. Anthony Yarusso, res — (Index No. 8262/15)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (William G. Ford, J.), dated July 31, 2017. The order granted the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is denied.On June 24, 2014, the defendant’s dog, then approximately 10 years old, allegedly bit the plaintiff’s left thumb. The plaintiff and the defendant worked together and were social friends. As the plaintiff had been to the defendant’s residence 20 to 40 times prior to the incident, he was familiar with the dog. The plaintiff commenced this personal injury action against the defendant. Subsequently, the defendant moved for summary judgment dismissing the complaint, contending that his dog did not have vicious propensities and that, in any event, he was not aware of any such propensities. The Supreme Court granted the motion, and the plaintiff appeals.“To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog… knew or should have known of such propensities” (Palumbo v. Nikirk, 59 AD3d 691, 691; see Petrone v. Fernandez, 12 NY3d 546, 550; Collier v. Zambito, 1 NY3d 444, 446; Ostrovsky v. Stern, 130 AD3d 596). “Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation” (Bard v. Jahnke, 6 NY3d 592, 596-597 [internal quotation marks omitted]). ”Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm” (Hodgson-Romain v. Hunter, 72 AD3d 741, 741; see Bard v. Jahnke, 6 NY3d at 597; Velez v. Andrejka, 126 AD3d 685, 686).Here, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that his dog did not have vicious propensities and, in any event, that he neither knew nor should have known of any such propensities (see Cintorrino v. Rowsell, __ AD3d __, 2018 NY Slip Op 05446 [2d Dept 2018]; Ioveno v. Schwartz, 139 AD3d 1012; Roche v. Bryant, 81 AD3d 707, 708; Ayres v. Martinez, 74 AD3d 1002; Lugo v. Angle of Green, 268 AD2d 567). However, in opposition to the motion, the plaintiff raised triable issues of fact as to whether the defendant’s dog had vicious propensities, and whether the defendant knew or should have known of the dog’s alleged vicious propensities (see McKnight v. ATA Hous. Corp., 94 AD3d 957, 957-958; Moriano v. Schmidt, 133 AD2d 72). According to an affidavit of the plaintiff’s neighbor Michael Walters, submitted in opposition to the motion, on two occasions prior to the incident, the defendant warned Walters to be careful near the dog because he bites. This affidavit was sufficient to raise a triable issue of fact as to whether the defendant had actual and/or constructive notice that the dog had vicious propensities (see McKnight v. ATA Hous. Corp., 94 AD3d at 957-958; Miller v. Isacoff, 39 AD3d 718, 719; Bennett v. White, 37 AD3d 630, 631). Contrary to the defendant’s contention, Walters’ affidavit was admissible, notwithstanding that it was subscribed and sworn to out of state and not accompanied by a certificate of conformity as required by CPLR 2309(c), as such a defect is not fatal, and no substantial right of the defendant was prejudiced by disregarding the defect (see CPLR 2001; Voskoboinyk v. Trebisovsky, 154 AD3d 997, 998; Bank of N.Y. Mellon v. Vytalingam, 144 AD3d 1070, 1071). The defendant’s contention that Walters’ affidavit should not be considered because Walters had not previously been disclosed as a witness, raised for the first time on appeal, is not properly before this Court (see Warren v. Carreras, 133 AD3d 592, 594).Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint.CHAMBERS, J.P., COHEN, DUFFY and CONNOLLY, JJ., concur.By Chambers, J.P.; Sgroi, Maltese and Connolly, JJ.Jessica Rivera, ap, v. Town of Wappinger, et al., respondents def — (Index No. 5665/13)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated January 20, 2016. The order, insofar as appealed from, granted the separate motions of the defendants Healey Brothers, Inc., and Michael C. Ayers and the defendant Town of Wappinger for summary judgment dismissing the complaint insofar as asserted against each of them.ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the separate motions of the defendants Healey Brothers, Inc., and Michael C. Ayers and the defendant Town of Wappinger for summary judgment dismissing the complaint insofar as asserted against each of them are denied.The plaintiff allegedly was injured when, at the intersection of Meadowood Lane and Old Hopewell Road in the Town of Wappinger, a vehicle she was operating collided with a vehicle owned by the defendant Healey Brothers, Inc., and operated by the defendant Michael C. Ayers (hereinafter together the driver defendants). At the time of the collision, the plaintiff was turning right from Meadowood Lane onto Old Hopewell Road, and Ayers was traveling straight on Old Hopewell Road. Meadowood Lane was controlled by a stop sign, while Old Hopewell Road had no traffic control device at that intersection. Although the plaintiff remembered very little about the accident, according to Ayers, the plaintiff did not stop at the stop sign.The plaintiff subsequently commenced this action to recover damages for personal injuries against, among others, the driver defendants and the Town. The plaintiff alleged that the Town failed to properly maintain foliage on the corner of Meadowood Lane so as to prevent it from obscuring the stop sign on that road. The driver defendants moved, and the Town separately moved, for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted the motions, and the plaintiff appeals.To demonstrate their entitlement to judgment as a matter of law, the driver defendants had the burden of establishing, prima facie, that Ayers was not at fault in the happening of the subject accident (see Gezelter v. Pecora, 129 AD3d 1021, 1023; Boulos v. Lerner-Harrington, 124 AD3d 709). Although the operator of a motor vehicle traveling with the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield, the operator with the right-of-way also has an obligation to use reasonable care to avoid an accident (see Gezelter v. Pecora, 129 AD3d at 1023; see also Mark v. New York City Tr. Auth., 150 AD3d 980, 981-982; Blair v. Coleman, 146 AD3d 743, 744).The driver defendants failed to eliminate triable issues of fact as to whether Ayers contributed to the happening of the accident. In particular, Ayers testified at his deposition that he was traveling 40 miles per hour as he approached the intersection, and that although nothing obstructed his view of the intersection, he did not see the plaintiff’s vehicle until he was one car length from the intersection. Further, Ayers could not say whether he took any evasive action to avoid the collision. Under the circumstances, it cannot be said as a matter of law that Ayers used reasonable care to avoid the accident (see Inesta v. Florio, 159 AD3d 682; Blair v. Coleman, 146 AD3d at 744; Gezelter v. Pecora, 129 AD3d at 1023). Since the driver defendants failed to establish their prima facie entitlement to judgment as a matter of law, their motion should have been denied regardless of the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).“A municipality has a duty to maintain its roads in a reasonably safe condition, and that duty includes the trimming of trees in highway rights-of-way to assure the visibility of stop signs” (Nichols-Sisson v. Windstar Airport Serv., Inc., 99 AD3d 770, 773; see D’Onofrio-Ruden v. Town of Hempstead, 29 AD3d 512, 513; Finn v. Town of Southampton, 289 AD2d 285, 286). No liability will attach for the breach of that duty, however, unless the municipality’s failure to maintain its roads in a reasonable condition is a proximate cause of the accident (see Carlo v. State of New York, 51 AD3d 618).Contrary to the Town’s contention, there is evidence in the record that the foliage which allegedly obscured the stop sign was located within the right-of-way of a Town road. Thus, the Town failed to demonstrate, prima facie, that it was Dutchess County’s, not the Town’s, responsibility to trim the growth of any foliage obstructing the sign.The Town further failed to eliminate triable issues of fact as to whether any such obstruction of the stop sign was a proximate cause of the accident. ”Such proximate cause may be found only where it is shown that ‘it was the very [obstruction] of the stop sign… which rendered the driver[ ] unaware of the need to stop before proceeding across the intersection’” (Noller v. Peralta, 94 AD3d 830, 832, quoting Applebee v. State of New York, 308 NY 502, 507). Where the driver “had all the warning, all the notice of danger, that a stop sign would have afforded,” there is no basis for finding that the obstruction of a sign caused the driver “to do anything other than [he or] she would have done had it been present” (Applebee v. State of New York, 308 NY at 508; see Noller v. Peralta, 94 AD3d at 832).The Town failed to demonstrate, prima facie, that despite the obstructed stop sign, the plaintiff, who was lost in an unfamiliar area, “had all the warning, all the notice of danger, that a stop sign would have afforded” (Applebee v. State of New York, 308 NY at 508; cf. Chang v. City of New York, 142 AD3d 401; Dalzell v. County of Dutchess, 258 AD2d 615; Koester v. State of New York, 90 AD2d 357). In particular, the Town presented no definitive evidence of either the plaintiff’s knowledge of the need to stop at the intersection, or conditions necessitating that she bring her vehicle to a complete stop prior to entering the intersection. Viewing the record evidence in the light most favorable to the plaintiff, and resolving all reasonable inferences in her favor (see Derise v. Jaak 773, Inc., 127 AD3d 1011; Santiago v. Joyce, 127 AD3d 954), the Town failed to eliminate issues of fact as to whether the obstruction of the stop sign contributed, to some degree, to the happening of the accident.Accordingly, the Town’s motion should have been denied without regard to the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853).CHAMBERS, J.P., SGROI, MALTESE and CONNOLLY, JJ., concur.By Leventhal, J.P.; Austin, Duffy and Barros, JJ.Stephanie Atken, ap, v. Gordon Jackson, res — (Index No. 20179/14)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (W. Gerard Asher, J.), dated December 5, 2016. The order granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident.ORDERED that the order is affirmed, with costs.This action arises from a motor vehicle accident that occurred on January 10, 2014, at or near the intersection of Lynn Avenue and Woodridge Road in Southampton. The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in the accident. The defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the accident. The Supreme Court granted the defendant’s motion, and the plaintiff appeals.The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact, particularly since neither she nor her physicians offered a reasonable explanation for a lengthy gap in treatment from May 2014 to the summer of 2015 (see Pommells v. Perez, 4 NY3d 566, 574; Maffei v. Santiago, 63 AD3d 1011, 1012).Accordingly, we agree with the Supreme Court’s determination to grant the defendant’s motion for summary judgment dismissing the complaint.LEVENTHAL, J.P., AUSTIN, DUFFY and BARROS, JJ., concur.By Leventhal, J.P.; Cohen, Hinds-Radix and Connolly, JJ.PEOPLE, etc., res, v. Albert Newton, ap — (Ind. No. 544/13)Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated April 12, 2017 (People v. Newton, 149 AD3d 874), affirming a judgment of the Supreme Court, Queens County, rendered April 16, 2014.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).LEVENTHAL, J.P., COHEN, HINDS-RADIX and CONNOLLY, JJ., concur.By Scheinkman, P.J.; Dillon, Cohen and Christopher, JJ.PEOPLE, etc., res, v. Charlene Ruiz, ap — (Ind. No. 14-01480)Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered January 7, 2016, convicting her of gang assault in the first degree and tampering with physical evidence, upon her plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant failed to preserve for appellate review her contention that her plea was not knowing, voluntary, and intelligent, since she withdrew her motion to vacate her plea and failed to otherwise raise this issue before the Supreme Court (see People v. Clarke, 93 NY2d 904, 906; People v. Morgado, 144 AD3d 709, 710). In any event, contrary to the defendant’s contention, the record demonstrates that she knowingly, voluntarily, and intelligently pleaded guilty and waived her right to appeal (see People v. Seeber, 4 NY3d 780, 781; People v. Smith, 146 AD3d 904, 904-905). The defendant’s valid waiver of her right to appeal forecloses appellate review of her challenge to the factual sufficiency of her plea allocution (see People v. Mendoza, 153 AD3d 1365; People v. Thompson, 143 AD3d 1007).SCHEINKMAN, P.J., DILLON, COHEN and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Dillon, Nelson and Christopher, JJ.Alla Dudnik ap, v. 1055 Hylan Offices, LLC, res — (Index No. 101168/15)In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Richmond County (Kim Dollard, J.), entered March 27, 2017. The judgment, upon an order of the same court dated January 27, 2017, granting the defendant’s motion for summary judgment dismissing the complaint, is in favor of the defendant and against the plaintiffs dismissing the complaint.ORDERED that the judgment is reversed, on the law, with costs, the defendant’s motion for summary judgment dismissing the complaint is denied, the complaint is reinstated, and the order is modified accordingly.On July 13, 2015, the plaintiff Alla Dudnik (hereinafter the injured plaintiff) allegedly was injured when she tripped on a pillar of a metal railing on the top landing of an exterior staircase of the defendant’s building in Staten Island. The accident occurred after the injured plaintiff exited the building through a door located next to an opening between the door and the railing. The opening was at the top of the staircase and provided access to the steps descending from the landing. According to the injured plaintiff, the opening was less than two feet wide. When the door was completely open, it blocked the opening leading to the stairs. The injured plaintiff testified at her deposition that she was attempting to reach the opening to access the steps when her left foot hit the pillar of the railing, causing her to fall.The injured plaintiff, and her husband suing derivatively, commenced this personal injury action against the defendant. The defendant moved for summary judgment dismissing the complaint, contending, inter alia, that the railing that caused the injured plaintiff to trip and fall was open and obvious and not inherently dangerous. The Supreme Court granted the motion, determining that the condition was open and obvious. A judgment was entered in favor of the defendant and against the plaintiffs dismissing the complaint. The plaintiffs appeal.A defendant property owner has a duty to maintain its premises in a “reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Basso v. Miller, 40 NY2d 233, 241 [internal quotation marks omitted]). However, there is no duty to protect or warn of conditions that are not inherently dangerous and that are readily observable by the reasonable use of one’s senses (see Cupo v. Karfunkel, 1 AD3d 48, 51). Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury (see Julianne Oldham-Powers v. Longwood Cent. Sch. Dist., 123 AD3d 681, 682; Pellegrino v. Trapasso, 114 AD3d 917, 918; Gutman v. Todt Hill Plaza, LLC, 81 AD3d 892, 892-893; Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 AD3d 1061, 1062).Here, the defendant failed to establish, prima facie, that it maintained its premises in a reasonably safe condition. Thus, the Supreme Court should have denied the defendant’s motion regardless of the sufficiency of the plaintiffs’ opposition papers (see generally Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). Contrary to the defendant’s contention, it cannot be said as a matter of law that the metal railing, which was open and obvious, was not inherently dangerous given its location within the accident site (see Lee v. Acevedo, 152 AD3d 577, 578; Salomon v. Prainito, 52 AD3d 803, 805). The defendant also failed to establish, prima facie, that it did not have notice of the alleged dangerous condition (see Medina v. La Fiura Dev. Corp., 69 AD3d 686, 686).In light of our determination, we need not reach the parties’ remaining contentions as to whether the staircase was in violation of any applicable provisions of the Administrative Code of the City of New York.Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint.RIVERA, J.P., DILLON, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.IndyMac Venture, LLC, res, v. Todd Amus, et al., appellants def — (Index No. 58310/12)In an action to foreclose a mortgage, the defendants Todd Amus and Nora Amus appeal from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Westchester County (Francesca E. Connolly, J.), dated February 22, 2016. The order and judgment of foreclosure and sale, upon an order of the same court (Robert M. DiBella, J.) dated March 27, 2015, granting the plaintiff’s motion, inter alia, for summary judgment on the complaint insofar as asserted against those defendants, granted the plaintiff’s motion to confirm a referee’s report and for a judgment of foreclosure and sale and directed the sale of the subject premises.ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.The defendants Todd Amus and Nora Amus (hereinafter together the appellants) were the owners of the subject property, located in North Salem. They obtained a loan from IndyMac Bank, FSB (hereinafter the original lender), to finance the construction of a 12,000-square-foot extension to the property. On June 26, 2007, Todd Amus, as borrower, executed and delivered to the original lender a number of documents in connection with the loan (hereinafter collectively the loan documents), including an adjustable rate note (hereinafter the note) in the amount of $2,730,000, which was amended and supplemented by a residential construction loan addendum amending note (hereinafter the note addendum), and a residential construction loan agreement. To secure the obligations under the loan documents, the appellants executed and delivered to the original lender the subject construction loan mortgage (hereinafter the mortgage).In 2012, the plaintiff commenced this action to foreclose the mortgage, alleging that the appellants had defaulted under the terms of the loan documents by, inter alia, failing to make the required monthly interest payments, failing to complete the construction by November 25, 2009, as required, and failing to pay the property taxes as they came due, thereby allowing liens to be filed against the property. The appellants filed a verified answer with affirmative defenses, set-offs, and counterclaims. In a prior order, the Supreme Court granted all branches of a motion by the plaintiff pursuant to CPLR 3211 to dismiss the affirmative defenses, set-offs, and counterclaims, except for that branch which was to dismiss the eighth affirmative defense, alleging that the appellants were not in default.Subsequently, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the appellants and dismissing their eighth affirmative defense, and to appoint a referee to compute the amount due. The appellants opposed the motion. In an order dated March 27, 2015, the Supreme Court granted the motion. Thereafter, the court granted the plaintiff’s subsequent motion, inter alia, for a judgment of foreclosure and sale.“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” (Plaza Equities, LLC v. Lamberti, 118 AD3d 688, 689; see Deutsche Bank Natl. Trust Co. v. Iarrobino, 159 AD3d 670; Deutsche Bank Natl. Trust Co. v. Brewton, 142 AD3d 683, 684; Deutsche Bank Natl. Trust Co. v. Abdan, 131 AD3d 1001, 1002). At issue on this appeal is whether the plaintiff established the appellants’ default in meeting their obligations under the terms of the loan documents.The appellants contend, first, that they did not default in making interest payments on the dates alleged, because pursuant to the terms of the loan documents, monthly interest payments were not due to begin until January 1, 2010, a month after the date by which construction was to have been completed, i.e., after the “Construction Period.” There is no merit to this contention.“[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield v. Philles Records, 98 NY2d 562, 569; see G3-Purves St., LLC v. Thomson Purves, LLC, 101 AD3d 37, 40; Etzion v. Etzion, 84 AD3d 1015, 1016). ”Where the terms of an agreement are unambiguous, interpretation is a question of law for the court” (G3-Purves St., LLC v. Thomson Purves, LLC, 101 AD3d at 40; see Aivaliotis v. Continental Broker-Dealer Corp., 30 AD3d 446, 447). ”A written contract will be read as a whole, and every part will be interpreted with reference to the whole; and if possible it will be so interpreted as to give effect to its general purpose” (Matter of Westmoreland Coal Co. v. Entech, Inc., 100 NY2d 352, 358 [internal quotation marks omitted]; see Beal Sav. Bank v. Sommer, 8 NY3d 318, 324-325; CNR Healthcare Network, Inc. v. 86 Lefferts Corp., 59 AD3d 486, 489). It is important not to distort the meaning of a writing by placing “excessive emphasis… upon particular words or phrases” (South Rd. Assoc., LLC v. International Bus. Machs. Corp., 4 NY3d 272, 277; see Bailey v. Fish & Neave, 8 NY3d 523, 528; Matter of Westmoreland Coal Co. v. Entech, Inc., 100 NY2d at 358; Burlington Ins. Co. v. Utica First Ins. Co., 71 AD3d 712, 713; CNR Healthcare Network, Inc. v. 86 Lefferts Corp., 59 AD3d at 489).Here, pursuant to the note, Todd Amus agreed that he would “pay interest beginning on the Permanent Loan Commencement Date,” i.e., January 1, 2010, and would “make these payments every month until [he had] paid all the principal and interest and any other charges” he might owe under the note. However, Todd Amus also executed the note addendum, which was incorporated into and “deemed to amend and supplement the Note,” and in which he agreed to its terms “[n]otwithstanding anything to the contrary set forth in the Note.” The note addendum provided in section 2(A), entitled “Interest During the Construction Period,” that during the Construction Period, Todd Amus would “pay interest… on the amount advanced,” and that he would “make payments each month in the amount of the interest accrued for the prior month on or before the first (1st) day of each month.” In section 5 of the note addendum, entitled “EVENTS OF DEFAULT AND ACCELERATION OF THE DEBT,” Todd Amus agreed that the note holder could accelerate the debt and “declare the entire unpaid principal balance and accrued interest due and payable… if any payment of interest is not made when due during the Construction Period.”Thus, “according to the plain meaning” of the above-quoted terms (Greenfield v. Philles Records, 98 NY2d at 569), Todd Amus, as borrower, agreed that he was obligated to make interest payments to the note holder during the Construction Period, as interest accrued on the money advanced to him, and that the failure to make such payments when due would be deemed a default, upon which the note holder would be authorized to accelerate the debt.Contrary to the appellants’ contention, the plaintiff submitted evidence establishing, prima facie, that the appellants defaulted in making their monthly interest payments. In opposition, the appellants failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Zuckerman v. City of New York, 49 NY2d 557, 562).The appellants’ remaining contention is improperly raised for the first time on appeal.Accordingly, we agree with the Supreme Court’s determination to award the plaintiff summary judgment on the complaint insofar as asserted against the appellants and dismissing their eighth affirmative defense.RIVERA, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Sgroi, Maltese and Connolly, JJ.KM, etc. res, v. Fencers Club, Inc., appellant def — (Index No. 21342/12)Steven F. Goldstein, LLP, Carle Place, NY, for appellant.The Cochran Firm (Norman A. Olch, New York, NY, of counsel), for respondents.In an action to recover damages for personal injuries, etc., the defendant Fencers Club, Inc., appeals from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated May 13, 2016. The order denied the motion of that defendant for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Fencers Club, Inc., for summary judgment dismissing the complaint insofar as asserted against it is granted.The plaintiff KM (hereinafter the infant plaintiff) attended an after-school fencing program run by the defendant Fencers Club, Inc. (hereinafter Fencers Club). It is undisputed that the defendant Nitai Kfir, a fencing coach at Fencers Club, engaged in an unlawful sexual relationship with the infant plaintiff, for which Kfir pleaded guilty to felony charges and was sentenced to prison. The infant plaintiff, by her mother, and her mother individually, commenced this action to recover damages for personal and derivative injuries against Fencers Club and Kfir. As against Fencers Club, the plaintiffs sought to recover under theories of negligent hiring and supervision, negligent infliction of emotional distress, and respondeat superior. Following discovery, Fencers Club moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court denied the motion, and Fencers Club appeals.As an initial matter, Fencers Club established its prima facie entitlement to judgment as a matter of law dismissing the cause of action seeking to hold it liable under the doctrine of respondeat superior, as Kfir’s misconduct was committed for wholly personal motives, and not in furtherance of Fencers Club’s business and within the scope of his employment (see N.X. v. Cabrini Med. Ctr., 97 NY2d 247, 251-252). In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d 557, 562).A necessary element of a cause of action alleging negligent hiring or negligent supervision of an employee is that the “employer knew or should have known of the employee’s propensity for the conduct which caused the injury” (Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161; see Ronessa H. v. City of New York, 101 AD3d 947, 948; Sandra M. v. St. Luke’s Roosevelt Hosp. Ctr., 33 AD3d 875, 879). Here, Fencers Club established its prima facie entitlement to judgment as a matter of law by demonstrating that it had no knowledge of any propensity by Kfir to commit sexual misconduct, either prior to or during his employment with Fencers Club (see Shor v. Touch-N-Go Farms, Inc., 89 AD3d 830, 831-832; Ghaffari v. North Rockland Cent. School Dist., 23 AD3d 342, 344). The coaches, parents, and students of the club were shocked when they learned of the criminal misconduct, which took place outside of Fencers Club’s premises and in Kfir’s apartment. Although it was later revealed that Kfir gave massages to the infant plaintiff and another fencing student in a workout room, and that he made sexually provocative comments toward the infant plaintiff during fencing lessons, these incidents were never reported to Fencers Club. Much of the communication between the infant plaintiff and Kfir took place by cell phone or text message, outside of Fencers Club’s purview.In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d at 562). Although the plaintiffs point to the fact that Fencers Club did not conduct criminal background checks prior to hiring their instructors, “[t]here is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee” (Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d at 163; see Sandra M. v. St. Luke’s Roosevelt Hosp. Ctr., 33 AD3d at 879). Here, there was no evidence that Fencers Club had knowledge of any facts that would have caused a reasonably prudent person to conduct a criminal background check on Kfir. Moreover, the plaintiffs failed to come forward with any evidence that a criminal background check of Kfir would have revealed a propensity to commit sexual assault (see Day v. J. Vlachos Hellenic Serv. Sta., 2 AD3d 482).Further, Fencers Club established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging negligent infliction of emotional distress by demonstrating that it did not breach a duty of care owed to the infant plaintiff (see Peter T. v. Children’s Vil., Inc., 30 AD3d 582, 585-586). In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d at 562).In light of the foregoing, we need not reach Fencers Club’s alternative contention that it was not liable for Kfir’s conduct under a theory that he was an independent contractor.Accordingly, the Supreme Court should have granted Fencers Club’s motion for summary judgment dismissing the complaint insofar as asserted against it.CHAMBERS, J.P., SGROI, MALTESE and CONNOLLY, JJ., concur.By Scheinkman, P.J.; Balkin, Sgroi, Nelson and Christopher, JJ.PEOPLE, etc., res, v. Cody Delgado, ap — (Ind. No. 1077/16)Paul Skip Laisure, New York, NY (David L. Goodwin of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Joyce Adolfsen of counsel; Masha Simonova on the memorandum), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Martin P. Murphy, J.), imposed November 21, 2016, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 NY3d 337, 339-342; People v. Lopez, 6 NY3d 248, 256-257; cf. People v. Brown, 122 AD3d 133, 145-146). The defendant’s valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 NY3d at 255-256).SCHEINKMAN, P.J., BALKIN, SGROI, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.By Leventhal, J.P.; Cohen, Hinds-Radix and Iannacci, JJ.PEOPLE, etc., res, v. Andrea Benson, ap — (Ind. No. 14-00187)Salvatore C. Adamo, New York, NY, for appellant.Thomas P. Zugibe, District Attorney, New City, NY (Tina L. Guccione of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Rockland County (William A. Kelly, J.), rendered May 12, 2015, convicting her of murder in the second degree, upon her plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s contention that her plea of guilty was not entered knowingly, voluntarily, and intelligently is not preserved for appellate review because she did not move to vacate her plea or otherwise raise the issue before the Supreme Court (see CPL 470.05[2]; People v. Dancy, 156 AD3d 717; People v. Crosby, 133 AD3d 681). In any event, the contention is without merit, as the record of the plea proceedings demonstrates that the defendant’s plea was knowingly, voluntarily, and intelligently entered (see People v. Fiumefreddo, 82 NY2d 536; People v. Harris, 61 NY2d 9).The defendant’s purported waiver of her right to appeal was invalid because the Supreme Court’s “terse colloquy” at the plea allocution failed to sufficiently advise the defendant of the nature of her right to appeal (People v. Salgado, 111 AD3d 859, 859; see People v. Nugent, 109 AD3d 625), and thus, does not preclude appellate review of her excessive sentence claim. However, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).The defendant’s contention that she was denied the effective assistance of counsel is based, in part, on matter dehors the record and thus constitutes a “mixed claim” of ineffective assistance of counsel (see People v. Crosby, 133 AD3d 681; People v. Williams, 120 AD3d 721, 723; People v. Maxwell, 89 AD3d 1108, 1109). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 NY2d 824, 825). Since the defendant’s claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Crosby, 133 AD3d at 682; People v. Duren, 130 AD3d 842; People v. Williams, 120 AD3d at 724; People v. Addison, 107 AD3d 730, 732; People v. Freeman, 93 AD3d 805, 806).LEVENTHAL, J.P., COHEN, HINDS-RADIX and IANNACCI, JJ., concur.By Leventhal, J.P.; Barros, Nelson and Iannacci, JJ.PEOPLE, res, v. Bjorn Daley, ap — The Legal Aid Society, New York, NY (Steven J. Miraglia of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.Appeal by the defendant from an order of the Supreme Court, Kings County (Martin P. Murphy), dated August 27, 2014, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.Contrary to the defendant’s contention, the Supreme Court did not improvidently exercise its discretion in denying his application for a downward departure from the presumptive risk assessment level under the Sex Offender Registration Act (see Correction Law article 6-C; hereinafter SORA). 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 [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]). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an over-assessment of the defendant’s dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 NY3d at 861; People v. Champagne, 140 AD3d 719, 720).The defendant’s satisfactory conduct during his incarceration, including his completion of certain rehabilitative programs and sex offender treatment, were facts adequately taken into account under the SORA Guidelines, as the defendant was assessed zero points both for risk factors 12 (acceptance of responsibility) and 13 (conduct while confined/supervised) under the risk assessment instrument (see People v. Morrison, 156 AD3d 831, 832; People v. Santiago, 154 AD3d 979; People v. Alexander, 144 AD3d 1008; People v. DeDona, 102 AD3d 58, 71; People v. Walker, 47 AD3d 692, 694). The defendant has otherwise failed to set forth any mitigating factors warranting a downward departure.Accordingly, the defendant was properly designated a level two sex offender.LEVENTHAL, J.P., BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Dillon, J.P.; Balkin, Miller and Connolly, JJ.John Stevens, res, v. Judith Stepanski def, Greenville Inn, Inc., ap — (Index No. 2568/13)In an action to recover damages for personal injuries, the defendant Greenville Inn, Inc., appeals from an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated April 11, 2016. The order, insofar as appealed from, denied that branch of the motion of the defendant Greenville Inn, Inc., which was pursuant to CPLR 317 to vacate a judgment of the same court dated June 1, 2015, entered upon its failure to appear or answer the complaint.ORDERED that the order is affirmed insofar as appealed from, with costs.On March 25, 2013, the plaintiff commenced this action against Greenville Inn, Inc. (hereinafter Greenville), among others, to recover damages for personal injuries. On March 27, 2013, the plaintiff served Greenville by delivering a copy of the summons and complaint to the Secretary of State pursuant to Business Corporation Law §306. Greenville’s address on file with the Secretary of State was “The Greenville Inn, Inc., James Delaney, 980 US Highway 6, Port Jervis, NY 12771.” The summons and complaint were sent to that address by the Secretary of State by certified mail, return receipt requested, but the mailing was returned as “unclaimed.”By letter dated June 4, 2013, sent by first-class mail to Greenville’s address on file with the Secretary of State, the plaintiff’s attorney forwarded a copy of the summons and complaint to Greenville, requested that Greenville notify its insurance carrier of the claim, and advised that if Greenville failed to answer the complaint within 20 days, the plaintiff would move to hold it in default.In September 2013, the plaintiff moved for leave to enter a default judgment against Greenville. By order dated October 31, 2013, the Supreme Court awarded the plaintiff a default judgment as to Greenville on the issue of liability. On November 13, 2013, the plaintiff mailed Greenville a copy of the order dated October 31, 2013, with notice of entry.On February 10, 2015, the Supreme Court conducted an inquest, and rendered a decision dated March 16, 2015, finding that the plaintiff was entitled to damages in the principal sum of $775,000. On April 14, 2015, the plaintiff served Greenville, by first-class mail, with a copy of the decision after inquest at its address on file with the Secretary of State. On June 1, 2015, the Orange County Clerk entered a money judgment in favor of the plaintiff and against Greenville.By order to show cause dated February 3, 2016, Greenville moved to vacate the judgment, inter alia, pursuant to CPLR 317. In support of the motion, Greenville submitted the affidavit of its two shareholders: James Delaney, its president/secretary, and William Alford, its vice president/treasurer. Delaney and Alford averred that they had no knowledge of the action until December 5, 2015, when the plaintiff served Delaney with an information subpoena, and that Greenville was open for business and operating on March 27, 2013, when the summons and complaint were served through the Secretary of State. Further, Delaney and Alford each averred, without providing any other detail, “I do not know why the Certified Mail sent from the New York Secretary of State was returned as ‘unclaimed.’”The Supreme Court denied Greenville’s motion, finding that Greenville’s shareholders failed to explain why they did not receive the summons and complaint at an address they conceded was correct, and why they did not receive and respond to any of the other correspondence from the plaintiff during the course of the litigation. Greenville appeals, and we affirm.CPLR 317 permits a defendant who has been served with a summons other than by personal delivery to defend the action upon a finding by the court that the defendant 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; Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 AD3d 724, 724-725). ”[S]ervice on a corporation through delivery of process to the Secretary of State is not ‘personal delivery’ to the corporation” (Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d at 142). ”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; see Ultimate One Distrib. Corp. v. 2900 Stillwell Ave., LLC, 140 AD3d 1054, 1055). Whether to grant relief pursuant to CPLR 317 is discretionary (see Goldfarb v. Zhukov, 145 AD3d at 759), and relief may be denied “where, for example, a defendant’s failure to personally receive notice of the summons was a result of a deliberate attempt to avoid such notice” (Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d at 143).Here, Greenville did not contend that the address it kept on file with the Secretary of State was incorrect, and its shareholders effectively claimed ignorance as to why the summons and complaint were “unclaimed,” without offering any details as to how Greenville ordinarily received mail at that address. Further, Greenville offered no explanation as to why it did not receive any of the other correspondence from the plaintiff, all of which were sent to the same address. Under these circumstances, Greenville’s conclusory and unsubstantiated denial of service of the certified mailing card and other correspondence from the plaintiff was insufficient to establish that it did not have actual notice of the action in time to defend (see Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 AD3d at 725-726; see also Moran v. Grand Slam Ventures, LLC, 160 AD3d 944). Although the return of a summons and complaint to the Secretary of State as “unclaimed” may be sufficient to warrant a hearing on the issue of whether a defendant had notice of the action in time to defend (see Drillman v. Marsam Realty 13th Ave., LLC, 129 AD3d 903, 903-904), here, Greenville’s failure to offer any details as to why it did not receive the certified mailing card or any of the other correspondence from the plaintiff during the pendency of the action was insufficient to raise a triable issue of fact warranting a hearing (see Baez v. Ende Realty Corp., 78 AD3d 576, 576; see also Clover M. Barrett, P.C. v. Gordon, 90 AD3d 973, 973-974). In light of the foregoing, it is unnecessary to determine whether Greenville 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 providently exercised its discretion in denying that branch of Greenville’s motion which was to vacate its default pursuant to CPLR 317.DILLON, J.P., BALKIN, MILLER and CONNOLLY, JJ., concur.By Scheinkman, P.J.; Austin, Miller, Hinds-Radix and Maltese, JJ.PEOPLE, etc., res, v. Robert Swen, ap — (Ind. No. 121/15)Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Richmond County (Stephen J. Rooney, J.), imposed December 3, 2015, upon his plea of guilty, on the ground that the sentence was excessive. Cross motion by the respondent to dismiss the appeal on the ground that it is barred by CPL 450.10(1).ORDERED that the cross motion is denied; and it is further,ORDERED that the sentence is affirmed.The defendant entered into a plea agreement pursuant to which he pleaded guilty to one count of criminal possession of a weapon in the third degree (Penal Law §265.02[1]). He was sentenced, in accordance with the plea agreement, to an indeterminate term of one to three years’ imprisonment.On appeal, the defendant contends that the sentence was excessive. The People cross-move to dismiss the appeal on the ground that it is barred by CPL 450.10(1). The People further argue that review of the defendant’s excessive sentence contention is precluded because he waived his right to appeal.CPL 450.10(1) provides a criminal defendant with the right to appeal a judgment “unless the appeal is based solely upon the ground that a sentence was harsh or excessive when such sentence was predicated upon entry of a plea of guilty and the sentence imposed did not exceed that which was agreed to by the defendant as a condition of the plea.” As the People acknowledge, the Court of Appeals has held that this provision is unconstitutional because “it imposes a limitation or condition on the jurisdiction of the Appellate Division of Supreme Court in contravention of NY Constitution, article VI, §4(k)” (People v. Pollenz, 67 NY2d 264, 267-268). Contrary to the People’s contention, the subsequent determination of the Court of Appeals in People v. LaFontaine (92 NY2d 470) did not implicitly overrule this aspect of People v. Pollenz or otherwise affect the constitutionality of CPL 450.10(1) (see        People v. Walker, __ AD3d __, 2018 NY Slip Op 05709 [2d Dept 2018]; People v. Lyons, 161 AD3d 1196; cf. William C. Donnino, 2016 Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, CPL 470.15). Accordingly, the People’s cross motion to dismiss the defendant’s appeal must be denied.However, the People are correct that the defendant’s valid waiver of his right to appeal precludes review of his contention that his sentence was excessive. A waiver of the right to appeal “is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v. Lopez, 6 NY3d 248, 256; see People v. Bradshaw, 18 NY3d 257, 264; People v. Brown, 122 AD3d 133, 136). Although the Court of Appeals has “repeatedly observed that there is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights” (People v. Johnson, 14 NY3d 483, 486), “[t]he best way to ensure that the record reflects that the right is known and intentionally relinquished by the defendant is to fully explain to the defendant, on the record, the nature of the right to appeal and the consequences of waiving it” (People v. Brown, 122 AD3d at 142; see People v. Rocchino, 153 AD3d 1284; People v. Blackwood, 148 AD3d 716, 716).“[A] thorough explanation should include an advisement that, while a defendant ordinarily retains the right to appeal even after he or she pleads guilty, the defendant is being asked, as a condition of the plea agreement, to waive that right” (People v. Brown, 122 AD3d at 144; see People v. Spitzer, __ AD3d __, 2018 NY Slip Op 05062 [2d Dept 2018]). ”[A] defendant should [also] receive an explanation of the nature of the right to appeal, which essentially advises that this right entails the opportunity to argue, before a higher court, any issues pertaining to the defendant’s conviction and sentence and to have that higher court decide whether the conviction or sentence should be set aside based upon any of those issues… [and] that appellate counsel will be appointed in the event that he or she were indigent” (People v. Brown, 122 AD3d at 144; see People v. Spitzer, __ AD3d __, 2018 NY Slip Op 05062). Finally, “trial courts should then explain the consequences of waiving the right to appeal, i.e., that the conviction and sentence will not receive any further review, and shall be final” (People v. Brown, 122 AD3d at 144; see People v. Spitzer, __ AD3d __, 2018 NY Slip Op 05062).Here, the record of the plea proceeding demonstrates that the defendant understood that the appeal waiver was separate and distinct from those rights automatically forfeited upon a plea of guilty and that the defendant was voluntarily relinquishing that right in consideration for the promised sentence (see People v. Sanders, 25 NY3d 337, 341; People v. Byrd, 100 AD3d 1013, 1013; see also People v. Brown, 122 AD3d at 144). Furthermore, the record of the plea proceeding demonstrates that the defendant received an explanation of the nature of the right to appeal and the consequences of waiving that right (see People v. Spitzer, __ AD3d __, 2018 NY Slip Op 05062; People v. Rocchino, 153 AD3d 1284; People v. Stiles, 143 AD3d 747, 747; People v. Romero-Flores, 128 AD3d 1102, 1102; People v. McRae, 123 AD3d 848, 848-849; see also People v. Brown, 122 AD3d at 144). On the record presented, we conclude that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see generally People v. Bradshaw, 18 NY3d at 264-267; People v. Ramos, 7 NY3d 737, 738; People v. Lopez, 6 NY3d at 255; People v. Hidalgo, 91 NY2d 733, 735). Accordingly, the defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Hardy, 120 AD3d 1358, 1358; People v. Arteev, 120 AD3d 1255, 1255; People v. Alexander, 104 AD3d 862, 862).SCHEINKMAN, P.J., AUSTIN, MILLER, HINDS-RADIX and MALTESE, JJ., concur.By Scheinkman, P.J.; Rivera, Austin, Cohen and Barros, JJ.PEOPLE, etc., res, v. David Jiminez, ap — (S.C.I. No. 243/16)Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Dorothy Chin-Brandt, J., at plea; John F. Zoll, J., at sentence), imposed April 19, 2016, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 NY3d 337, 339-342; People v. Lopez, 6 NY3d 248, 256-257; cf. People v. Brown, 122 AD3d 133, 145-146). The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 NY3d at 255-256; People v. Foxworth, 161 AD3d 1103).SCHEINKMAN, P.J., RIVERA, AUSTIN, COHEN and BARROS, JJ., concur.By Mastro, J.P.; Austin, Barros and Connolly, JJ.PEOPLE, etc., res, v. Ronald Johnson, ap — (Ind. No. 7147/13)Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated July 12, 2017 (People v. Johnson, 152 AD3d 620), determining an appeal from a judgment of the Supreme Court, Kings County, rendered October 31, 2014.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).MASTRO, J.P., AUSTIN, BARROS and CONNOLLY, JJ., concur.By Dillon, J.P.; Cohen, Duffy, Connolly and Christopher, JJ.MATTER of Ja Niyah M. (Anonymous). Administration for Childrens Services, ap; Justina R. (Anonymous), res — (Docket No. N-2474-18)Mark Diamond, New York, NY, attorney for the child.In a proceeding pursuant to Family Court Act article 10, the petitioner appeals from an order of the Family Court, Kings County (Ilana Gruebel, J.), dated March 8, 2018. The order, after a hearing, granted the mother’s application pursuant to Family Court Act §1028 for the return of the subject child to her custody. By decision and order on motion dated March 23, 2018, this Court stayed enforcement of the order dated March 8, 2018, pending hearing and determination of the appeal.ORDERED that the order dated March 8, 2018, is reversed, on the law and the facts, without costs or disbursements, and the mother’s application pursuant to Family Court Act §1028 for the return of the subject child to her custody is denied.At the time the subject child was born in January 2018, the mother already had one child, Kareem, who was then six years old. On December 22, 2017, the Administration for Children’s Services (hereinafter ACS) filed a petition alleging that the mother neglected Kareem by inflicting excessive corporal punishment on him. As a result, Kareem was removed from the mother’s care and placed in a nonkinship foster home. On January 26, 2018, shortly after her birth, the subject child was removed from the mother’s care. On January 29, 2018, ACS commenced this proceeding alleging that the mother had derivatively neglected the subject child, based upon the allegations of neglect concerning Kareem. After initially opposing the removal of the subject child from her care and the placement in foster care, the mother consented to removal, but reserved her right to ask for a hearing pursuant to Family Court Act §1028 and to seek the return of the subject child. On February 6, 2018, the mother filed an application pursuant to Family Court Act §1028. After a hearing, the Family Court granted the mother’s application for the return of the subject child to her custody. ACS appeals.“An application pursuant to Family Court Act §1028 for the return of a child who has been temporarily removed ‘shall’ be granted unless the Family Court finds that ‘the return presents an imminent risk to the child’s life or health’” (Matter of Romeo O. [Sita P.-M.], __ AD3d __, __, 2018 NY Slip Op 05047, *2 [2d Dept 2018], quoting Family Ct Act §1028[a]). The Family Court’s determination will not be disturbed if it is supported by a sound and substantial basis in the record (see Matter of Alex A.E. [Adel E.], 103 AD3d 721). In determining whether there is imminent risk to the life or health of a child pursuant to Family Court Act §1028, the Family Court is required to balance the risk to the child should he or she be returned to the custody of the parent against the harm that the child’s removal might cause (see Nicholson v. Scoppetta, 3 NY3d 357, 378; Matter of Audrey L. [Marina L.], 147 AD3d 838, 839).Here, the Family Court’s determination granting the mother’s application pursuant to Family Court Act §1028 for the return of the subject child lacked a sound and substantial basis in the record (see Matter of Julissia B. [Navasia J.], 128 AD3d 690, 691). The evidence at the hearing demonstrated, inter alia, the mother’s ongoing history of physical neglect and abuse toward Kareem, including an indicated report of inadequate supervision of Kareem when he was one year old, her failure or refusal to substantially comply with recommended services, and her failure to adequately cooperate with ACS. Accordingly, the court should have denied the mother’s application for the return of the subject child to her custody.DILLON, J.P., COHEN, DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.

Motion List released on:August 29, 2018By Scheinkman, P.J.PEOPLE, etc., res, GRANTING LEAVE TO APPEAL v. Safwan R. Bhuiyan, ap — ON APPLICATION — Application by the defendant pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from an order of the Supreme Court, Queens County, dated June 15, 2018, which has been referred to me for determination.Upon the papers filed in support of the application and the papers filed in opposition thereto, it isORDERED that the application is granted; the defendant is granted leave to appeal from the order of the Supreme Court, Queens County, dated June 15, 2018, made in this case; and it is further,CERTIFIED that said order involves questions of law or fact which ought to be reviewed by the Appellate Division, Second Department; and it is further,ORDERED that the papers which accompanied this application are deemed to be a timely notice of appeal from said order.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Aliah J. (Anonymous). Administration for Childrens Services, res, Candice J. (Anonymous), ap — Appeal by Candice J. from an order of the Family Court, Queens County, dated January 25, 2018. Pursuant to §670.9(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the appellant’s time to perfect the appeal by causing the original papers constituting the record on the appeal to be filed in the office of the Clerk of this Court (see 22 NYCRR 670.9[d][2]) and by serving and filing the appellant’s brief on the appeal is enlarged until September 24, 2018; and it is further,ORDERED that no further enlargement of time shall be granted.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.Robert Lugo, ap, v. Larissa Torres, res — Appeal by Robert Lugo from a judgment of the Supreme Court, Westchester County, entered March 13, 2018. Pursuant to §670.9(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the appellant’s time to perfect the appeal by causing the original papers constituting the record on the appeal to be filed in the office of the Clerk of this Court (see 22 NYCRR 670.9[d][2]) and by serving and filing the appellant’s brief on the appeal is enlarged until September 27, 2018; and it is further,ORDERED that no further enlargement of time shall be granted.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.MATTER of Ankhenaten Amen-Ra C. (Anonymous). Forestdale, Inc., petitioner-res, Adanna J. C. (Anonymous), res-ap, et al., res, Allan D. Shafter, etc. nonparty-res — (Proceeding No. 1)MATTER of D. (Anonymous), also know as Arjuna C. (Anonymous). Forestdale, Inc., petitioner-res, Adanna J. C. (Anonymous), res-ap, et al., res, Allan D. Shafter, etc. nonparty-res — (Proceeding No. 2)MATTER of Judea J. C. (Anonymous). Forestdale, Inc., petitioner-res, Adanna J. C. (Anonymous), res-ap, et al., res, Allan D. Shafter, etc. nonparty-res — (Proceeding No. 3) — Appeals by Adanna J. C. from three orders of the Family Court, Queens County, all dated January 29, 2018. The appellant’s brief was filed in the office of the Clerk of this Court on August 22, 2018. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that within 30 days of the date of this  , the briefs for the respondent and the attorneys for the children in the above-entitled appeals shall be served and filed.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Riyanna N. F. (Anonymous), a/k/a Riyanna F. (Anonymous). Forestdale, Inc., petitioner-res, Crystal M. S. (Anonymous), respondent- appellant res — Appeal by Crystal M. S. from an order of the Family Court, Queens County, dated May 30, 2017. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the time for the attorney for the child to serve and file a brief on the appeal is enlarged until September 12, 2018; and it is further,ORDERED that no further enlargement of time shall be granted.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Rivera, J.P.; Leventhal, Miller and Connolly, JJ.PEOPLE, etc., res, v. Safwan R. Bhuiyan, ap — Motion by the appellant to consolidate an appeal from a judgment of the Supreme Court, Queens County, rendered July 28, 2017, with an appeal from an order of the same court dated June 15, 2018.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted; and it is further,ORDERED that the appellant’s time to perfect the appeals is enlarged, and the appellant shall prosecute the appeals expeditiously in accordance with this Court’s rules (see 22 NYCRR 670.1, et seq.) and written directions.RIVERA, J.P., LEVENTHAL, MILLER and CONNOLLY, JJ., concur.MATTER of David B. (Anonymous). Administration for Childrens Services, petitioner- res, Stacy T. (Anonymous), respondent- ap — (Proceeding No. 1)MATTER of Danielle T. (Anonymous). Administration for Childrens Services, petitioner- res, Stacy T. (Anonymous), respondent- ap — (Proceeding No. 2) — Appeals by Stacy T. from two orders of the Family Court, Queens County, dated March 1, 2018, and June 27, 2018, respectively. By decision and order on certification of this Court dated August 10, 2018, the following attorney was assigned as counsel for the appellant on the appeals:Richard J. Cardinale26 Court Street, Suite 1815Brooklyn, NY 11242718-624-9391By letter dated August 23, 2018, the assigned counsel has informed this Court that the appellant wishes to proceed with the appeals. Pursuant to §670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), it isORDERED that the appeals in the above-entitled proceeding shall be perfected either within 60 days after the receipt by the assigned counsel of the transcripts of the minutes of the proceedings in the Family Court, and the assigned counsel shall notify this Court by letter of the date the transcripts are received, or, if there are no minutes of proceedings to be transcribed, within 60 days of the date of this  ; and it is further,ORDERED that within 30 days after the date of this  , the assigned counsel shall file in the office of the Clerk of this Court one of the following:(1) an affidavit or affirmation stating that there are no minutes of any Family Court proceeding to be transcribed for the appeals; or(2) if there are such minutes, an affidavit or affirmation stating that the transcripts has been received, and indicating the date received; or(3) if the transcripts has not been received, an affidavit or affirmation stating that the order on certification of this Court dated August 10, 2018, has been served upon the clerk of the court from which the appeals are taken, the dates thereof, and the date by which the transcripts are expected; or(4) an affidavit or an affirmation withdrawing the appeals; and it is further,ORDERED that if none of the above actions described in (1), (2), (3), or (4) above, has been taken within 30 days of the date of this  , the Clerk of this Court shall issue an order to all parties to the appeals to show cause why the appeals should or should not be dismissed.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Shahzad Gulzar, respondent- ap, v. Shandy Gulzar, appellant- res — Appeal by Shandy Gulzar, and cross appeal by Shahzad Gulzar, from an order of the Family Court, Queens County, dated August 24, 2017. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the time for the respondent-appellant to serve and file a brief on the appeal and cross appeal is enlarged until September 20, 2018; and it is further,ORDERED that no further enlargement of time shall be granted.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Majesty S. (Anonymous), ap — Appeal by Majesty S. from an order of the Family Court, Kings County, dated April 11, 2017. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the time for the respondent to serve and file a brief on the appeal is enlarged until September 27, 2018; and it is further,ORDERED that no further enlargement of time shall be granted.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.MATTER of Innocence A. M.-F. (Anonymous). Coalition for Hispanic Family Services, petitioner- res, Khadijah N. M-F. (Anonymous), res-res — Appeal by Khadijah N.M.-F. from an order of the Family Court, Kings County, dated March 19, 2018. Pursuant to §670.9(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the appellant’s time to perfect the appeal by causing the original papers constituting the record on the appeal to be filed in the office of the Clerk of this Court (see 22 NYCRR 670.9[d][2]) and by serving and filing the appellant’s brief on the appeal is enlarged until September 24, 2018.By Mastro, J.P.; Leventhal, Miller, Hinds-Radix and Iannacci, JJ.MATTER of Jimmy Wong, ap, v. Joseph Ponte, etc. res — Motion by the appellant to enlarge the time to perfect an appeal from a judgment of the Supreme Court, Queens County, dated August 14, 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, the appellant’s time to perfect the appeal is enlarged until September 28, 2018, and the record or appendix on the appeal and the appellant’s brief shall be served and filed on or before that date; and it is further,ORDERED that no further enlargement of time shall be granted.MASTRO, J.P., LEVENTHAL, MILLER, HINDS-RADIX and IANNACCI, JJ., concur.By Rivera, J.P.; Leventhal, Miller and Connolly, JJ.101CO, LLC res-ap, v. Sand Land Corporation, appellants-res — Motion by the appellants-respondents on an appeal and cross appeal from a judgment of the Supreme Court, Suffolk County, dated September 1, 2017, to enlarge the time to perfect the appeal.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted, the time to perfect the appeal is enlarged until September 28, 2018, and the joint record or appendix on the appeal and the appellants-respondents’ brief shall be served and filed on or before that date; and it is further,ORDERED that no further enlargement of time shall be granted; and it is further,ORDERED that the respondents-appellants shall serve and file their answering brief, including its points of argument on the cross appeal, in accordance with the rules of this Court (see 22 NYCRR 670.8[c][3]).RIVERA, J.P., LEVENTHAL, MILLER and CONNOLLY, JJ., concur.By Mastro, J.P.; Leventhal, Miller, Hinds-Radix and Iannacci, JJ.MATTER of Monique Nikole Sellers, ap, v. Derek Jobete Gardner, res — Motion by the respondent to enlarge the time to serve and file a brief on an appeal from an order of the Family Court, Kings County, dated May 19, 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, the respondent’s time to serve and file a brief is enlarged until September 13, 2018, and the respondent’s brief shall be served and filed on or before that date.MASTRO, J.P., LEVENTHAL, MILLER, HINDS-RADIX and IANNACCI, JJ., concur.By Mastro, J.P.; Leventhal, Miller, Hinds-Radix and Iannacci, JJ.Maria M. Reinoso De Fernandez, plf-res, v. City of New York, def-res, Peter A. Kott ap — Motion by the defendant-respondent to enlarge the time to serve and file a brief on an appeal from an order of the Supreme Court, Queens County, dated January 19, 2018.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted, the defendant-respondent’s time to serve and file a brief is enlarged until September 28, 2018, and the defendant-respondent’s brief shall be served and filed on or before that date; and it is further,ORDERED that no further enlargement of time shall be granted.MASTRO, J.P., LEVENTHAL, MILLER, HINDS-RADIX and IANNACCI, JJ., concur.By Dillon, J.P.; Cohen, Duffy, Connolly and Christopher, JJ.Adalberto Santiago, res-ap, v. Terry A. Boyer, appellant-res — Motion by the respondent-appellant to enlarge the time to serve and file a brief on an appeal from an order of the Supreme Court, Kings County, dated February 6, 2017, and an appeal and a cross appeal from a judgment of the same court dated June 22, 2018.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, the respondent-appellant’s time to serve and file a brief is enlarged until September 28, 2018, and the answering brief, including the points of argument on the cross appeal (see 22 NYCRR 670.8[c][3]), shall be served and filed on or before that date; and it is further,ORDERED that no further enlargement of time shall be granted.DILLON, J.P., COHEN, DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.US Bank National Association, etc., ap, v. Charliemae White, res — Application by the appellant to withdraw an appeal from an order of the Supreme Court, Queens County, dated October 12, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.By Mastro, J.P.; Sgroi, Maltese and Brathwaite Nelson, JJ.PNC Bank, National Association, res, v. Claude Merchant, etc. ap — Application to withdraw an appeal from an order of the Supreme Court, Kings County, dated December 2, 2015.Upon the stipulation of the attorneys for the respective parties to the appeal dated August 20, 2018, it isORDERED that the application is granted and the appeal is deemed withdrawn, without costs or disbursements.MASTRO, J.P., SGROI, MALTESE and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.SSJI 176 Skillman, LLC, ap, v. Michaelangelo Baglivo, etc. res — Application to withdraw an appeal from an order of the Supreme Court, Kings County, dated February 27, 2018.Upon the stipulation of the attorneys for the respective parties to the appeal dated August 23, 2018, it isORDERED that the application is granted and the appeal is deemed withdrawn, without costs or disbursements.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.MATTER of Baby G. S. (Anonymous), a/k/a Shakira M. (Anonymous). Coalition for Hispanic Family Services, petitioner- res, Sergio P. G. M. (Anonymous), res-res — (Proceeding No. 1)MATTER of Stephanie L. Z. M.-S. (Anonymous). Coalition for Hispanic Family Services, petitioner- res, Sergio P. G. M. (Anonymous), res-res — (Proceeding No. 2) — Appeals by Sergio P. G. M. from two orders of the Family Court, Kings County, both dated May 23, 2017. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the time for the respondent and the attorney for the children to serve and file their respective briefs on the appeals is enlarged until October 15, 2018.MATTER of Joseph Paese, ap, v. Janamarie Paese, res — Appeal by Joseph Paese from an order of the Supreme Court, Westchester County, dated February 13, 2018. The appellant’s brief was filed in the office of the Clerk of this Court on August 23, 2018. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that within 30 days of the date of this order, the briefs for the respondent and the attorneys for the children in the above-entitled appeal shall be served and filed.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.Kenyaitta Benjamin Foreman ap, v. State of New York, res — (Claim No. 128481) — Appeal by Kenyaitta Benjamin Foreman and Giovanna Rivera Foreman under Court of Claims Claim No. 128481, Motion No. 90135, by notice of appeal filed February 8, 2018.On the Court’s own motion, it isORDERED that the appeal is dismissed, without costs or disbursements, as the notice of appeal does not identify the judgment or order appealed from (see CPLR 5515).SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.MATTER of Quinton Carr, appellant-res, v. Armani Thomas, res-res — Appeal by Quinton Carr and cross appeal by Armani Thomas from an order of the Family Court, Queens County, dated November 30, 2017. The appellant-respondent and respondent-appellant’s briefs were filed in the office of the Clerk of this Court on June 25, 2018 and July 19, 2018, respectively. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that within 30 days of the date of this order, the reply brief of the appellant-respondent in the above-entitled appeal and cross appeal shall be served and filed.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Avery M. (Anonymous). Administration for Childrens Services, petitioner-res, Carlina W. (Anonymous), res-res — Appeal by Carlina W. from an order of the Family Court, Kings County, dated February 9, 2018. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the time for the petitioner-respondent to serve and file a brief on the appeal is enlarged until September 24, 2018; and it is further,ORDERED that no further enlargement of time shall be granted.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.Joseph Paese, ap, v. Janamarie Paese, res — Appeal by Joseph Paese from an order of the Supreme Court, Westchester County, dated January 7, 2018. The appellant’s brief was filed in the office of the Clerk of this Court on August 23, 2018. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that within 30 days of the date of this order, the briefs for the respondent and the attorneys for the children in the above-entitled appeal shall be served and filed.By Dillon, J.P.; Cohen, Duffy, Connolly and Christopher, JJ.MATTER of Nathan Bornstein, etc., ap, v. Morris Steinberg, etc., res — Motion by the appellant to enlarge the time to perfect an appeal from an order of the Supreme Court, Kings County, dated November 2, 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, the appellant’s time to perfect the appeal is enlarged until October 29, 2018, and the record or appendix on the appeal and the appellant’s brief shall be served and filed on or before that date; and it is further,ORDERED that no further enlargement of time shall be granted.DILLON, J.P., COHEN, DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Cohen, Duffy, Connolly and Christopher, JJ.MATTER of Ronald D. Smith, ap, v. Eric J. Smith, res — Appeal by Ronald D. Smith from an amended order of the Family Court, Kings County, dated April 20, 2018. By order to show cause dated July 24, 2018, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal in the above-entitled proceeding for failure to comply with a   dated June 1, 2018, issued pursuant to §670.4(a)(2) of the rules of this Court (22 NYCRR 670.4[a][2]).Now, upon the order to show cause and the papers filed in response thereto, it isORDERED that the motion to dismiss the appeal is denied; and it is further,ORDERED that pursuant to §670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), the time to perfect the appeal by causing the original papers constituting the record on the appeal to be filed in the office of the Clerk of this Court (see 22 NYCRR 670.9[d][2]), and by serving and filing a brief on the appeal is enlarged until October 29, 2018.DILLON, J.P., COHEN, DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Leventhal, Miller, Hinds-Radix and Iannacci, JJ.MATTER of Ishmael A. A.-S. (Anonymous), ap, v. Sacha C. (Anonymous), res — Motion by the appellant pro se for leave to prosecute an appeal from an order of the Family Court, Queens County, dated March 15, 2018, as a poor person and to enlarge the time to perfect the appeal.Upon the papers filed in support of the motion and no papers having been filed in in relation thereto, it isORDERED that the branch of the motion which is for leave to prosecute the appeal on the original papers is denied as unnecessary (see Family Ct Act §1116), and the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the briefs of the appellant, the respondent, and the attorney for the children, if any. The parties are directed to file nine copies of their respective briefs and to serve one copy on each other (22 NYCRR 670.9[d][1][ii]; Family Ct Act §1116); and it is further,ORDERED that the motion is otherwise denied; and it is further,ORDERED that pursuant to §670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), the time to perfect the appeal by causing the original papers constituting the record on the appeal to be filed in the office of the Clerk of this Court (see 22 NYCRR 670.9[d][2]), and by serving and filing a brief on the appeal is enlarged until September 28, 2018.MASTRO, J.P., LEVENTHAL, MILLER, HINDS-RADIX and IANNACCI, JJ., concur.By Mastro, J.P.; Leventhal, Miller, Hinds-Radix and Iannacci, JJ.MATTER of Christopher Stevenson, ap, v. Cynthia Ashford, res — Motion by the appellant pro se for leave to prosecute an appeal from an order of the Family Court, Kings County, dated March 27, 2018, as a poor person and for the assignment of counsel.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied, with leave to renew on or before September 28, 2018, upon proper papers, including the appellant’s affidavit setting forth the appellant’s full financial situation including all assets, both real and personal, as well as any and all sources of income and expenses; and it is further,ORDERED that pursuant to §670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), on or before September 28, 2018, the appellant shall file in the office of the Clerk of this Court one of the following:(1) an affidavit or affirmation stating that there are no minutes of the Family Court proceeding to be transcribed for the appeal; or(2) if there are such minutes, an affidavit or affirmation stating that the transcript has been received, and indicating the date that it was received; or(3) if the transcript has not been received, an affidavit or affirmation stating that it has been ordered and paid for, the date thereof, and the date by which the transcript is expected; or(4) if the appellant is indigent and cannot afford to obtain the minutes or perfect the appeal, a motion in this Court for leave to prosecute the appeal as a poor person and for the assignment of counsel, as set forth above; or(5) an affidavit or an affirmation withdrawing the appeal; and it is further,ORDERED that if none of the actions described in (1), (2), (3), (4), or (5), above, has been taken on or before on or before September 28, 2018, the Clerk of this Court shall issue an order to all parties to the appeal to show cause why the appeal should or should not be dismissed.MASTRO, J.P., LEVENTHAL, MILLER, HINDS-RADIX and IANNACCI, JJ., concur.By Mastro, J.P.; Leventhal, Miller, Hinds-Radix and Iannacci, JJ.MATTER of Alex v. (Anonymous). Orange County Department of Social Services, petitioner-res, Dennis v. (Anonymous), respondent-appellant res — Motion by Law Offices of Kiel Van Horn, PLLC, for leave to withdraw as counsel for the respondent-appellant on appeals from two orders of the Family Court, Orange County, dated October 13, 2017, and November 13, 2017, respectively.Upon the papers filed in support of the motion and no papers having been filed in relation or opposition thereto, it isORDERED that the motion is granted, and on or before September 12, 2018, Law Offices of Kiel Van Horn, PLLC, shall serve its client by one of the methods specified in CPLR 2103(c), with a copy of this decision and order on motion and shall file proof of such service with the Clerk of this Court; and it is further,ORDERED that no further proceedings shall be taken against the respondent-appellant without leave of the Court, until the expiration of 30 days after service upon him of a copy of this decision and order; and it is further,ORDERED that pursuant to §670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), the respondent-appellant’s time to perfect the appeals by causing the original papers constituting the record on the appeals to be filed in the office of the Clerk of this Court (see 22 NYCRR 670.9[d][2]) and by serving and filing the respondent-appellant’s brief on the appeals is enlarged until November 13, 2018.MASTRO, J.P., LEVENTHAL, MILLER, HINDS-RADIX and IANNACCI, JJ., concur.Marina Bresler, res, v. Eugene Bresler, ap — Application by the appellant to withdraw an appeal from an order of the Supreme Court, Kings County, dated April 19, 2018.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.Heyde Cruz, res, v. Esplanade Staten Island, LLC, ap — Application by the appellant to withdraw an appeal from an order of the Supreme Court, Richmond County, dated June 15, 2018.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.Darlene Gargano, res, v. Michael Gargano, ap — Application by the appellant to withdraw an appeal from an order of the Supreme Court, Kings County, dated June 7, 2018.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.Darlene Gargano, res, v. Michael Gargano, ap — Application by the appellant to withdraw an appeal from an order of the Supreme Court, Kings County, dated June 7, 2018.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.Ada Cicero, ap, v. Village of Mount Kisco res — Application by the appellant to withdraw an appeal from an order of the Supreme Court, Westchester County, dated November 28, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.Imran Sattaur res, v. Andrew Lee ap — Application by the appellants to withdraw an appeal from an order of the Supreme Court, Kings County, dated January 31, 2018.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.Charles Sanders res, v. Northeastern Building & Development, Co., Inc., ap — Appeal from an order of the Supreme Court, Nassau County, dated January 3, 2018.Upon the stipulation of the attorneys for the respective parties to the appeal dated August 27, 2018, it isORDERED that the appeal is marked withdrawn.Madelyn Ortiz, ap, v. Irene M. Kofman, res — Appeal from an order of the Supreme Court, Kings County, entered May 3, 2018.Upon the stipulation of the attorneys for the respective parties to the appeal dated August 22, 2018, it isORDERED that the appeal is marked withdrawn.Siobhan Leonard, plf-res, Consolidated Edison Company of New York, Inc., defendant third-party plf-res, WJL Equities Corp. def-res, 1200 Lexington, LLC, def-ap — Application by the defendant-appellant to withdraw an appeal from an order of the Supreme Court, Queens County, dated March 2, 2018.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.Lalit Bhatia, plf, v. Seema Bhatia, ap, Wade Cummings, res — Application by the appellant to withdraw an appeal from an order of the Supreme Court, Suffolk County, dated June 22, 2018.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.Madeline Woods, ap, v. James D. Glen res — Application by the appellant to withdraw an appeal from an order of the Supreme Court, Nassau County, dated February 5, 2018.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.Anthony Ditta, ap, v. Armia Shafik, res — Application by the appellant to withdraw an appeal from an order of the Supreme Court, Kings County, dated February 6, 2018.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.By Dillon, J.P.; Chambers, Maltese and Barros, JJ.Citigroup Global Markets Realty Corp., ap, v. Charles F. LaGreca def, Claudette LaGreca, res — Motion by the respondent to enjoin the appellant, or anyone acting on her behalf, from entering or securing the subject premises, or interfering with her quiet enjoyment of the subject premises, pending hearing and determination of an appeal from an order of the Supreme Court, Richmond County, dated May 2, 2016.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.DILLON, J.P., CHAMBERS, MALTESE and BARROS, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Jeffrey J. P. (Anonymous), Jr. Administration for Childrens Services, petitioner-res, Anna A. (Anonymous), res-res — (Proceeding No. 1)MATTER of Anthony M. (Anonymous), Jr. Administration for Childrens Services, petitioner-res, Anna A. (Anonymous), res-res — (Proceeding No. 2) — Appeal by Anna A. from an order of the Family Court, Queens County, dated October 25, 2016.On the Court’s own motion, it isORDERED that the decision and order on motion of this Court dated May 16, 2018, which granted the respondent-appellant’s motion for leave to serve and file a pro se supplemental brief is recalled and vacated; and it is further,ORDERED that the respondent-appellant’s motion for leave to serve and file a supplemental pro se brief is denied.The respondent-appellant has failed to file a supplemental pro se brief although afforded sufficient opportunity to do so.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Dillon, J.P.; Hinds-Radix, Barros and Connolly, JJ.John R. Riconda, res, v. Liberty Insurance Underwriters, Inc., ap — Motion by the respondent to hold in abeyance an appeal from an order of the Supreme Court, Suffolk County, dated September 22, 2017, pending certain proceedings in that court or, in the alternative, to enlarge the time to serve and file a brief.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.DILLON, J.P., HINDS-RADIX, BARROS and CONNOLLY, JJ., concur.By Dillon, J.P.; Hinds-Radix, Barros and Connolly, JJ.Sean Wongsing, res, v. Cindy Wongsing, ap — 2018-09314Sean Wongsing, respondent,v Cindy Wongsing, appellant.(Index No. 2684/16) ‌Motion by the appellant to stay all proceedings in the above-entitled action related to the marital residence, including her sentencing for contempt, pending hearing and determination of appeals from two orders of the Supreme Court, Suffolk County, dated May 16, 2018, and June 26, 2018, respectively, and a judgment of the same court entered July 3, 2018.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that on the Court’s own motion, the appeal from the order dated May 16, 2018, is dismissed, without costs or disbursements, on the ground that the right of direct appeal therefrom terminated upon entry of the judgment (see Matter of Aho, 39 NY2d 241); the issues raised on the appeal from the order dated May 16, 2018, may be brought up for review and raised on the appeal from the judgment; and it is further,ORDERED that the motion is denied.DILLON, J.P., HINDS-RADIX, BARROS and CONNOLLY, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Mateo M. Q. (Anonymous). Suffolk County Department of Social Services, res, Jessica Q. (Anonymous), ap — On the Court’s own motion, it isORDERED that the decision and order on motion of this Court dated August 14, 2018, in the above-entitled matter, on an appeal from an order of the Family Court, Suffolk County, dated July 12, 2018, is amended by deleting from the first decretal paragraph thereof the words “ Suite 6200″ and substituting therefor the words “Suite 3900.”SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.Enrique A. Garrido, Jr., ap, v. Village Water Department, Village of Rhinebeck, res — Appeal by Enrique A. Garrido, Jr. from an order of the Justice Court, Town of Hyde Park, Dutchess County, dated May 1, 2017.On the Court’s own motion, it isORDERED that the appeal is transferred to the Appellate Term of the Supreme Court, Ninth and Tenth Judicial Districts, for determination (see 22 NYCRR 730.1[d]); and it is further,ORDERED that all further proceedings in connection with the appeal shall be conducted pursuant to the rules of the Appellate Term, Ninth and Tenth Judicial Districts.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.