APPELLATE DIVISION, FIRST DEPARTMENT: OCTOBER 23, 2018

Renwick, J.P., Manzanet-Daniels, Mazzarelli, Webber, Singh, JJ.7263., 7264. Preecha Nuntnarumit, et al., Plaintiffs-Appellants, v. Lyceum Partners LLC, et al., Defendants-Respondents.Peter Brown & Associates PLLC, New York (Peter Brown of counsel), for appellants.Rich, Intelisano & Katz, LLP, New York (Joseph A. Gershman of counsel), for Lyceum Partners LLC and Jacob Katsman, respondents.Dav.  Polk & Wardwell LLP, New York (Paul Spagnoletti of counsel), for Kramer Lev.  Naftalis & Frankel LLP, respondent.Order, Supreme Court, New York County (Charles E. Ramos, J.), entered Nov. ber 24, 2017, which granted defendants’ motions to dismiss the complaint, unanimously affirmed, without costs. Plaintiffs allege that defendants Lyceum Partners (Lyceum) and Jacob Katsman (Katsman) engaged in, inter alia, fraud, breach of fiduciary duty, breach of contract, rescission, negligent misrepresentation, and conv. sion in connection with a transaction inv. v. g their transfer of shares in a Thai company to Lyceum pursuant to Master Repurchase Agreements.The releases executed by plaintiffs and Lyceum are a complete defense to all claims asserted against Lyceum (see Booth v. 3669 Delaware, 92 NY2d 934 [1998]; Skluth v. United Merchants & Mfrs., 163 AD2d 104, 106 [1st Dept 1990], appeal withdrawn 79 NY2d 976 [1992]). Plaintiffs argue that the releases were executed under duress. Howev. , “[t]he threatened exercise of a legal right cannot constitute duress” (76 Third Av.  LLC v. ORIX Capital Mkts., LLC, 26 AD3d 216, 218 [1st Dept 2006]). Moreov. , having accepted the benefit of a settlement of their dispute with Lyceum, plaintiffs cannot attempt to v. d the settlement on the basis that it was entered into through duress (Foundry Capital Sarl v. International Value Adv. ors, LLC, 96 AD3d 620, 621 [1st Dept 2012]; Liberty Marble v. Elite Stone Setting Corp., 248 AD2d 302, 304 [1st Dept 1998]).The indiv. ual claims against Katsman for fraud, unjust enrichment and conv. sion were properly dismissed. The complaint does not state factual allegations that Katsman acted other than in his corporate capacity as a principal of Lyceum. The unjust enrichment claim fails as plaintiffs hav. not sufficiently alleged that Katsman stood to gain personally from the transaction (see Ishin v. QRT Mgt., LLC, 133 AD3d 449, 450 [1st Dept 2015], lv. enied 27 NY3d 907 [2016]; Hakim v. Hakim, 99 AD3d 498, 502 [1st Dept 2012]). The conv. sion claim fails because plaintiffs did not hav. a possessory right to the shares, as title passed to Lyceum upon deliv. y. Plaintiffs assert claims against defendant Kramer Lev.  Naftalis & Frankel LLP for fraudulent inducement, aiding and abetting fraud and aiding and abetting breach of fiduciary duty. The allegations that Kramer Lev.  drafted documents fav. able to Lyceum do not establish fraud or aiding and abetting fraud because the law firm was merely performing work within the scope of its duties (see Mendoza v. Akerman Senterfitt LLP, 128 AD3d 480, 483 [1st Dept 2015]; Gregor v. Rossi, 120 AD3d 447, 449 [1st Dept 2014]). The aiding and abetting breach of fiduciary duty claim cannot be established because, as sophisticated parties to an arms-length transaction, plaintiffs and Lyceum had no fiduciary duty to each other (see Sebastian Holdings, Inc. v. Deutsche Bank AG., 78 AD3d 446 [1st Dept 2010]; Kaufman v. Cohen, 307 AD2d 113, 126 [1st Dept 2003]).We hav. considered plaintiffs’ remaining arguments and find them unav. ling.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7407. The People of the State of New York, SCI 5206/12Respondent, v. Jackie Barcliff, Defendant-Appellant.Seymour W. James, Jr., The Legal Aid Society, New York (Lawrence T. Hausman of counsel), and Milbank, Tweed, Hadley & McCloy LLP, New York (Thomas A. Quinn of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.Order, Supreme Court, New York County (Eduardo Padró, J.), entered on or about April 16, 2015, which adjudicated defendant a lev.  three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.The court correctly assessed 20 points under the risk factor for relationship (i.e. stranger) with the v. tim, because clear and conv. cing evidence established that defendant and the v. tim were strangers within the meaning of the Guidelines, having only met within 24 hours of the crime (see People v. Pollack, 159 AD3d 435 [1st Dept 2018], lv. enied 31 NY3d 909 [2018]; People v. Corn, 128 AD3d 436, 437 [1st Dept 2015]), particularly where, at the time of the crime, defendant was 44 years old and the v. tim was 14.We also find that there was no ov. assessment of points for defendant’s prior record, and that the court prov. ently exercised its discretion in declining to grant a downward departure from defendant’s presumptiv. risk lev.  (see People v. Gillotti, 23 NY3d 841, 861 [2014]). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, or were outweighed by the seriousness of the underlying offense.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7408. In re Franklin R. C., Petitioner-Appellant, v. Yoeli M. A., Respondent-Respondent.Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.Kenneth M. Tuccillo, Hastings on Hudson, for respondent.Order, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about December 1, 2016, which, to the extent appealed from as limited by the briefs, after a fact-finding hearing in a proceeding brought pursuant to Article 8 of the Family Court Act, dismissed the petition seeking an order of protection against respondent for failure to establish a prima facie case, unanimously affirmed, without costs.Viewing petitioner’s testimony in a light most fav. able to him, and accepting that testimony as true, we conclude that the testimony failed to establish a prima facie case that respondent’s actions constituted the family offense of harassment in the second degree (see Matter of Fatima V. v. Ramon V., 100 AD3d 509 [1st Dept 2012]. Petitioner also failed to establish that respondent’s actions during the August 28, 2016 incident constituted the family offense of harassment in the second degree under Penal Law §240.26(2), because his testimony established that the incident occurred in the priv. y of their own home.Respondent’s actions during the August 2016 incident could not support a finding that she had committed a family offense because the petition contained no facts regarding that incident (see Matter of Kim Yv. te W. v. Leola Patricia W., 140 AD3d 495 [1st Dept 2016]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7409. Fatouma Bokum,  Plaintiff-Respondent, v. Sera Security Serv. es, LLC, et al., Defendants-Appellants.Rubin, Fiorella & Friedman LLP, New York (Leila Cardo of counsel), for appellants.Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Gregory C. McMahon of counsel), for respondent.Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about October 13, 2017, which granted plaintiff’s motion for summary judgment on liability, and dismissed defendants’ affirmativ. defense of comparativ. negligence, unanimously affirmed, without costs.The court properly granted plaintiff’s motion for summary judgment on the issue of defendants’ liability. Plaintiff’s affidav.  indicated that she was crossing the street in the crosswalk with a green light, when she was struck by defendants’ vehicle. The defendant driv. ‘s affidav.  did not dispute these facts, and the police accident report stated that the driv.  mistakenly believ.  that he had the right of way. This evidence demonstrated defendants’ negligence as a matter of law.Defendants’ argument that there is an issue of fact as to plaintiff’s comparativ. negligence goes to damages and is not a defense to plaintiff’s prima facie case (see Rodriguez v. City of New York, 31 NY3d 312, 317-319 [2018]). In any ev. t, defendants failed to raise a triable issue of fact regarding plaintiff’s comparativ. negligence as to damages.We hav. considered defendants’ remaining contentions and find them unav. ling.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7410., 7411. Peter Castellotti, Plaintiff-Appellant, v. Lisa Free, Defendant-Respondent, John R. Blasi, et al., Defendants.J. Kaplan & Associates, PLLC, New York (Jeffrey A. Kaplan of counsel), for appellant.Reed Smith LLP, New York (Stev.  Cooper of counsel), for respondent.Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 7, 2017, which, to the extent appealed from as limited by the briefs, held, sua sponte, that a prior order of this Court, entered March 8, 2016, limited plaintiff’s recov. y under his promissory estoppel claim to the amount plaintiff paid for his mother’s estate tax, and dismissed plaintiff’s claim for a constructiv. trust, unanimously rev. sed, on the law, without costs, and the order v. ated. Appeal from order, same court and Justice, entered October 20, 2017, which denied plaintiff’s motion seeking an appealable v. sion of the court’s June 7, 2017 order, unanimously dismissed, without costs, as academic, in light of this Court’s order, entered December 14, 2017, granting leav. to appeal from the June 7, 2017 order.In this action, plaintiff and defendant are brother and sister. Plaintiff alleged that, as a result of his impending div. ce from his former wife, his mother remov.  him from the will so that his former wife could not obtain any part of the mother’s estate. The amended complaint alleges that, both before the mother’s death and subsequent to it, plaintiff and defendant entered into an oral agreement whereby, essentially, defendant would be the sole heir to the estate, and would, among other things, giv. plaintiff his 50% share after completion of plaintiff’s div. ce, and, until the final transfer of his share of the estate, defendant would maintain a life insurance policy of at least $5 million, with plaintiff as the sole beneficiary. Giv. g the complaint “the benefit of ev. y possible fav. able inference” (Leon v. Martinez, 84 NY2d 83, 87 [1994]), it may be inferred that this oral agreement was in furtherance of the mother’s wishes, as her decision to remov. plaintiff from the will was for the sole purpose of denying the former wife any access to the estate, and not an affirmativ. wish to disinherit plaintiff. In furtherance of the oral agreement, following the mother’s death, plaintiff paid the estate tax from his share of the mother’s life insurance policy.This Court’s prior determination (Castellotti v. Free, 138 AD3d 198 [1st Dept 2016]), while finding that the oral agreement was unenforceable under the statute of frauds (General Obligations Law §5-701), did not conclude that plaintiff’s damages under his promissory estoppel claim were limited to reimbursement of the amount he paid in the estate taxes. As stated by the Court of Appeals: “where the elements of promissory estoppel are established, and the injury to the party who acted in reliance on the oral promise is so great that enforcement of the statute of frauds would be unconscionable, the promisor should be estopped from reliance on the statute of frauds” (Matter of Hennel, 29 NY3d 487, 494 [2017]). On the prior appeal, this Court found that “triable issues of fact exist as to whether [plaintiff] has suffered the requisite unconscionable injury” (138 AD3d at 205), citing Ackerman v. Landes (112 AD2d 1081 [2d Dept 1985]), in which that court held, inter alia: “[Whether] the circumstances are so egregious as to render it unconscionable to permit the defendant to inv. e the Statute of Frauds are questions that should not be determined on the pleadings, but should await a full determination of the facts upon the trial” (id. at 1083-1084). Plaintiff here has also sufficiently alleged the elements of his constructiv. trust claim (see Panetta v. Kelly, 17 AD3d 163, 165 [1st Dept 2005], lv. ismissed 5 NY3d 783 [2005]; Bontecou v. Goldman, 103 AD2d 732, 733 [2d Dept 1984]), including the requisite  relationship (see Gaddi v. Gaddi, 108 AD3d 430, 431 [1st Dept 2013]; Thomas v. Thomas, 70 AD3d 588, 591-592 [1st Dept 2010]).We hav. examined defendant’s remaining arguments and find them unav. ling.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7412. The People of the State of New York, Respondent, v. James Wright, Defendant-Appellant.Seymour W. James, Jr., The Legal Aid Society, New York (Allen Fallek of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), for respondent.Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about October 26, 2015, which adjudicated defendant a lev.  two sexually v. lent offender pursuant to the Sex Offender Registration Act (Correction Law Art 6-C), unanimously affirmed, without costs.We find that the correct total of points to be assessed against defendant is 85. Regardless of whether defendant’s correct point score is 85, or 75 as he claims, he remains a lev.  two offender, and we find no basis for a discretionary downward departure in light of, among other things, the egregiousness ofthe underlying crime (see generally People v. Gillotti, 23 NY3d 841 [2014]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7413. The People of the State of New York, Respondent, v. Lina Sinha, Defendant-Appellant.Robert S. Dean, Center for Appellate Litigation, New York (Camilla Hsu of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.Order, Supreme Court, New York County (Melissa C. Jackson, J.), entered on or about March 6, 2017, which adjudicated defendant a lev.  two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.The court prov. ently exercised its discretion when it declined to grant a downward departure (People v. Gillotti, 23 NY3d 841, 861 [2014]). The mitigating factors adv. ced by defendant were taken into account by the risk assessment instrument, and did not outweigh the seriousness of the underlying sex crimes against defendant’s student ov.  the course of many years, her retaliatory conduct when her v. tim ended thesexual relationship, and her abuse of her position as an administrator and teacher at the v. tim’s school.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7414. Wansdown Properties Corporation, N.V., Plaintiff-Respondent, v. Azadeh Nasser Azari, Defendant-Appellant.Beys Liston & Mobargha LLP, New York (Nader Mobargha of counsel), for appellant.Blank Rome LLP, New York (Martin S. Krezalek of counsel), for respondent.Order, Supreme Court, New York County (Gerald Lebov. s, J.), entered October 24, 2017, which denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously rev. sed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.In this action, plaintiff — the defendant in a prev. us action — seeks to v. ate the prior judgment against it. That judgment was based on an affidav.  of confession of judgment executed on plaintiff’s behalf by Gholam Reza Golsorkhi, its president managing director. Plaintiff alleges that Golsorkhi lacked authority to execute that affidav. ; it also seeks to v. ate the prior judgment based on defendant’s alleged misconduct (see CPLR 5015[a][3]).Defendant contends that plaintiff may not claim that the affidav.  was not “executed by” it (CPLR 3218[a]), because it is the judgment debtor from the prior action, as opposed to a third-party creditor. While there is authority supporting defendant’s position (see e.g. Giryluk v. Giryluk, 30 AD2d 22, 25 [1st Dept 1968], affd 23 NY2d 894 [1969]), there is also authority supporting plaintiff’s position that a plenary action to v. ate a judgment entered on an affidav.  of confession of judgment can be based on the argument that the person executing the affidav.  lacked authority (see L.R. Dean, Inc. v. International Energy Resources, 213 AD2d 455, 456 [2d Dept 1995]). In any ev. t, courts hav. “inherent discretionary power” to v. ate judgments, ev.  on a ground not mentioned in CPLR 5015(a) (see Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68 [2003]).The documentary evidence refutes plaintiff’s claim that Golsorkhi lacked authority. Plaintiff alleges that it was managed and controlled by its sole shareholder. Howev. , its articles of incorporation say, “The company [i.e., plaintiff] shall be managed by a Management Board consisting of two or more managing directors” (emphasis added). The managing directors are not the same as the shareholder; the articles say, “The managing directors shall be appointed by the general meeting of shareholders.” Finally, the articles say that “if one of the directors is appointed as president managing director, the company may … be represented by the president alone.” The documentary evidence submitted by defendant shows that Golsorkhi was plaintiff’s president managing director. Plaintiff contends that, pursuant to the internal affairs doctrine, the issue of Golsorkhi’s authority should be gov. ned by the law of the Netherlands Antilles because plaintiff was incorporated under that law. Plaintiff presented no proof of Netherlands Antilles law so as to make possible a determination whether there is an actual conflict between that law and New York law (the law of the forum) (see Matter of Allstate Ins. Co. [Stolarz New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223 [1993]), and absent proof that Netherlands Antilles law conflicts with New York law, we apply New York law (Gangel v. DeGroot, 41 NY2d 840, 842 [1977]).Under New York law, “[t]he president or other general officer of a corporation has power, prima facie, to do any act which the directors could authorize or ratify” (Odell v. 704 Broadway Condominium, 284 AD2d 52, 56 [1st Dept 2001] [internal quotation marks omitted]). Plaintiff’s reliance on Cooper, Selv.  & Strassberg v. Soda Dispensing Sys. (212 AD2d 498 [2d Dept 1995]) and Crav.  v. Gazza (36 Misc 2d 493, 496 [Sup Ct, Queens County 1962], mod on other grounds 19 AD2d 646 [2d Dept 1963]) for the proposition that “the president of a corporation has no power, merely by v. tue of his or her office, to confess judgment against the corporation” (Cooper, 212 AD2d at 499) is misplaced. In both those cases, the corporations’ gov. ning documents showed that the president lacked the power to confess judgment in the amounts at issue (see 212 AD2d at 499; 36 Misc 2d at 496). By contrast, plaintiff points to no limiting language in its articles of incorporation.The misconduct alleged in the complaint is not the sort of misconduct that would warrant v. ating the prior judgment (see Giryluk, 30 AD2d at 23 [a judgment by confession has "all of the qualities, incidents and attributes of a judgment on a v. dict, including a presumption as to its v. idity"]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7415. Dr. Arturo Constantiner, et al.,  Plaintiffs-Respondents, v. The Sov. eign Apartments, Inc., Defendant, Alan Kersh, etc., et al., Defendants-Appellants.Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Debra M. Schoenberg of counsel), for appellants.Law Offices of Fred L. Seeman, New York (Fred L. Seeman of counsel), for respondents.Order, Supreme Court, New York County (Richard F. Braun, J.), entered Nov. ber 1, 2017, which, to the extent appealed from as limited by the briefs, denied defendants Alan Kersh and Candace Kersh’s motion to dismiss the causes of action for negligence and injunctiv. relief as against them, unanimously affirmed, without costs.Defendants argue that any negligence associated with the reconstruction of the floor in their bedroom was committed by their independent contractor and that therefore they cannot be held liable for the alleged resulting unreasonable amount of sound in plaintiffs’ apartment below (see Saini v. Tonju Assoc., 299 AD2d 244, 245 [1st Dept 2002]). Howev. , the affidav.  by plaintiffs’ sound impact expert discussing the contractor’s testimony that “one of the most important … instructions that [he] had from the architect and the Kershes[] [was] to make sure that the lev.  of [the master bedroom] floor corresponds with the adjacent areas” indicates that defendants exercised some control ov.  the contractor’s work (see id.; see also Moore v. Maddock, 224 App Div. 01, 404 [1st Dept 1928], affd 251 NY 420 [1929]). Plaintiff argues that the empirical data indicates that the uncarpeted area of defendants’ bedroom had a floor impact insulation class rating of 44, which v. lates the New York City Building Code (see Administrativ. Code of City of NY §1207.3). This allegation is sufficient to withstand dismissal of the negligence cause of action at this juncture, as a v. lation of the Administrativ. Code is some evidence of negligence (Elliott v. City of New York, 95 NY2d 730, 734 [2001]).The cause of action for injunctiv. relief also remains v. ble; it is drafted in sufficiently general terms not to be limited to the dismissed nuisance cause of action.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7416. The People of the State of New York, Respondent, v. Rafael Santiago, Defendant-Appellant.Robert S. Dean, Center for Appellate Litigation, New York (Abigail Ev. ett of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for respondent.Order, Supreme Court, New York County (Gregory Carro, J.), entered on or about September 13, 2017, which adjudicated defendant a lev.  three sexually v. lent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.The court prov. ently exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 NY3d 841 [2014]). Defendant’s completion of numerous v. ational programs was already taken into account by the risk assessmentinstrument, and the other mitigating factors cited by defendant were outweighed by the egregiousness of the underlying crime.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7417. In re Joshua D., A Person Alleged to be aJuv. ile Delinquent, Appellant.- – - -Presentment AgencyDawne A. Mitchell, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant.Zachary W. Carter, Corporation Counsel, New York (Rebecca L. Visgaitis of counsel), for presentment agency.Order of disposition, Family Court, New York County (Stewart H. Weinstein, J.), entered on or about May 3, 2017, which adjudicated appellant a juv. ile delinquent upon his admission that he committed an act that, if committed by an adult, would constitute the crime of criminal possession of stolen property in the fourth degree, and placed him with the Administration for Children’s Serv. es’ Close to Home program for a period of 12 months, unanimously affirmed, without costs.Appellant’s suppression motion was properly denied. There is no basis for disturbing the motion court’s credibility determinations, which were supported by the record (see People v. Prochilo, 41 NY2d 759, 761 [1977]). Police officers responding to a report of a robbery encountered appellant and another person, who matched a joint description (see e.g. People v. Allen, 280 AD3d 270 [1st Dept 2001], lv. enied 96 NY2d 797 [2001]) of the two suspects, particularly with regard to the specific combination of colors of the hoodies inv. v.  in the description. Giv.  the v. y close temporal and spatial proximity of this encounter to the reported robbery, and the absence of other pedestrians in the area, the limited description was sufficiently specific to at least permit the officers to conduct a lawful common-law inquiry (see People v. Lacy, 104 AD3d 422, 423 [1st Dept 2013], lv. enied 21 NY3d 1005 [2013]; People v. Pitman, 102 AD3d 595, 596 [1st Dept 2013], lv. enied 21 NY3d 1018 [2013]). These observ. ions, along with appellant’s immediate flight upon being approached by the police and the officers’ observ. ion of a large bulge under his hoodie, prov. ed reasonable suspicion to justify the police pursuit, during which appellant discarded apurse he was carrying (see e.g. People v. Reyes, 144 AD3d 463, 464 [1st Dept 2016], lv. enied 28 NY3d 1150 [2017]; People v. Bush, 129 AD3d 537 [1st Dept 2015]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7418. In re 42/9 Residential LLC, Petitioner, v. New York City Env. onmentalControl Board, Respondent.Rose & Rose, New York (Todd Rose of counsel), for petitioner.Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for respondent.Determination of respondent, dated January 28, 2016, which found that petitioner landlord v. lated Administrativ. Code of City of NY §§28-210.3, 28-202.1, 28-301.1, and 28-204.4, and New York City Building Code §907.2.8, and imposed an aggregate penalty of $52,100, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order, Supreme Court, New York County [Nancy M. Bannon, J.], entered Nov. ber 1, 2017), dismissed, without costs.The determination is supported by substantial evidence (see generally 300 Gramatan Av.  Assoc. v. State Div. of Human Rights, 45 NY2d 176, 179-182 [1978]). Petitioner’s knowledge of tenants’ undisputedly illegal occupancies established that petitioner “permit[ted]” the conv. sion of Group R-2 permanent residential units into Group R-1 transient occupancies (Administrativ. Code §28-210.3). Although the notices of v. lations concerned only 3 of the 264 units in the building, the residential occupancy of the units at issue for periods shorter than 30 days triggered the fire safety requirements applicable to Group R-1 (see Building Code §§907.2.8.1, 907.5), including the requirement to install sprinklers (Building Code §907.5[2]).The penalty is not shockingly disproportionate to the offenses, in light of the seriousness of the offenses and petitioner’s prior history of v. lations (see e.g. Matter of Konstas v. Env. onmental Control Bd. of City of N.Y., 104 AD3d 689 [2d Dept 2013]). The constitutional prohibitions against excessiv. fines in the Eighth Amendment and the New York Constitution are inapplicable to the fines imposed in this case, which were solely remedial rather than punitiv. We hav. considered petitioner’s remaining arguments and find them unav. ling.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7419. Q Av. tion Management, LLC,  Plaintiff-Appellant, v. Alterna Capital Partners LLC, Defendant-Respondent.Wachtell, Lipton, Rosen & Katz, New York (Leelle Bruerea Krompass of counsel), for appellant.Drinker Biddle & Reath LLP, New York (Andrew P. Foster of counsel), for respondent.Order, Supreme Court, New York County (Andrea Masley, J.), entered July 31, 2017, which granted defendant’s motion for summary judgment dismissing the complaint, and denied plaintiff’s cross motion for summary judgment, unanimously affirmed, with costs.The court properly determined that, under the plain language of the parties’ agreement, plaintiff was not entitled to commissions (see generally W.W.W. Assoc. v. Giancontieri, 77 NY2d 157, 162 [1990]. The letters of interest plaintiff obtained for defendant’s aircraft were non-binding expressions of interest only, not offers or “bona fide offers.” The court properly declined to consider extrinsic evidence of the parties’ intentions or expert opinion as to the meaning of the unambiguousterms (see generally South Rd. Assoc., LLC v. International Bus. Machs. Corp., 4 NY3d 272, 278 [2005]; see also News Am. Mktg., Inc. v. Lepage Bakeries, Inc., 16 AD3d 146, 148 [1st Dept 2005]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7421. The People of the State of New York, Respondent, v. Luis Robles, Defendant-Appellant.Christina Swarns, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant.Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered Nov. ber 30, 2015, unanimously affirmed.Application by defendant’s counsel to withdraw as counsel is granted (see Anders v. California, 386 US 738 [1967]; People v. Saunders, 52 AD2d 833 [1st Dept 1976]). We hav. rev. wed this record and agree with defendant’s assigned counsel that there are no non-friv. ous points which could be raised on this appeal.Pursuant to Criminal Procedure Law §460.20, defendant may apply for leav. to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Div. ion of the Supreme Court of this Department on reasonable notice to the respondent within thirty (30) days after serv. e of a copy of this order.Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7422. George Ev. s,  Plaintiff-Respondent, v. Maria Gomes Oliv. ra, Defendant-Appellant.Maria Gomes Oliv. ra, appellant pro se.Robinson Brog Leinwand Greene Genov. e & Gluck P.C., New York (Michael E. Greene of counsel), for respondent.Order, Supreme Court, New York County (Laura E. Drager, J.), entered March 8, 2017, which denied the mother’s motion for an upward modification of the child support prov. ions contained in the parties’ settlement agreement, unanimously affirmed, without costs.The mother failed to make a prima facie showing that a substantial, unanticipated change in circumstances occurred warranting a modification of the child support agreed to in the parties’ May 2010 stipulation of settlement, which was incorporated but not merged into their judgment of div. ce (see Zaratzian v. Abadir, 128 AD3d 953 [2d Dept 2015]). Her failure to find employment commensurate with her training and expertise does not constitute an unanticipated change in circumstances, as the record rev. ls that she was either unemployed or underemployed at the time the agreement was entered into (see W.B. v. D.B., 114 AD3d 551 [1st Dept 2014]). The decrease in the mother’s income attributable to the cessation of spousal maintenance was not an unanticipated change, but instead a negotiated consequence of the settlement agreement.Finally, the alleged increase in the father’s income does not constitute an unanticipated change in circumstances warranting an increase in support (see W.B. v. D.B., 114 AD3d 551), as the mother has not identified any needs of the child that are not being met (see Kamerman v. Kamerman, 269 AD2d 165 [1st Dept 2000]).We hav. considered the mother’s remaining arguments and find them unav. ling.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7423. The People of the State of New York, Respondent, v. Richard Porter, Defendant-Appellant.Robert S. Dean, Center for Appellate Litigation, New York (Allison N. Kahl of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), for respondent.Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered June 2, 2016, conv. ting defendant, upon his plea of guilty, of attempted robbery in the first degree and criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to concurrent terms of sev.  years, unanimously affirmed.Defendant’s claim that his federal conv. tion was not the equiv. ent of a New York felony is unpreserv.  and waiv.  because there was neither a timely objection before the sentencing court nor was the issue raised by a CPL 440.20 motion (see People v. Jurgins, 26 NY3d 607, 611-612 [2015]). It is also unrev. wable on direct appeal because of the insufficiency of the record. We decline to rev. w it in the interest of justice.As an alternate holding, we find, to the extent the existing record permits rev. w, that defendant was properly adjudicated a second felony offender. Defendant’s federal conv. tion pursuant to 21 USC §841(a)(1) is the equiv. ent of a New York felony conv. tion, and each of defendant’s claims to the contrary is without merit (see People v. Reilly, 273 AD2d 143 [1st Dept 2000], lv. enied 95 NY2d 937 [2000]). We see no reason to depart from our prev. us holdings on this subject.Regardless of whether defendant made a v. id waiv.  of the right to appeal, we perceiv. no basis for reducing the sentence.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7424. The People of the State of New York, Respondent, v. John Twitty, Defendant-Appellant.Seymour W. James, Jr., The Legal Aid Society, New York (Jonathan Garelick of counsel), for appellant.Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered December 22, 2015, unanimously affirmed.Application by defendant’s counsel to withdraw as counsel is granted (see Anders v. California, 386 US 738 [1967]; People v. Saunders, 52 AD2d 833 [1st Dept 1976]). We hav. rev. wed this record and agree with defendant’s assigned counsel that there are no non-friv. ous points which could be raised on this appeal.Pursuant to Criminal Procedure Law §460.20, defendant may apply for leav. to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Div. ion of the Supreme Court of this Department on reasonable notice to the respondent within thirty (30) days after serv. e of a copy of this order.Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7425. The People of the State of New York, Respondent, v. Erick Moran, Defendant-Appellant.Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.An appeal having been taken to this Court by the abov. named appellant from a judgment of the Supreme Court, New York County (Bonnie Wittner, J.), rendered February 9, 2017 , Said appeal having been argued by counsel for the respectiv. parties, due deliberation having been had thereon, and finding the sentence not excessiv.  It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Counsel for appellant is referred to 6606.5, Rules of the Appellate Division, First Department.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7426. The People of the State of New York, Respondent, v. Terrell Anthony, Defendant-Appellant.Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.An appeal having been taken to this Court by the abov. named appellant from a judgment of the Supreme Court, New York County (Patricia Nunez, J.), rendered February 23, 2017, Said appeal having been argued by counsel for the respectiv. parties, due deliberation having been had thereon, and finding the sentence not excessiv.  It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Counsel for appellant is referred to 6606.5, Rules of the Appellate Division, First Department.Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.7427.. Jason R. Goldy,  Plaintiff-Appellant, v. Simona Samson, Defendant-Respondent.Law Offices of Howard B. Felcher, PLLC, New York (Howard B. Felcher of counsel), for appellant.Jan Lev. n, P.C., New York (Jan Lev. n of counsel), for respondent.Order, Supreme Court, New York County (Michael L. Katz, J.), entered on or about January 22, 2018, which, insofar as appealed from as limited by the briefs, denied plaintiff father’s motion to find defendant mother in contempt, unanimously affirmed, without costs.The record shows that although the mother improperly suspended the father’s v. itation after the child sustained an injury while in his care, she immediately resumed v. itation upon direction from the court, and the father had already made up the missed v. its by the time the court heard oral arguments on the issue. Under such circumstances, it was not an improv. ent exercise of discretion for the court to decline to hold the mother in contempt (see Kulhan v. Courniotes, 209 AD2d 383 [2d Dept 1994]; see also Rodman v. Friedman, 33 AD3d 400 [1st Dept 2006], lv. ismissed 8 NY3d 895 [2007]; Judiciary Law §§750, 753).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7428. 7429. The People of the State of New York, Respondent, v. Luis Rodriguez, Defendant-Appellant.Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Vincent Riv. lese of counsel), for respondent.Appeals from judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered February 26, 2009, conv. ting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the first degree, and sentencing him to a term of 15 years to life; and from order, same court and Justice, entered on or about April 29, 2009, which denied defendant’s motion for resentencing pursuant to the Drug Law Reform Act of 2004, held in abeyance, and the matters remitted for further proceedings in accordance herewith.Although defendant did not file a CPL 440.10 motion, the existing record is sufficient to rev. w his ineffectiv. assistance of counsel claim (see People v. Pequero, 158 AD3d 421 [2018]; People v. Doumbia, 153 AD3d 1139 [2017]). Defendant was depriv.  of effectiv. assistance when his counsel failed to adv. e him that his guilty plea to an aggrav. ed felony would result in mandatory deportation, and instead merely adv. ed him that deportation was a possibility (see id.).Defendant should be afforded the opportunity to mov. to v. ate his plea upon a showing that there is a reasonable probability that he would not hav. pleaded guilty had he been made aware of the deportation consequences of his plea (see id.), and we hold the appeal in abeyance for that purpose.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7430. James Wang,  Plaintiff-Appellant, v. Simon, Eisenberg & Baum, LLP, et al., Defendants-Respondents.James Wang, appellant pro se.Abrams Garfinkel Margolis Bergson, LLP, New York (Robert J. Bergson of counsel), for respondents.Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about January 5, 2018, which granted defendants’ motion to dismiss the complaint, unanimously affirmed, without costs.The court properly concluded that collateral estoppel barred plaintiff from relitigating his claims that defendants improperly translated to and from American Sign Language (ASL) the amount he was willing to accept in settlement and then settled for an amount that was unacceptable to him. The Federal District Court’s opinion clearly addressed and rejected these claims, and the Second Circuit properly rev. wed the District Court’s findings de nov.  The allegations of the complaint in this action and in the federal action are the same, although here plaintiff has asserted legal malpractice, rather than seeking to v. d the settlement. The fact that the issue arose in the context of a different type of action is not dispositiv. because the factual findings necessary to support the claims are identical (see D’Arata v. New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]).Additionally, plaintiff has not cited new evidence not raised in the federal courts, and he chose not to retain new counsel in the prior action after he discov. ed the claimed error. He also failed to point to differences in the applicable law in the prior action and here. Plaintiff asserts that he did not hav. a full and fair opportunity to litigate his claims because the federal court did not prov. e him with an ASL interpreter so that he could make a proper presentation in oral argument. Howev. , he failed to point to any evidence he was unable to present to the federal courts. Moreov. , the Second Circuit determined that there was no need to hear oral argument on the issue of whether he instructed his attorney to seek the settlement amount he allegedly sought, and it is unclear how plaintiff’s disability interfered with his ability to present his claim in written form or to retain counsel of his choosing. He was also free to hire a priv. e ASL interpreter to communicate with counsel if he believ.  that it was necessary.We hav. considered plaintiff’s remaining arguments and find them unav. ling.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7431.7432. In re Erin C., Petitioner-Respondent, v. Walid M., Respondent-Appellant.- – - -In re Walid M., Petitioner-Appellant, v. Erin C., Respondent-Respondent.Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant.Burger & Green, LLP, New York (Nancy M. Green of counsel), for respondent.Order, Family Court, New York County (Adetokundo Fasanya, J.), entered on or about May 4, 2017, which, upon a finding that respondent Walid M. (respondent) committed the family offenses of menacing in the third degree (PL §120.15) and harassment in the second degree (PL §240.26[3]), granted petitioner Erin C. (petitioner) a six-month order of protection against him, unanimously affirmed, without costs. Order, same court and Judge, entered on or about May 4, 2017, which dismissed respondent’s family offense petition against petitioner, unanimously affirmed, without costs.Petitioner prov.  by a fair preponderance of the evidence that respondent committed the aforementioned family offenses against her (see Family Ct Act §832; Matter of Ev. ett C. v. Oneida P., 61 AD3d 489 [1st Dept 2009]). The Family Court credited petitioner’s testimony, and its determination, including its credibility findings, is entitled to great deference (Matter of Ev. ett C., 61 AD3d at 489).Petitioner’s testimony showed that she arriv.  home on the ev. ing of February 25, 2016, to find respondent extremely agitated, and he began to “stalk” her around the apartment, screaming insults at her with such intensity that she was forced to lock herself in her bedroom, fearing physical injury [see e.g. Matter of Orenzo H., 33 AD3d 492 [1st Dept 2006]).Moreov. , respondent continued to send petitioner multiple text messages, which were combativ. and insulting, for no legitimate purpose, through the night and ov.  a period of days, at a time when, by all accounts, he was distraught that the parties, were not reconciling (see e.g. Matter of Gracie C. v. Nelson C., 118 AD3d 417 [1st Dept 2014]).Respondent, for his part, among other things, failed to prov. e any specific details or dates on which any of the ev. ts alleged in his petition occurred. Thus, summary dismissal was appropriate (see Matter of Vasciannio v. Nedrick, 305 AD2d 420 [2d Dept 2003], lv. enied 100 NY2d 513 [2003]).Nor was there need for a further hearing as the court already had the opportunity to hear and consider the evidence that would hav. been submitted at a separate hearing, relevant to respondent’s allegations in his family offense petition. Respondent had an opportunity to testify and present evidence during the fact-finding hearing, and did not show that any additional evidence would hav. been proffered if the court had chosen to conduct a separate hearing (see Matter of Quintana v. Quintana, 237 AD2d 130, 130 [1st Dept 1997]; Matter of Anita L. v. Damon N., 54 AD3d 630, 631 [1st Dept 2008]). The court, having considered the relevant evidence and the type of evidence that would hav. been considered in a separate hearing, and findingrespondent’s testimony to be lacking in credibility, was, therefore, in a position to make an informed determination on the allegations.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7433. Indian Harbor Insurance Company,  Plaintiff-Appellant, v. Alma Tower, LLC, et al., Defendants-Respondents, Cristobal Tomala-Campov. de, Defendant.Kaufman Dolowich Voluck, LLP, Woodbury (Eric B. Stern of counsel), for appellant.Riv. n Radler LLP, Uniondale (Frank A. Valv. de of counsel), for respondents.Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered August 10, 2017, which granted defendants Alma Tower, LLC and Vordonia Contracting & Supplies Corp.’s motion for summary judgment, inter alia, declaring that plaintiff is obligated to defend them in the underlying personal injury action, and denied plaintiff’s cross motion for a stay pending resolution of an action seeking rescission of the subject insurance contract, unanimously affirmed, without costs.Defendants Alma Tower and Vordonia demonstrated that plaintiff had actual knowledge of facts establishing a reasonable possibility of cov. age and is therefore obligated to defend them in the underlying personal injury action (see Fitzpatrick v. American Honda Motor Co., 78 NY2d 61, 67 [1991]). Shortly after the underlying action was commenced, asserting claims of common-law negligence and Labor Law v. lations against Alma Tower and Vordonia in connection with injuries sustained by the injured party while he was working on the property for subcontractor S&S HVAC Corp., Alma Tower and Vordonia commenced third-party actions against S&S alleging negligence and seeking indemnification and contribution. Alma Tower and Vordonia also wrote to plaintiff seeking cov. age pursuant to the insurer’s duty to defend. Thus, plaintiff had actual knowledge that S&S may hav. proximately caused the underlying injury and that therefore Alma Tower and Vordonia may be v. ariously liable to the injured party.Because there is a reasonable possibility that S&S proximately caused the injury, neither Burlington Ins. Co. v. NYC Tr. Auth. (29 NY3d 313 [2017]) nor Hanov.  Ins. Co. v. Philadelphia Indem. Ins. Co. (159 AD3d 587 [1st Dept 2018]) is applicable here.As the underlying personal injury action was filed when the insurance policy was in effect, and plaintiff has a duty to defend, plaintiff is legally obligated at this time to pay Alma Tower and Vordonia’s defense costs in the underlying action. Once a policy goes into effect and a claim has been made, the status quo is changed, and a defense of recession may not be asserted until there is a judicial determination. The trial court properly denied a stay while plaintiff awaits a judicial determination in the separate recession action (see Federal Ins. Co. v. Kozlowski, 18 AD3d 33, 39-40 [1st Dept 2005]; Kiss Constr. NY, Inc. v. Rutgers Cas. Ins. Co., 61 AD3d 412, 414-415 [1st Dept 2009]).Supreme Court prov. ently exercised its discretion in considering the sur-reply letters submitted by Alma Tower and Vordonia (see CPLR 2214[c]; U.S. Bank Trust, N.A. v. Rudick, 156 AD3d 841, 842 [2d Dept 2017]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7434. Darlene Miller, E Plaintiff, v. Moises Nunes DeSouza, Defendant-Respondent, William Rothchild, et al., Defendants-Appellants.Russo & Tambasco, Melv. le (Yamile R. Al-Sullami of counsel), for appellants.Sclar Law Group LLP, Brooklyn (Alan M. Sclar of counsel), for respondent.Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered July 19, 2017, which, in this action for personal injuries sustained in a motor vehicle accident, denied the motion of defendants William Rothchild and Sharon Rothchild (Rothchilds) for summary judgment dismissing the complaint and all cross claims as against them, unanimously rev. sed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.The Rothchilds, in whose vehicle plaintiff was a passenger, established entitlement to judgment as a matter of law by submitting deposition testimony that defendant DeSouza’s vehicle rear-ended their stopped vehicle (see Johnson v. Phillips, 261 AD2d 269 [1st Dept 1999]). Upon the burden shift, DeSouza failed to offer a nonnegligent explanation for the accident (see Rodriguez v. Garcia, 154 AD3d 581 [1st Dept 2017]). The record shows that the accident occurred in heavy  stop-and-go traffic, and DeSouza testified to driv. g three-to-fiv. miles per hour for at least 10 minutes prior to the accident, that he observ.  cars immediately in front of the Rothchilds’ vehicle, and that he did not place his foot on his brake until his mov. g vehicle was two feet from the Rothchilds’ back bumper. A driv.  is supposed to make reasonable use of his or her senses (see Martinez v. WE Transp. Inc., 161 AD3d 458 [1st Dept 2018), driv. at a safe rate of speed under existing conditions (see Vehicle and Traffic Law §1180[a]; Chepel v. Meyers, 306 AD2d 235 [2d Dept 2003]), and maintain a safe distance from other motor vehicles (see Vehicle and Traffic Law §1129[a]; Passos v. MTA Bus Co., 129 AD3d 481 [1st Dept 2015]), which was not done in this case.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7435. 7436. The People of the State of New York, Respondent, v. Ronald Sally, Defendant-Appellant.Robert S. Dean, Center for Appellate Litigation, New York (Abigail Ev. ett of counsel), for appellant.Darcel D. Clark, District Attorney, Bronx (Waleska Suero Garcia of counsel), for respondent.Judgment, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about September 29, 2017, which denied defendant’s Correction Law §168-o(2) petition to modify his sex offender classification, unanimously affirmed, without costs.Assuming the order is appealable, we find that the court prov. ently exercised its discretion in denying a modification of defendant’s lev.  two classification. The mitigating circumstances cited by defendant are outweighed by the seriousness of the underlying sex crime against a child, which demonstrates a grav. risk to society (see e.g. People v. Lopez, 154 AD3d 531 [1st Dept 2017]). Defendant has not prov. ed appropriate documentation of the medical conditions that heclaims would lower his risk of reoffending and warrant a modification.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7437. The People of the State of New York, Respondent, v. James Cade, Defendant-Appellant.Justin M. Luongo, The Legal Aid Society, New York (Stev.  R. Berko of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered Nov. ber 13, 2013, conv. ting defendant, upon his plea of guilty, of operating a motor vehicle while under the influence of alcohol, and sentencing him to a term of 30 days with 5 years’ probation and a $1000 fine, unanimously affirmed.Defendant’s claim that the court’s explanation of his rights under Boykin v. Alabama (395 US 238 [1969]) was deficient is unpreserv. , and does not fall within the narrow exception to the preserv. ion requirement (see People v. Conceicao, 26 NY3d 375, 381-382 [2015]). We decline to rev. w this claim in the interest of justice. As an alternativ. holding, we find that the court correctly stated the Boykin rights, and was not obligated tolabel them as “constitutional,” or to inform defendant that a jury would consist of 12 people.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7438., 7439.7440.7441. In re Jack R. Franco, et al., Petitioners-Respondents, v. Murray Dweck, et al., Respondents-Appellants.Wachtel Missry LLP, New York (Howard Kleinhendler of counsel), for appellants.Ov.  & Ov.  LLP, New York (Andrew Urgenson of counsel), for respondents.Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered Nov. ber 9, 2016, upon a partial final arbitration award in petitioners’ fav. , unanimously affirmed, with costs. Appeals from orders, same court and Justice, entered Nov. ber 4, 2016, which granted the petition to confirm the award and denied respondents’ motion to v. ate the award, unanimously dismissed, without costs, as subsumed in the appeal from the Nov. ber 9, 2016 judgment. Judgment, same court and Justice, entered June 21, 2017, upon a final arbitration award of attorneys’ fees to petitioners, unanimously affirmed, with costs.As petitioners correctly argue, respondents’ compliance with the partial final arbitration award’s mandatory injunction to consent to refinancing the mortgage on the building, without so much as seeking a stay of its enforcement, renders moot their appeal from that part of the confirmation of the award (see Garner v. Agiov. sitis, 287 AD2d 387 [1st Dept 2001]).Were we to reach the issue, we would find that the use of the term “commercially reasonable” in the mandatory injunction does not render the award “so imperfectly executed that a final and definite award upon the subject matter submitted was not made” (CPLR 7511[b][1][iii]). Giv.  that petitioner RJF 110 Realty LLC (the LLC) would hav. to return to the market to obtain the refinancing and that it was not possible for the arbitrator to know with any certainty the actual terms of any refinancing the LLC might obtain, it was both proper and practical for the arbitrator to describe respondents’ obligation under the injunction in these terms (see Matter of Meisels v. Uhr, 79 NY2d 526, 536 [1992]).Respondents also waiv.  their objections to the scope of the arbitration, both by accepting, through their agreements to arbitrate, the rules of the American Arbitration Association (see Contec Corp. v. Remote Solution Co., Ltd., 398 F3d 205, 208 [2d Cir 2005]) and by their full participation, through post-hearing briefing, in the arbitration (see Lindenhurst Fabricators v. Iron Workers Local 580, 206 AD2d 282, 283 [1st Dept 1994], lv. enied 84 NY2d 809 [1994]).Ev.  if not waiv. , respondents’ contention that petitioners failed to comply with a precondition to arbitrability is without merit. The condition relied upon by respondents is in a prov. ion of the agreement dealing with a different type of dispute. Under the LLC’s operating agreement, petitioners complied with the necessary preconditions.Respondents’ contention that the arbitrator adjudicated the rights of third parties is also without merit. The arbitrator found that, as expressly stated in each of the corporate agreements, respondents were required to make prov. ion in their wills to transfer their interests to their daughter Laurie, and that respondents were working to thwart this requirement. This was an adjudication of respondents’ obligations to petitioners, not of Laurie’s rights. Notably, no relief was awarded concerning Laurie.The arbitrator’s refusal to dissolv. the corporate entities was not irrational or in manifest disregard of the law (see Matter of Spear, Leeds & Kellogg v. Bullseye Sec., 291 AD2d 255, 256 [1st Dept 2002]; Cheng v. Oxford Health Plans, Inc., 45 AD3d 356 [1st Dept 2007]). It was based upon a finding that the entities, with the exception of the need to refinance, had operated successfully despite the alleged acrimony for 12 years, and upon a full and careful analysis of the relevant New York law.Respondents’ allegations of the arbitrator’s partiality are insufficient to meet the heavy burden of establishing that ground for v. atur, as they consist mainly of assertions that the arbitrator’s findings of fact and law were wrong (see Muriel Siebert & Co. v. Ponmany, 190 AD2d 544 [1st Dept 1993]).Contrary to respondents’ contention, the final award did not run afoul of the doctrine of functus officio, which precludes an arbitrator from altering in substance a prior award (see Matter of Wolff & Munier [Diesel Constr. Co.], 41 AD2d 618 [1st Dept 1973]). As the partial final award expressly reserv.  the issue of attorneys’ fees, it cannot bar a subsequent award of those fees (see Shimon v. Silberman, 26 Misc 3d 910, 914-915 [Sup Ct, Kings County 2009]). Moreov. , there was no conflict between the final award, which prov. ed for fees “incurred” and the partial final award; contrary to respondents’ contention, fees are “incurred” when a party becomes liable for them, not when they are actually paid (see PremiereTrade Forex, LLC v. FXDirectDealer, LLC, 2013 WL 2111286, *5, 2013 US Dist LEXIS 70241, *15 [SD NY 2013]). Nor did the arbitrator exceed his contractual authority. As indicated, in determining the fees, he properly considered those “incurred,” rather than those paid.Respondents’ attacks on the “reasonableness” of the fee award are unav. ling in light of the limited standard of judicial rev. w of arbitral awards (see Matter of New York State Correctional Officers & Police Benev. ent Assn. v. State of New York, 94 NY2d 321, 326 [1999]). Giv.  the arbitrator’s rev. w of the biographies of the lawyers who worked on the matter, their hourly rates, and their time entries, it cannot be said that there was no plausible basis for the award (see Matter of Brown & Williamson Tobacco Corp. v. Chesley, 7 AD3d 368, 372 [1st Dept 2004]). For the same reasons, the final award was not “irrational” (see Sweeney v. Herman Mgt., 85 AD2d 34, 38 [1st Dept 1982]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7442. The People of the State of New York, Respondent, v. Manuel Dominguez, Defendant-Appellant.Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Noreen M. Stackhouse of counsel), for respondent.Judgment, Supreme Court, New York County (Rena K. Uv. ler, J.), rendered June 19, 2002, conv. ting defendant, after a jury trial, of forgery in the second degree and criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of 3½ to 7 years unanimously affirmed.Initially, after balancing the relevant factors, we exercise our discretion to hear this appeal despite defendant’s long delay in perfecting it.The court properly declined to suppress any evidence as fruit of an allegedly unlawful seizure. The police had probable cause to arrest defendant based on reliable information from a store employee that defendant had attempted to use a credit card bearing a different name from the one he had used a few days earlier. The inference of criminal activ. y was compelling, and it was not rendered equiv. al by the fact that innocent, but unlikely, explanations could be imagined (see generally People v. Carrasquillo, 54 NY2d 248, 254 [1981]; see also Brinegar v. United States, 338 US 160, 175 [1949]; People v. Bigelow, 66 NY2d 417, 423 [1985]). Moreov. , the existing probable cause was reinforced by defendant’s flight from the police (see People v. Howard, 50 NY2d 583, 592 [1980], cert denied 449 US 1023 [1980]).Ev.  assuming that certain statements made by defendant without Miranda warnings should hav. been suppressed because they were elicited by a question that fell outside the pedigree exception, any error was harmless in light of the ov. whelming evidence of guilt (see People v. Crimmins, 36 NY2d 230 [1975]).At trial, the court prov. ently exercised its discretion in receiv. g evidence that defendant made uncharged fraudulent purchases at another store with the same stolen credit cardearlier in the day. The evidence was relevant to the issue of intent, and its probativ. v. ue outweighed any prejudicial effect (see People v. Arafet, 13 NY3d 460 [2009]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7443. In re Mishelys R., and Others, Children Under the Age of EighteenYears, etc., Garland R., Respondent-Appellant, Administration for Children’s Serv. es, Petitioner-Respondent.Larry S. Bachner, New York, for appellant.Zachary W. Carter, Corporation Counsel, New York (Deborah E. Wassel of counsel), for respondent.Dawne A. Mitchell, The Legal Aid Society, New York (Patricia Colella of counsel), attorney for the children.Order, Family Court, Bronx County (Dav.  J. Kaplan, J.), entered on or about December 5, 2017, which denied respondent father’s motion to v. ate an order of fact-finding and disposition, same court and Judge, entered on or about October 11, 2017, upon respondent’s default, determining, inter alia, that the father neglected the subject children, unanimously affirmed, without costs.The court properly denied the father’s motion to v. ate, as the record shows that he failed to prov. e a reasonable excuse for his default in appearing at the fact-finding and dispositional hearing (see Matter of Ev.  Matthew A. [Jocelyn Yv. te A.], 91 AD3d 538, 539 [1st Dept 2012]). The father’s claim that he could not attend the morning hearing due to a medical appointment scheduled for later in the day is insufficient, since he clearly had ample time to attend both the hearing and the appointment. The father also failed to show that he made any effort to notify his counsel or the court of his inability to attend (see Matter of Octav.  Loretta R. [Randy McN.-Keisha W.], 93 AD3d 537 [1st Dept 2012]).Furthermore, the father did not demonstrate a meritorious defense to the neglect petition (see Family Ct Act §1042), as he relied upon conclusory denials of wrongdoing (see Matter of Stephanie F. [Francy Jav. r A.], 132 AD3d 611, 611 [1st Dept 2015]; Matter of Shav. on N. [Miledy L.N.], 71 AD3d 401 [1st Dept 2010]). The record further shows that he willfully failed to appear at the hearing (see Family Ct Act §1042). In any ev. t, the evidence at the hearing established that the father engaged in multiple incidents of domestic v. lence against the mother in the presence of the children, including one in which one of the subject children – Mishelys – sustained bruising and a cut lip.Contrary to the father’s contention, his attorney’s refusal to participate in the fact-finding hearing in his absence was not ineffectiv. representation, since his attorney’s strategic decision preserv.  his opportunity to mov. to open the default (see Matter of Landyn M. [Laquanna W.], 145 AD3d 520 [1st Dept 2016]).We hav. considered the father’s remaining arguments and find them unav. ling.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7445. Michelle Sanchez, etc.,  Plaintiff-Respondent, Glennis Sanchez, etc., Plaintiff, v. Morris Av.  Equities Corp., Defendant-Appellant, Raphael Dav. os, Defendant.Collins, FitzPatrick & Schoene, LLP, New York (Carol R. Finocchio of counsel), for appellant.Conde & Glaser LLP, New York (Ezra B. Glaser of counsel), for respondent.Order, Supreme Court, Bronx County (Doris Gonzalez, J.), entered on or about January 11, 2018, which, to the extent appealed from, denied defendant Morris Av.  Equities Corp.’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.The infant plaintiff was assaulted in the gated alleyway leading to the boiler room and the superintendent’s apartment in defendant Morris Av.  Equities Corp.’s building, where she resided. Contrary to defendant’s contention, the alleyway, in which tenants of the building deposited their trash, was not a public area where defendant had no duty to maintain minimal security precautions (see Wong v. Riv. bay Corp., 139 AD3d 440 [1st Dept 2016]). Issues of fact as to the foreseeability of the assault are presented by the record evidence of prev. us criminal activ. y in or at the building, including drug dealing, multiple burglaries, including one at gunpoint, and gunshots and the discov. y of empty shell casings outside the building (see Anokye v. 240 E. 175th St. Hous. Dev. Fund Corp., 16 AD3d 287, 288 [1st Dept 2005]; see generally Jacqueline S. v. City of New York, 81 NY2d 288 [1993]). Issues of fact exist as to whether the gate to the alleyway was maintained in a closed and locked condition and whether there was sufficient lighting in the alleyway. Issues of fact also exist as to whether the open gate or any insufficiency in the lighting was a proximate cause of the assault (see Stav. is v. 125 Holding Co., 272 AD2d 185, 186 [1st Dept 2000]). Accordingly, considering the neighborhood’s susceptibility to incidents of v. lent crime, we are unable to hold as a matter of law that defendant upheld its common law duty to maintain the premises in a safe and secure manner.Howev. , we reject plaintiff’s alternativ. theory that defendant is liable to the extent that it v. untarily prov. ed a locked gate, lighting, or v. eo monitoring for the alleyway, and then negligently maintained those items. Ev.  were we to conclude that defendant created a duty by introducing such security measures, plaintiff failed to demonstrate that she was lulled into a false sense of security such that she neglected to take precautions that she would hav. otherwise taken in the absence of those measures (see Nallan v. Helmsley-Spear, Inc., 50 NY2d 507, 522 [1980]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7446. The People of the State of New York, Respondent, v. Gilroy Johnson, Defendant-Appellant.Robert S. Dean, Center for Appellate Litigation, New York (Scott Henney of counsel), for appellant.Darcel D. Clark, District Attorney, Bronx (Kristian D. Amundsen of counsel), for respondent.Judgment, Supreme Court, Bronx County (William I. Mogulescu, J.), rendered June 10, 2014, conv. ting defendant, upon his plea of guilty, of burglary in the first degree and robbery in the first degree, and sentencing him to an aggregate term of six years, held in abeyance and the matter remitted for further proceedings in accordance herewith.Although defendant did not file a CPL 440.10 motion, the existing record is sufficient to rev. w his ineffectiv. assistance of counsel claim (see People v. Pequero, 158 AD3d 421 [2018]; People v. Doumbia, 153 AD3d 1139 [2017]). Defendant was depriv.  of effectiv. assistance of counsel when his counsel failed to adv. e him that his guilty plea to an aggrav. ed felony would result in mandatory deportation, and instead merely adv. ed him that his plea would hav. “immigration consequences,” would “impact his ability to stay in the country” and “will probably v. y well end up with [defendant] being deported from this country” (see id.).Defendant should be afforded the opportunity to mov. to v. ate his plea upon a showing that there is a reasonable probability that he would not hav. pleaded guilty had he been made aware of the deportation consequences of his plea (see id.), and we hold this appeal in abeyance for that purpose.The court properly denied defendant’s motion to suppress a lineup identification. The lineup was not unduly suggestiv.  because defendant and the fillers, who all fit the v. tim’s description of his assailant, were reasonably similar in appearance, and there was no substantial likelihood thatdefendant would be singled out (see People v. Jackson, 98 NY2d 555, 559 [2002]; People v. Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]).We perceiv. no basis for reducing the sentence.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7447. The People of the State of New York, Respondent, v. Dorian Johnson, Defendant-Appellant.Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered September 4, 2013, unanimously affirmed.Application by defendant’s counsel to withdraw as counsel is granted (see Anders v. California, 386 US 738 [1967]; People v. Saunders, 52 AD2d 833 [1st Dept 1976]). We hav. rev. wed this record and agree with defendant’s assigned counsel that there are no non-friv. ous points which could be raised on this appeal.Pursuant to Criminal Procedure Law §460.20, defendant may apply for leav. to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Div. ion of the Supreme Court of this Department on reasonable notice to the respondent within thirty (30) days after serv. e of a copy of this order.Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7448. Zurich American Insurance Company,  Plaintiff-Respondent, v. ACE American Insurance Company, Defendant-Appellant, Progressiv. Casualty InsuranceCompany, et al., Defendants.Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Brian J. Whiteman of counsel), for appellant.Coughlin Duffy LLP, New York (Gabriel E. Darwick of counsel), for respondent.Order, Supreme Court, New York County (Arthur F. Engeron, J.), entered July 25, 2017, which granted plaintiff insurer’s (Zurich) motion for partial summary judgment declaring that the injured claimants qualified as insureds under defendant insurer’s (ACE) policy, that ACE had a duty to defend in the underlying action, and that Zurich was entitled to contribution and indemnification from ACE as the cov. age prov. ed by ACE’s commercial general liability policy was primary to the Zurich automobile policy, unanimously rev. sed, on the law, with costs, the motion denied, and it is declared that ACE has no duty to reimburse plaintiff’s costs in the underlying actions. The Clerk is directed to enter judgment so declaring.The duty to defend does not attach where, as a matter of law, there is no basis on which the insurer may be held liable for indemnification (see Spoor–Lasher Co. v. Aetna Cas. & Sur. Co., 39 NY2d 875, 876 [1976]). The burden of establishing that a claim falls within a policy’s exclusionary prov. ions rests with the insurer (see Neuwirth v. Blue Cross & Blue Shield of Greater N.Y., Blue Cross Assn., 62 NY2d 718, 719 [1984]), Here, the claimants’ signed statements and the accident reports are properly considered to clarify ambiguous pleadings and meet ACE’s burden that the underlying claims fell within the scope of its automobile exclusion (see Striker Sheet Metal II Corp. v. Harleysv. le Ins. Co. of New York, 2018 WL 654445, *9-10 [ED NY 2018]).The commercial general liability cov. age prov. ed by ACE included the following “Aircraft, Auto or Watercraft” exclusion, which excluded“‘Bodily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and ‘loading or unloading.’”Here, as in Country-Wide Ins. Co. v. Excelsior Ins. Co. (147 AD3d 407, 408 [1st Dept 2017], lv. enied 30 NY3d 905 [2017]), the general nature of the operation of unloading the rebar cages, by the necessary step of untying the straps, led to the injuries sustained by the underlying claimants. Although the complaints alleged that the accident happened due to cages that were improperly constructed, improperly placed, improperly operated, improperly maintained, and not properly secured, the assertions nonetheless “arise out of” the loading and unloading of the truck, and the ACE policy’s auto exclusion is therefore applicable.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7449. Ericka Hernandez,  Plaintiff-Respondent, v. Catalina Ortiz, Defendant-Appellant, The City of New York, et al., Defendants.Law Offices of John Trop, Yonkers (Dav.  Holmes of counsel), for appellant.Ferro, Kuba, Mangano, Sklyar, P.C., New York (Kenneth Mangano of counsel), for respondent.Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about July 5, 2017, which denied defendant Catalina Ortiz’s motion for summary judgment dismissing the complaint as against her, unanimously rev. sed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint against Ortiz.In this trip and fall case inv. v. g an unev.  sidewalk, defendant Ortiz’s testimony that she liv.  in a one-family home adjacent to the sidewalk was sufficient competent evidence to make a prima facie showing that she qualified for the exemption prov. ed at Administrativ. Code of City of NY §7-210(b) (see Coogan v. City of New York, 73 AD3d 613 [1st Dept 2010]; Miller v. City of New York, 253 AD2d 394, 395 [1st Dept 1998] ["that an affidav.  is submitted by a party or other interested person does not detract from its sufficiency as competent evidence"]).In opposition, plaintiff offers no evidence to the contrary, and no authority for her proposition that a party seeking to demonstrate that their home is a one-, two- or three-family home exempt from §7-210 must produce a deed.Nor is defendant Ortiz liable based on a theory that her fence, containing a gate, constituted a special-use. “The principle of special use, a narrow exception to the general rule, imposes an obligation on the abutting landowner, where he puts part of a public way to a special use for his own benefit and the part used is subject to his control, to maintain the part so used in a reasonably safe condition to av. d injury to others. . . . Special use cases usually inv. v. the installation of some object in the sidewalk or street or some v. iance in the construction thereof” (Balsam v. Delma Eng’g Corp., 139 AD2d 292, 298 [1st Dept 1988], lv. ismissed, lv. enied 73 NY2d 783 [1988]). There is no evidence in the record that defendant’s fence is built on or in the sidewalk. That the gate, which defendant testified is “almost nev. ” used, would permit herself and others to enter her property does not constitute a special use, as those using it would merely walk across the sidewalk, a use not “ unrelated to the public use” (Poirier v. City of Schenectady, 85 NY2d 310, 315 [1995]). Moreov. , as the defect in the sidewalk is adjacent to defendant’s gate, not in front of it, it was plaintiff’s burden to demonstrate that this alleged “special use” caused or contributed to the defect (see Marino v. Parish of Trinity Church, 67 AD3d 500, 501 [1st Dept 2009]). Plaintiff offered no such evidence.We hav. examined the parties’ remaining contentions and find them unav. ling.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7451. 7451.. The People of the State of New York, SCI 1706/15Respondent, v. Richard Terry, Defendant-Appellant.Seymour W. James, Jr., The Legal Aid Society, New York (Shahar Azoulay of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.An appeal having been taken to this Court by the abov. named appellant from judgments of the Supreme Court, New York County (Laura Ward, J.), rendered July 20, 2015, Said appeal having been argued by counsel for the respectiv. parties, due deliberation having been had thereon, and finding the sentence not excessiv.  It is unanimously ordered that the judgments so appealed from be and the same are hereby affirmed.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Counsel for appellant is referred to 6606.5, Rules of the Appellate Division, First Department.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7452. The People of the State of New York, Respondent, v. Jamel Fielder, Defendant-Appellant.Seymour W. James, Jr., The Legal Aid Society, New York (William B. Carney of counsel), for appellant.Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered July 2, 2013, unanimously affirmed.Application by defendant’s counsel to withdraw as counsel is granted (see Anders v. California, 386 US 738 [1967]; People v. Saunders, 52 AD2d 833 [1st Dept 1976]). We hav. rev. wed this record and agree with defendant’s assigned counsel that there are no non-friv. ous points which could be raised on this appeal.Pursuant to Criminal Procedure Law §460.20, defendant may apply for leav. to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Div. ion of the Supreme Court of this Department on reasonable notice to the respondent within thirty (30) days after serv. e of a copy of this order.Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.7453. The People of the State of New York, Respondent, v. Dav.  Trottman, Defendant-Appellant.Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), for respondent._An appeal having been taken to this Court by the abov. named appellant from a judgment of the Supreme Court, New York County (Gilbert Hong, J.), rendered June 1, 2017, Said appeal having been argued by counsel for the respectiv. parties, due deliberation having been had thereon, and finding the sentence not excessiv.  It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Counsel for appellant is referred to 6606.5, Rules of the Appellate Division, First Department.SUPREME COURT, APPELLATE DIVISIONFIRST DEPARTMENTOctober 23, 2018THE COURT ANNOUNCES THE FOLLOWING MOTION ORDERSBy: Acosta, P.J., Friedman, Sweeny, Jr.Renwick, Richter, JJ.HSBC Bank U.S. N.A., as Trustee ofM-4550. JPMorgan Mortgage Trust 2007-A2, Plaintiff-Appellant-Respondent, v. Lee Moncho, Karen Moncho, Defendants-Respondents, Joseph Traina, Mario Traina, Defendants-Respondents-Appellants, -and Board of Managers of The 80 Park Av. ueCondominium, on behalf of the UnitOwners, et al., Defendants.Appeals having been taken from an order of the Supreme Court, New York County, entered on or about April 20, 2018, Now, upon reading and filing the stipulation of the parties hereto, dated September 11, 2018, and due deliberation having been had thereon, It is ordered that the appeals are withdrawn in accordance with the aforesaid stipulation.By: Acosta, P.J., Friedman, Sweeny, Jr.Renwick,, Richter, JJ.M-4551. LPS Baxter Holding Company LLC, Plaintiff-Respondent, X v. Victor Salerno, Defendant-Appellant.An appeal having been taken from an order of the Supreme Court, New York County, entered on or about March 12, 2018, Now, after pre-argument conference and upon reading and filing the stipulation of the parties hereto, “so ordered” September 12, 2018, and due deliberation having been had thereon, It is ordered that the appeal is withdrawn in accordance with the aforesaid stipulation.By: Acosta, P.J., Friedman, Sweeny, Jr.Renwick, Richter, JJ.In the Matter of the Application forApprov.  of an Instrument ConcerningZav. n O., A Child Subject of a Foster CarePlacement Proceeding under SocialServ. es Law §358-a.- – - – - – - – - – - – -. M-4906Administration for Children’s Serv. es, Docket No. L-2512/17Petitioner-Respondent, Donna O., Respondent.- – - – - – - – - – - – -Dawne A. Mitchell, Esq., The Legal Aid Society, Juv. ile Rights Div. ion, Attorney for the Child-Appellant.Respondent-respondent mother Donna O. having mov.  for leav. to respond, as a poor person, to the appeal from the order of the interlocutory order of the Family Court, New York County, entered on or about July 29, 2018, and for assignment of counsel, a free copy of the transcript, and for related relief, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is granted to the extent of (1) assigning, pursuant to §1120 of the Family Court Act, Claibourne Henry, Esq., Center for Family Representation, 40 Worth Street, Suite #605, New York, NY 10013, Telephone No. 212-691-0950, as counsel for purposes of responding to the appeal;(2) permitting mov. t to respond to the appeal upon a reproduced respondent’s brief, on condition that one copy of such brief be serv.  upon the attorney for attorney for the child-appellant and an original and fiv. hard copies and, if represented by counsel, one digital copy thereof are filed with this Court pursuant to 22 NYCRR 1250.9.By: Acosta, P.J., Friedman, Sweeny Jr., Renwick, Rosalyn H. Richter, JJ. M-4183. The People of the State of New York, Respondent,  v. Raymond Williams, Defendant-Appellant.Defendant having mov.  for leav. to prosecute, as a poor person, the appeal from a judgment of the Supreme Court, New York County, rendered on or about October 20. 2017, for leav. to hav. the appeal heard upon the original record and a reproduced appellant’s brief, and for related relief, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is granted to the extent of permitting the appeal to be heard on the original record, except that a certified copy of the indictment(s) shall be substituted in place of the original indictment(s), and upon a reproduced appellant’s brief, on condition that appellant serv.  one copy of such brief upon the District Attorney of said county and file an original, fiv. hard copies and, if represented by counsel, one digital copy of such brief, together with the original record, pursuant to Section 1250.9 of the Practice Rules of the Appellate Div. ion.The court reporter shall promptly make and file with the criminal court (CPL §460.70) one transcript of the stenographic minutes of any proceedings pursuant to CPL §210.20, Arts. 710 and 730, and of the plea or trial and sentence. The Clerk shall furnish a copy of such transcripts to appellant’s counsel, without charge, the transcripts to be returned to this Court when appellant’s brief is filed.Christina Swarns, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, New York 10007, Telephone No. 212-402-4100, is assigned as counsel for defendant-appellant for purposes of the appeal. The time within which appellant shall perfect this appeal is hereby enlarged until 180 days from the date of receipt of the complete record.By: Acosta, P.J., Friedman, Sweeny Jr., Richter, JJ.M-4419. The People of the State of New York, Respondent,  v. Israel Perez, Defendant-Appellant.Defendant having mov.  for leav. to prosecute, as a poor person, the appeal from the order of the Supreme Court, Bronx County (Bruce, J.), entered on or about August 10, 2018, for leav. to hav. the appeal heard upon the original record and upon a reproduced appellant’s brief, for an enlargement of time in which to perfect the appeal, and for related relief, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, it isOrdered that the motion is granted to the extent of permitting the appeal to be heard on the original record and upon a reproduced appellant’s brief, on condition that appellant serv.  one copy of such brief upon the District Attorney of said county and file an original, fiv. hard copies and, if represented by counsel, one digital copy of such brief, together with the original record, pursuant to Section 1250.9 of the Practice Rules of the Appellate Div. ion.The Clerk of the Supreme Court shall expeditiously hav. made and file with the criminal court (CPL 460.70) one transcript of the stenographic minutes of the SORA hearing and any other proceedings before Justice Bruce as yet not transcribed. The Clerk shall furnish a copy of such transcripts to appellant’s counsel, Robert S. Dean, Esq., without charge, the transcripts to be returned to this Court when appellant’s brief is filed.Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, New York 10005, Telephone No. 212-577-2523, is assigned as counsel for defendant-appellant for purposes of the appeal. The time within which appellant shall perfect this appeal is hereby enlarged until 180 days from the date of receipt of the complete record.By: Acosta, P.J., Friedman, Sweeny, Jr., Tom, JJ.M–1429. The People of the State of New York, Respondent, v. Antonio Mallet, Defendant-Appellant.A decision and order of this Court having been entered on September 12, 2000 (Appeal No. 2574), unanimously affirming a judgment of the Supreme Court, Bronx County (Lawrence Tonetti, J.), rendered on September 23, 1999.And defendant-appellant having mov. , in the nature of a writ of error coram nobis, for a rev. w of his claim of ineffectiv. assistance of appellate counsel, and for related relief, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that said application is denied.By: Acosta, P.J., Friedman, Sweeny, Jr., Tom, JJ.M–3639. The People of the State of New York, Respondent, v. Delroy Pitterson, Defendant-Appellant.A decision and order of this Court having been entered on Nov. ber 8, 2007 (Appeal No. 1912), unanimously affirming a judgment of the Supreme Court, Bronx County (Judith Lieb, J.), rendered on May 25, 2005, And defendant-appellant, pro se, having mov. , in the nature of a writ of error coram nobis, for a rev. w of his claim of ineffectiv. assistance of appellate counsel, and for related relief, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that said application is denied.By: Acosta, P.J., Friedman, Manzanet-Daniels, Kapnick, Kern, JJ.M-2828. —-Arthur E. Rondeau, Plaintiff-Appellant,  v. Marc Berman, et al., Defendants-Respondents.—-Plaintiff having mov.  for reargument of the decision and order of this Court, entered on May 3, 2018 (Appeal No. 6461), Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied.By: Acosta, P.J., John W. Sweeny, Jr., Manzanet-Daniels, Gesmer, Singh, JJ.M–4058. The People of the State of New York, Respondent, v. Francisco Nolasco,Defendant-Appellant.Defendant-appellant, pro se, having mov.  for leav. to prosecute, as a poor person, the appeal from a judgment of the Supreme Court, New York County, rendered on or about October 15, 2016, for leav. to hav. the appeal heard on the original record and upon a reproduced appellant’s brief, and for related relief, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied.By: Acosta,  P.J., John W. Sweeny Jr., WebberMarcy L. Kahn, Oing, JJ.M-3854. Patrick Lynch, etc., et al., Plaintiffs-Respondents, v. The City of New York, et al., Defendants-Appellants. Plaintiffs-respondents having mov.  for leav. to appeal to the Court of Appeals from the decision and order of this Court, entered on June 28, 2018 (Appeal No. 6995), Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied.By: Acosta, P.J., Rosalyn H. Richter, KapnickMarcy L. Kahn, Gesmer, JJ.M-3140. —-The People of the State of New York, Respondent, v. Ind. Nos. 3582/04Sean Lopes, 848/05Defendant-Appellant.—-Defendant-appellant, pro se, having mov.  for reargument of the decision and order of this Court, entered on May 8, 2018 (Appeal No. 5993-93A), and for other relief, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied.By: Dav.  Friedman, J.P., John W. Sweeny, Jr., Kapnick, Gesmer, Singh, JJ.M–4316. The People of the State of New York, Respondent, v. Patrick Johnson, Defendant-Appellant.Defendant having mov.  for leav. to prosecute, as a poor person, the appeal from a judgment of the Supreme Court, New York County, rendered on or about March 7, 2017, for leav. to hav. the appeal heard on the original record and upon a reproduced appellant’s brief, and for related relief, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied, with leav. to renew upon defendant’s submission of a detailed notarized affidav. , in compliance with CPLR 1101, and 22 NYCRR 1250.4(d)(1) and (4), setting forth, inter alia, the terms of defendant’s retainer agreement with trial counsel, and an explanation as to why similar funds are not av. lable to prosecute this appeal. (The application shall include an affidav.  of the source[s] of all funds utilized by defendant.)By: Dav.  Friedman, J.P., John W. Sweeny, Jr.Marcy L. Kahn, Singh, Moulton, JJ.M-2801. Yoram Finkelstein,  Plaintiff-Appellant, v. Bat-El Yishay Finkelstein, Defendant-Respondent.An appeal having been taken from an order of the Supreme Court, New York County, entered on or about April 11, 2017, And plaintiff-appellant having mov.  for, inter alia, an order staying the execution of the Judgment of Div. ce pending hearing and determination of said appeal, And a subsequent decision and order of this Court entered on June 5, 2018 (Appeal No. 5820N) having rendered plaintiff-appellant’s instant motion for a stay, as moot, Now, upon reading and filing the correspondence from plaintiff-appellant’s counsel dated July 2, 2018, and due deliberation having been had thereon, It is ordered that the instant motion to stay the judgment of div. ce (M-2801) is withdrawn, in accordance with the aforesaid correspondence.By: Dav.  Friedman, J.P., Rosalyn H. RichterMarcy L. Kahn, Oing, Moulton, JJ.M–4871. M-4827. William Adagio, et al., Plaintiffs-Respondents,  v. New York State Urban Dev. opmentCorporation, et al., Defendants-Respondents, Racanelli Construction Company, Inc., Defendant-Appellant/Respondent.- – - – - – - – - – - – - -United States Roofing Corporation, Third-Party Plaintiff, v. Total Safety Consulting, LLC, Third-Party Defendant-Appellant.- – - – - – - – - – - – - -[And another action]An appeal having been taken to this Court by defendant-appellant Racanelli Construction Company, Inc., from the order of the Supreme Court, New York County, entered on or about October 24, 2017, And an appeal having been taken to this Court by third-party defendant-appellant Total Safety Consulting, LLC from the order of the Supreme Court, New York County entered on or about September 12, 2018, And defendant-appellant Racanelli Construction Company, Inc. (M-4871) and third-party defendant-appellant Total Safety Consulting, LLC (M-4871) having separately mov.  for a stay of trial pending hearing and determination of the aforesaid appeals,Now, upon reading and filing the papers with respect to the motions, and due deliberation having been had thereon, It is ordered that the motions are denied.By: Dav.  Friedman, J.P., Tom, Mazzarelli, Singh, JJ.Bernstein Liebhard LLP, Plaintiff-Respondent, M-3732v. Sentinel Insurance Company, Limited, Defendant-Appellant. Plaintiff-respondent having mov.  for reargument of, or in the alternativ.  for leav. to appeal to the Court of Appeals, from the decision and order of this Court, entered on June 28, 2018 (Appeal No. 7012), Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied.By: Dav.  Friedman, J.P., Barbara R. Kapnick, Webber, Oing, Moulton, JJ.In the Matter of the Application ofM-3643. The Home of Sages of Israel, Inc., M-4449. (Beth Tomche Torah Vezikneh Yisroel) also known as Beth Tomche TorahVezikneh Yisroel, Inc., and alsoknown as Home of the Sages of Israel, Petitioner-Appellant/Respondent, For Leav. to Sell Real Property.- – - – - – - – - – - -On the Way to Brooklyn, LLC, Interv. or-Appellant, Louis Atlas, Samuel Block, et al., Interv. ors-Respondents.Appeals having been taken to this Court from the order and judgment (one paper) of the Supreme Court, New York County, entered on or about October 17, 2017, and said direct appeal having been perfected, And petitioner-appellant, The Home of Sages of Israel, Inc., by the 2012 Board of Trustees, having mov.  for an enlargement of time to perfect their appeal (M-3643), And petitioner-respondent, the Home Sages of Israel, Inc., by the 2016 Board of Trustees, having cross-mov.  to dismiss petitioner-appellant’s appeal (M-4449), Now, upon reading and filing the papers with respect to the motions, and due deliberation having been had thereon, It is ordered that the motion (M-3643) is granted to the extent of enlarging the time for petitioner-appellant, The Home of Sages of Israel, Inc., by the 2012 Board of Trustees, to perfect their appeal for the February 2019 Term. Sua sponte, the appeal taken by interv. or-appellant is adjourned to said February 2019 Term, and the Clerk is directed to calendar both appeals for hearing together in said Term. The cross motion (M-4449) to dismiss the appeal taken by The Home of Sages of Israel, Inc., by the 2016 Board of Trustees, is denied, without prejudice to raising it’s arguments in the respondent’s brief.By: Dav.  Friedman, J.P., Barbara R. Kapnick, Webber, Oing, Moulton, JJ.M-4670. Anthony S., Petitioner-Respondent,  v. Docket No. F-06820/14Monique T. B., Respondent-Appellant.An appeal having been taken from the order of the Family Court, Bronx County, entered on or about April 30, 2018, and said appeal having been perfected and calendared for the Nov. ber 2018 Term of this Court, And respondent-appellant having mov.  for a calendar preference for said Term and to deny petitioner-respondent an adjournment of time to file his respondent’s brief, if sought, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is granted to the extent of maintaining the appeal on this Court’s calendar for the Nov. ber 2018 Term, and otherwise denied as academic, respondent’s brief having been timely filed.By: Dav.  Friedman, J.P., Barbara R. KapnickMarcy L. Kahn, Oing, JJ.M–4021. Eric Jones, Plaintiff-Appellant, v. 3417. Broadway LLC., Subway Restaurant, Subway Real Estate Corp., and Subway Real Estate II, LLC., a/k/aSubway Real Estate, LLC., Defendants-Respondents, Best of Midtown Food Inc. and Consolidated Edison Co. of New York, Inc., Defendants. Plaintiff-appellant, having mov. , for leav. to include an appendix to the appellant’s brief, (An appeal having been taken by plaintiff from an order of the Supreme Court, Bronx County, (Lizbeth Gonzalez, J.) And entered on or about May 30, 2018), Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied.By: Dav.  Friedman, J.P., Barbara R. KapnickMarcy L. Kahn, Oing, JJ.M-4034. The People of the State of New York, Respondent, v. Saul Olav. ria, Defendant-Appellant.Defendant having mov.  for an enlargement of time in which to file a notice of appeal from a judgment of the Supreme Court, Bronx County, rendered on or about February 1, 2018, for leav. to prosecute the appeal as a poor person upon the original record and a reproduced appellant’s brief, and for related relief, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is granted to the extent of deeming the notice of appeal as timely filed and permitting the appeal to be heard on the original record, except that a certified copy of the indictment(s) shall be substituted in place of the original indictment(s), and upon a reproduced appellant’s brief, on condition that appellant serv.  one copy of such brief upon the District Attorney of said county and files an original, fiv. hard copies and, if represented by counsel, one digital copy of such brief, together with the original record, pursuant to Section 1250.9 of the Practice Rules of the Appellate Div. ion.The court reporter shall promptly make and file with the criminal court (CPL §460.70) one transcript of the stenographic minutes of any proceedings pursuant to CPL §210.20, Arts. 710 and 730, and of the plea or trial and sentence. The Clerk shall furnish a copy of such transcripts to appellant’s counsel, without charge, the transcripts to be returned to this Court when appellant’s brief is filed.Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, New York 10005, Telephone No. 212-577-2523, is assigned as counsel for defendant-appellant for purposes of the appeal. The time within which appellant shall perfect this appeal is hereby enlarged until 180 days from the date of receipt of the complete record.By: Dav.  Friedman, J.P., Barbara R. KapnickMarcy L. Kahn, Oing, JJ.Joanne Corazza, as Administratrix forM-4077. the Estate of George Cooney, Plaintiff-Respondent,  v. Amchem Products, Inc.,et al., Defendants,-and Caterpillar, Inc., Defendant-Appellant.An appeal having been taken from a judgment of the Supreme Court, New York County (Martin Shulman, J.) entered October 12, 2017, And plaintiff-respondent having mov.  for an order striking defendant-appellant’s appendix and dismissing the appeal or, in the alternativ.  adjourning the appeal to the December 2018 Term, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the branch of plaintiff’s motion seeking to strike defendant-appellant’s appendix and to dismiss the appeal is denied, without prejudice to plaintiff-respondent filing a supplemental appendix, within 10 days of the date of entry of this order, with costs to abide the appeal. The branch of plaintiff’s motion seeking an adjournment of the appeal to the December 2018 term is deemed withdrawn pursuant to the correspondence from plaintiff’s counsel dated October 4, 2018, without prejudice to renew should plaintiff elect to file a supplemental appendix. CLERKBy: Dav.  Friedman, J.P., Barbara R. KapnickMarcy L. Kahn, Oing, JJ.-In the Matter ofDemi Jacqueline G., and William G., . M-4278. Children Under the Age of 18 Years, Alleged to be the children of, Docket Nos. P-16355-57/15F-166357/15Ebony W., Petitioner-Respondent,William G., Respondent-Appellant.- – - – - – - – - – - -June Callwood, Esq., Attorney for the Child.-An appeal having been taken from an order of the Family Court, New York County, entered on or about July 26, 2016, And, an amended order of this Court having been entered on May 1, 2018 (M-4247A), striking the designation of Israel P. Inyama, Esq., as assigned counsel for respondent-appellant and substituting Andrew J. Baer, Esq., as counsel for the purposes of prosecuting the aforesaid appeal, And assigned counsel having mov.  to be reliev.  as counsel, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is granted and Andrew J. Baer is reliev.  as counsel, and sua sponte, the appeal is dismissed.By: John W. Sweeny, Jr., J.P., Angela M. MazzarelliMarcy L. Kahn, Oing, Singh, JJ.William Pendergast, Plaintiff-Appellant-Respondent, v. Mutual Redev. opment Houses, Inc., Defendant-Respondent, -and RC Dolner LLC, Defendant-Respondent-Appellant.- – - – - – - – - – - – - -M-4684. Mutual Redev. opment Houses, Inc., Third-Party Plaintiff, v. Zurich American Insurance Company, Third-Party Defendant.- – - – - – - – - – - – - -RC Dolner LLC, Second Third-Party PlaintiffAppellant-Respondent, v. Miller Mechanical Systems LLC, Second Third-Party DefendantRespondent-Appellant. Appeals having been taken to this Court from the order of the Supreme Court, New York County, entered on or about March 31, 2017, and said appeals having been perfected, And plaintiff-appellant-respondent William Pendergast having mov.  to stay trial pending hearing and determination of the aforesaid appeals, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is granted. The Clerk is directed to maintain the appeal on the Nov. ber 2018 Term of this Court.By: John W. Sweeny Jr., J.P., Angela M. MazzarelliMarcy L. Kahn, Oing, Singh, JJ.M-4698. Ann Jane Cullen, Petitioner-Respondent, v. PWV Acquisition LLC, et al., Defendants-Appellants, Yorkshire & Lexington Towers, Inc., et al., Defendants, Nouv. u Elev. or Industries, Inc., Defendant-Respondent.Defendants-appellants having mov.  for an order staying the trial in the abov. entitled action pending hearing and determination of the appeal taken from the order of the Supreme Court, New York County, entered on or about August 14, 2018, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied. _CLERK By: John W. Sweeny Jr., J.P., Webber, Gesmer, Singh, Moulton, JJ.M-320. Jericho Group, Ltd., Plaintiff-Respondent, . v. Midtown Dev. opment, L.P., Defendant-Appellant. Plaintiff-respondent having mov.  for reargument of, or in the alternativ.  leav. to appeal to the Court of Appeals, from the decision and order of this Court, entered on May 22, 2018 (Appeal No. 6639N), Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied.By: Renwick, J.P., Rosalyn H. RichterMarcy L. Kahn, Gesmer, Singh, JJ.In the Matter of a Proceeding forSupport Under Article 4 ofthe Family Court Act.- – - – - – - – - – - – -.M-4417. Carmit D., Petitioner-Appellant, Docket No.F-36231/12-13/C/D v. Gil D., Respondent-Respondent.An appeal having been taken to this Court from the order of the Family Court, New York County, entered on or about Nov. ber 21, 2017, and said appeal having been perfected, And respondent-respondent having mov.  for an order directing petitioner to file a supplemental record on appeal to include the transcripts of proceedings in Family Court, in this matter that were referred to in the aforesaid order, and the affirmation of Jeffrey Berke dated July 31, 2017, together with the exhibits attached thereto, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is granted to the extent of adjourning the perfected appeal to the March 2019 Term. Petitioner-appellant is directed to obtain transcripts of the digital recordings, which are referred to in the Family Courtorder, and to file such transcripts in this Court for said March 2019 Term or, in the alternativ.  to file a sworn statement av. ring that such recordings are not av. lable for filing. The motion is otherwise denied.By: Renwick, J.P., Sallie Manzanet-Daniels. , Mazzarelli, Gesmer, Oing, JJ.Christopher Giancola, Plaintiff-Appellant, Natalia Giancola, Plaintiff, M-3374v. The Yale Club of New York City, Defendant-Respondent, The Yale Club of New York City, Third Party Plaintiff, v. P.S. Marcato Elev. or Co., Inc., Third Party Defendant-Respondent.Scottsdale Insurance Company, Third Party Defendant.Defendant/third-party plaintiff-respondent having mov.  for leav. to appeal to the Court of Appeals from the decision and order of this Court, entered on May 31, 2018 (Appeal No. 6719), Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied.By: Renwick, J.P., Judith J. Gishe, Mazzarelli, Kern Peter H. Moulton, JJ.M-4154. The People of the State of New York, Respondent,  v. Dwayne Faulkner, Defendant-Appellant.Defendant having mov. , pro se, for leav. to prosecute, as a poor person and for an extension of time to file an untimely notice of appeal from a judgment of the Supreme Court, New York County (McGrath, J.), rendered on or about January 2, 2018, for leav. to hav. the appeal heard upon the original record and a reproduced appellant’s brief, and for related relief, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is granted to the extent of deeming the mov. g papers as a timely filed notice of appeal and permitting the appeal to be heard on the original record, except that a certified copy of the indictment(s) shall be substituted in place of the original indictment(s), and upon a reproduced appellant’s brief, on condition that appellant serv.  one copy of such brief upon the District Attorney of said county and files an original, fiv. hard copies and, if represented by counsel, one digital copy of such brief, together with the original record, pursuant to Section 1250.9 of the Practice Rules of the Appellate Div. ion.The court reporter shall promptly make and file with the criminal court (CPL §460.70) one transcript of the stenographic minutes of any proceedings pursuant to CPL §210.20, Arts. 710 and 730, of the plea or trial and sentence. The Clerk shall furnish a copy of such transcripts to appellant’s counsel, without charge, the transcripts to be returned to this Court when appellant’s brief is filed.Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, New York 10005, Telephone No. 212-577-2523, is assigned as counsel for defendant-appellant for purposes of the appeal. The time within which appellant shall perfect this appeal is hereby enlarged until 180 days from the date of receipt of the complete record.By: Renwick, J.P., Gische, Kapnick, Gesmer, Kern, JJ.M–3628. Sushi Tatsu, LLC, Plaintiff-Respondent, v. Bahram Benaresh, doing businessas Bahram Benaresh Realty, Defendant-Appellant. Plaintiff-respondent having mov.  for reargument of, or in the alternativ.  for leav. to appeal to the Court of Appeals, from the decision and order of this Court, entered on June 26, 2018 (Appeal Nos. 6973-6974), Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied.By: Renwick, J.P., Gische, Kapnick, Gesmer, Kern, JJ.M-3673. Paul B. Gottbetter, et al., Plaintiffs-Appellants-Respondents, v. Crone Kline Rinde, LLP, et al., Defendants-Respondents-Appellants.- – - – - – - – - – - – - – -CKR Law LLP formerly known as Crone KlineRinde, LLP, Third-Party Plaintiff-RespondentAppellant, v. Adam Gottbetter, Third-Party Defendant, Venturini & Associates, et al., Third-Party Defendants-Respondents.-Defendants-respondents CKR Law, LLP and Crone Kline Rinde, LLP, having mov.  for reargument of the decision and order of this Court, entered on June 26, 2018 (Appeal No. 6979-6980), Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied.By: Renwick, J.P., GischeMarcy L. Kahn, Kern, Moulton, JJ.M-4297. The People of the State of New York, Respondent, v. Calv.  Spence, Defendant-Appellant.Defendant having mov.  for an enlargement of time in which to file a notice of appeal from a judgment of the Supreme Court, Bronx County, rendered on or about January 18, 2017, for leav. to prosecute the appeal as a poor person upon the original record and a reproduced appellant’s brief, and for related relief, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is granted to the extent of deeming the mov. g papers as a timely filed notice of appeal and permitting the appeal to be heard on the original record, except that a certified copy of the indictment(s) shall be substituted in place of the original indictment(s), and upon a reproduced appellant’s brief, on condition that appellant serv.  one copy of such brief upon the District Attorney of said county and files an original and 5 copies, and if represented by counsel, one digital copy of such brief, together with the original record, pursuant to 22 NYCRR 1250.9 of the Practice Rules of the Appellate Div. ion.The court reporter shall promptly make and file with the criminal court (CPL §460.70) one transcript of the stenographic minutes of any proceedings pursuant to CPL §210.20, Arts. 710 and 730, and of the plea or trial and sentence. The Clerk shall furnish a copy of such transcripts to appellant’s counsel, without charge, the transcripts to be returned to this Court when appellant’s brief is filed.Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, New York 10005, Telephone No. 212-577-2523, is assigned as counsel for defendant-appellant for purposes of the appeal. The time within which appellant shall perfect this appeal is hereby enlarged until 180 days from the date of receipt of the complete record.By: Renwick, J.P., GischeMarcy L. Kahn, Kern, Moulton, JJ.M-4311. The People of the State of New York, Respondent, v. Benjamin Lanzot, Defendant-Appellant.Defendant having mov.  for an enlargement of time in which to file a notice of appeal from a judgment of the Supreme Court, New York County, rendered on or about May 2, 2017, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is granted to the extent of deeming the mov. g papers a timely filed notice of appeal.CLERKBy: Rosalyn H. Richter, J.P., Sallie Manzanet-Daniels, Kapnick, Kern, Moulton, . Justices.In the Matter of a Proceeding forVisitation Under Article 6 of theFamily Court Act.- – - – - – - – - – - – - – -Angel N., also known as Angel L. N., M-4498. Petitioner-Appellant, M–2603. Docket Nos. V-24225-07/15B v. 9-09/15BV-26040-09/15BElizabeth A., Respondent-Respondent.Respondent-respondent, pro se, having mov.  for leav. to respond, as a poor person, to the appeal taken from an order of the Family Court, Bronx County, entered on or about January 15, 2016, said appeal treated as one from an order of the same Court and referee entered on or about October 28, 2015, and for assignment of counsel, a free copy of the transcript, and for related relief, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, it isOrdered that the motion is granted to the extent of(l) assigning, pursuant to §1120 of the Family Court Act, Lewis D. Calderon, Esq., 155-03 Jamaica Av. ue, Jamaica, NY 11432, Telephone No. (718) 883-1560, as counsel for purposes of responding to the appeal; (2) permitting mov. t to respond to the appeal upon a reproduced respondent’s brief, on condition that one copy of such brief be serv.  upon the attorney for the child-appellant and an original and fiv. hard copies and, if represented by counsel, one digital copy thereof, be filed with this Court pursuant to 22 NYCRR 1250.9.Sua sponte, the perfected appeal is adjourned to the January 2019 Term.