APPELLATE DIVISION, FIRST DEPARTMENT: NOVEMBER 20, 2018

Acosta, P.J., Friedman, Manzanet-Daniels, Webber, Singh, JJ.7624 Unicorn Construction Enterprises, Index 162714/15Inc.,Plaintiff-Appellant,-against-The City of New York,Defendant-Respondent.__________________________Goetz Fitzpatrick LLP, New York (Donald J. Carbone of counsel),for appellant.Zachary W. Carter, Corporation Counsel, New York (Elina Druker ofcounsel), for respondent._________________________Order, Supreme Court, New York County (Margaret A. Chan,J.), entered June 13, 2017, which granted defendant’s motion todismiss the complaint, unanimously modified, on the law, to denythe dismissal of the complaint with regards to the West 148thStreet Pedestrian Bridge and the Inwood Hill Park PedestrianBridge, and otherwise affirmed, without costs.Plaintiff Unicorn Construction Company contracted withdefendant City of New York in 2007 to rehabilitate 12 Citybridges. The complaint contains causes of action for breach ofcontract and quantum meruit.As an initial matter, the court properly considereddocumentary evidence submitted by the City on its motion todismiss pursuant to CPLR 3211(a)(7), including the municipalcontract, certificates of substantial completion, and extensionrequests, and correctly concluded that plaintiff has no cause ofaction (see Basis Yield Alpha Fund [Master] v Goldman SachsGroup, Inc., 115 AD3d 128, 135 [1st Dept 2014]).Plaintiff argues that the City never issued a substantialcompletion certificate for all the work under the contract, andthus the time limitations on plaintiff’s claims were nevertriggered. Plaintiff cites to the contract’s definition of“Work” at Article 2.1.33, contending that it encompasses all workrequired to complete the project, and thus, the City wasobligated to issue a certificate of substantial completion onlyafter all 12 bridges were substantially completed. Since theCity failed to do so, plaintiff posits, the time requirements forfiling a claim were never triggered.The City admits that it did not issue a certificate ofsubstantial completion once all the 12 bridges were completed.It argues that under the contract it was not required to issue acertificate of completion for all 12 bridges. It notes that2plaintiff’s actions and communications, including its requestsfor payment, comported with the City’s method of considering theprogress of each bridge individually and issuing certificates asthe work on each bridge was substantially completed.By a time extension request dated July 22, 2014, plaintiffacknowledged that the work on 10 bridges was complete and anextension was needed on two pedestrian bridges, West 148th StreetPedestrian Bridge and Inwood Hill Park Pedestrian Bridge.Pursuant to Article 13.8.2(c) of the contract, to request such anextension, plaintiff was required to make a “statement that theContractor waives all claims except for those delineated in theapplication, and the particulars of any claims which theContractor does not agree to waive.” Plaintiff complied with thisprovision and stated that “we agree to and hereby waive andrelease any and all claims . . . except the items of claim whichwe hereby reserve . . . [and] reserve[] the right to file a claimfor all incomplete bridges including but not limited to priceescalation and extended overhead.” Accordingly, as to the 10completed bridges, plaintiff expressly waived all its claims inthe July 22, 2014 time extension request.However, with respect to the claims as to the twoaforementioned pedestrian bridges, we find that looking solely to3the plain language used by the parties within the four corners ofthe contract, there is an ambiguity in the interpretation of thecontract that cannot be resolved on a CPLR 3211 motion to dismiss(see Telerep, LLC v U.S. Intl. Media LLC, 74 AD3d 401, 402 [1stDept 2010]).On August 20, 2014, the City issued certificates ofsubstantial completion for the two pedestrian bridges. Thereremains an issue of fact as to whether Article 2.1.33 and Article44 require the City to submit a certificate of substantialcompletion after “the Work” had been performed on all 12 bridgesor whether the parties’ course of conduct demonstrated that therewould be separate certificates of substantial completion issuedfor each bridge (see Citibank, N.A. v 666 Fifth Ave. Ltd.Partnership, 2 AD3d 331, 332 [1st Dept 2003]).We have considered plaintiff’s remaining contentions andfind them unavailing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK4Acosta, P.J., Renwick, Mazzarelli, Gesmer, Singh, JJ.7762-7763 In re Michael B.,Petitioner-Appellant,-against-Latasha T.-M.,Respondent-Respondent._________________________Carol L. Kahn, New York, for appellant.Diaz & Moskowitz, PLLC, New York (Hani M. Moskowitz of counsel),for respondent.Dawne A. Mitchell, The Legal Aid Society, New York (Judith Sternof counsel), attorney for the child._________________________Appeal from order, Family Court, Bronx County (Robert D.Hettleman, J.), entered on or about August 4, 2017, which, aftera hearing, inter alia, awarded primary physical custody of thesubject child to respondent mother, unanimously dismissed,without costs, as abandoned. Order, same court and Judge,entered on or about December 13, 2017, which, to the extentappealed from as limited by the briefs, denied the father’spetition for modification of custody, unanimously reversed, onthe law, without costs, and the petition granted to the extent ofremanding the matter for a full hearing on the issue of whetherit is in the child’s best interests to relocate with his mother5to Florida on a permanent basis. The schedule for the father’sphone/email/electronic contact with the child and for his summervisitation set forth in the August 4, 2017 order shall remain ineffect pending further order of the Family Court.The appeal from the August 4, 2017 custody order isdismissed as abandoned, as petitioner father currently raises nochallenge to that determination (see e.g. Ifill-Colon v 153 E.149th Realty Corp., 160 AD3d 583, 584 [1st Dept 2018]; Dias vStahl, 256 AD2d 235, 237 [1st Dept 1998]).On or about September 13, 2017, the father filed a petitionfor writ of habeas corpus and a petition alleging that the motherhad violated the August 4, 2017 custody order in that he had notseen or heard from the child or the mother in two weeks. TheFamily Court issued a writ of habeas corpus dated September 13,2017 directing the mother to produce the child in court onSeptember 19, 2017. It appears that this never occurred.On December 13, 2017, Family Court held a brief hearing atwhich the father testified in person and the mother testified bytelephone from Florida. No other witnesses were called, and nodocumentary evidence was introduced. The mother alleged that shehad gone to Florida on September 4, 2017 to visit her mother,learned two days later that she had been evicted from her Bronx6apartment while she was in Florida, and claimed that herphysician had advised her not to travel because she was in thefinal month of a high-risk pregnancy. The mother testified thatshe did not intend to return to New York.Family Court properly found that the mother violated theAugust 4, 2017 order by intentionally relocating to Floridawithout the father’s consent or permission of the court, and thatthis impaired the father’s visitation rights. The court did notabuse its discretion in remedying this impairment by orderingthat the father have visitation on particular dates during thechild’s upcoming winter and spring school breaks, and bydirecting the mother to pay for the child’s travel expenses (seeMatter of Yeager v Yeager, 110 AD3d 1207 [3d Dept 2013]).Accordingly, we decline to disturb Family Court’s determinationof the father’s violation petition.Family Court correctly determined that the mother’stestimony about her unilateral relocation constituted a change incircumstances, triggering an inquiry into whether the childremaining in the mother’s custody in Florida is in the child’sbest interests (see Matter of Bennett v Abbey, 141 AD3d 882, 885[3d Dept 2016]). However, the court abused its discretion inmaking a final determination on that issue without a full hearing7at which the parties and the child’s attorney had an opportunityto present relevant evidence. The question of a child’srelocation out of state necessarily requires “due considerationof all the relevant facts and circumstances and with predominantemphasis being placed on what outcome is most likely to serve thebest interests of the child (Tropea v Tropea, 87 NY2d 727, 739[1996]). [C]ustody and visitation decisions should be made with aview toward minimizing the parents’ discomfort and maximizing thechild’s prospects of a stable, comfortable and happy life” (id.at 742). Relevant factors include the parties’ good faith inrequesting or opposing the move, the child’s attachments to eachparent, the quality of the life-style that the child would haveif the proposed move were permitted or denied, the effect thatthe move may have on any extended family relationships, andwhether a visitation plan can be achieved that permits thenoncustodial parent to maintain a meaningful parent-childrelationship (id.). In this case, since the father had raisedconcerns in his petition about the child’s education, the partiesshould have had the opportunity to present evidence about this,in addition to other relevant factors.8We have considered the father’s remaining arguments and findthem unavailing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK9Renwick, J.P., Richter, Tom, Kapnick, Webber, JJ.1009 The People of the State of New York, Ind. 5490/01Respondent,-against-Angelo Tejeda,Defendant-Appellant._________________________Jorge Guttlein & Associates, New York (Juan-Carlos Guttlein ofcounsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser ofcounsel), for respondent._________________________Judgment, Supreme Court, New York County (Brenda G. Soloff,J. at plea and sentencing; Patricia M. Nuñez, J. atpostconviction hearing), rendered July 13, 2004, convictingdefendant of criminal sale of a controlled substance in the thirddegree and sentencing him to a term of 1. to 5. years,unanimously affirmed.We previously held this appeal in abeyance (141 AD3d 444[1st Dept 2016]) in order to afford defendant the opportunity todemonstrate a “reasonable probability” that he would not havepleaded guilty had he been made aware of the deportationconsequences of his plea (see People v Peque, 22 NY3d 168, 199,200 [2013], cert denied 574 US __, 135 S Ct 90 [2014]). Ahearing was held in October, 2017. Based upon the evidence10adduced at the hearing, we agree with the hearing court thatdefendant did not meet that burden.We find no basis for disturbing the hearing court’scredibility determinations. The court correctly weighed therelevant Peque factors and found defendant’s proof did notestablish the requisite reasonable probability. Defendant’sevidence of strong family ties to the United States, and his owntestimony that he was not advised by counsel or the court of theimmigration consequences of his negotiated plea, were outweighedby the strength of the evidence against defendant in theunderlying drug case, the potential for a life sentence, and thevery favorable terms of the disposition (see e.g. People v Manon,151 AD3d 626 [1st Dept 2017], lv denied 30 NY3d 981 [2017]).We have considered defendant’s remaining arguments regardingthe Peque hearing and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK11Friedman, J.P., Gische, Tom, Kern, Singh, JJ.6697 Gwendolyn Snipes, Index 303681/10Plaintiff-Appellant,-against-Kevin Schmidt, et al.,Defendants-Respondents._____________________Silbowitz Garafola Silbowitz Schatz & Frederick, LLP, New York(Howard Schatz of counsel), for appellant.Dwyer & Taglia, New York (Gary J. Dwyer of counsel), for KevinSchmidt and Ramakrishna Transportation, Inc., respondents.Caitlin Robin and Associates, PLLC, New York (Kevin Volkommer ofcounsel), for Regency Extended Care Center, Inc., respondent._____________________Appeal from order, Supreme Court, Bronx County (Doris M.Gonzalez, J.), entered on or about September 29, 2017, whichgranted defendants Kevin Schmidt and Ramakrishna Transportation,Inc.’s motion to dismiss the complaint on the ground of theunreasonable delay in substitution pursuant to CPLR 1021,unanimously dismissed, without prejudice, without costs, for lackof jurisdiction to entertain the appeal.The plaintiff in this personal injury action died afterdiscovery was complete, leaving no surviving relatives and a willnaming four beneficiaries. Although a petition was filed inSurrogate’s Court seeking the appointment of an executor and the12issuance of letters testamentary, four years later, noappointment had been made. Defendants moved by order to showcause, on notice to the four persons potentially interested inthe estate, to dismiss the complaint on the ground of the delayin seeking substitution. None of the interested personsappeared, and the motion was granted.Although the decedent’s counsel appeared in opposition tothe motion, his power to act on the decedent’s behalf hadterminated upon her death, and he did not state the basis of hisor his law firm’s authority to act in the matter (see Silvagnoliv Consolidated Edison Empls. Mut. Aid Socy., 112 AD2d 819, 820[1st Dept 1985]). Accordingly, counsel has no standing to appealfrom the order that dismissed the complaint pursuant to CPLR 1021(see Thomas v Benedictine Hosp., 8 AD3d 781, 782 [3d Dept2004]).The dismissal of this appeal does not preclude a new motionat Supreme Court to substitute a representative for plaintiffupon Surrogate Court’s appointment of a representative for thelate plaintiff’s estate (see Silvagnoli, 112 AD3d at 821). Sucha representative would be permitted to move for vacatur of thedismissal, upon a showing of reasonable excuse for the delay,13merit and no undue prejudice to defendants (see Thomas, 8 AD3d at782).The Decision and Order of this Court enteredherein on May 29, 2018 (161 AD3d 670 [1st Dept2018]) is hereby recalled and vacated (see M-3196 &M-3559 decided simultaneously herewith).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK14Sweeny, J.P., Gische, Mazzarelli, Webber, Kahn, JJ.7376- Index 312320/147377- 100806/177377A &M-4450 Jacqueline Shabot Svatovic,Plaintiff-Respondent-Appellant,-against-Zarko Svatovic,Defendant-Appellant-Respondent.- – - – -Zarko Svatovic,Plaintiff-Appellant,-against-Jacqueline Shabot Svatovic,Defendant-Respondent._________________________Zarko Svatovic, appellant-respondent/appellant pro se.Thomas Torto, New York, for respondent-appellant/respondent._________________________Judgment of divorce, Supreme Court, New York County (MatthewF. Cooper, J.), entered March 22, 2017, which to the extentappealed from as limited by the briefs, after a hearing,determined pro se defendant husband’s distributive share of theparties’ former marital residence as $250,000, unanimouslymodified, on the law, to declare that enforcement of the parties’separation agreement is barred by the applicable statute oflimitations and that all claims regarding the sale of the former15marital residence and payment of equitable distribution therefromare dismissed as time barred, without costs. The matter isremanded to Supreme Court for an amended judgment of divorce inaccordance herewith, which shall also provide for husband to paywife restitution in the sum of $250,000, the payment she made toavoid sale of the former marital residence. Appeal from order,Supreme Court, New York County (Richard F. Braun, J.), entered onor about September 28, 2017, which transferred the action toMatthew F. Cooper, J., unanimously dismissed, without costs.Order, same court (Matthew F. Cooper, J.), entered on or aboutOctober 5, 2017, which, to the extent appealed from, granteddefendant wife’s motion to dismiss the complaint pursuant to CPLR3211(a)(5), and denied sanctions, unanimously affirmed, withoutcosts.Husband’s appeal and wife’s cross appeal pertain to thejudgment of divorce in a matrimonial action that wife commencedin 2014. Husband separately appeals from Supreme Court’sdismissal of a subsequent contract action he commenced in 2017,after the parties were divorced. Husband also appeals from anorder by Justice Braun transferring the contract action toJustice Cooper.Justice Braun’s order transferring the contract action to16Justice Cooper is not appealable as of right because it was notrendered in connection with a motion made on notice to theparties (see CPLR 5701[a][2]). Since husband never sought leaveto appeal, husband’s appeal from that order is dismissed. Werewe to reach the merits, we would find that the transfer was aprovident exercise of discretion (see Drasser v STP Assoc., LLC,90 AD3d 701 [2d Dept 2011]).The most contentious issue framed by both of husband’sappeals and wife’s cross appeal concerns disposition of theformer marital residence, a coop apartment in Manhattan that waspurchased in 1981 for $135,000. At the time of trial, it wasvalued at approximately $2,000,000. Husband brought an order toshow cause to compel the immediate sale of the apartment so hecould collect a share of the proceeds pursuant to the parties’agreement. He claimed he was entitled to a share based upon thevalue of the apartment at the time of trial. Wife, however,opposed any sale of the apartment on the basis that enforcementwas barred by the statute of limitations, or alternatively, thatcircumstances had changed in the time since the parties’agreement, rendering it unenforceable under the doctrines oflaches and equitable estoppel. In her cross appeal, she seeks torecoup the payment she made to husband pursuant to the judgment17to avoid having to sell the apartment. Alternatively, she claimsthat Supreme Court correctly decided that husband’s distributiveshare regarding the apartment should be no greater than what asale would have yielded had the apartment been sold in 2003 whentheir youngest daughter became emancipated.The parties, now in their 70′s, were married in 1974 andhave two children. The apartment was purchased with wife’ssavings and gifts from her family. In 1994, husband moved out ofthe apartment and the parties entered into a separationagreement, formalizing their decision to live apart. Theseparation agreement, dated September 12, 1995, resolved theissues related to custody, support and equitable distribution.The apartment was their only marital asset.It was agreed that wife could continue to reside in theapartment with the children until they attained 22 years of age,and then the apartment would be sold as “quickly” as possible.Upon sale, wife would be entitled to a separate property creditof $135,000 and a $100,000 property distribution from the netproceeds. Net proceeds in excess of $235,000 would be used topay the children’s college education expenses, and the remainingbalance would then be divided equally between the parties aspayment of their distributive shares.18The separation agreement required that wife make a $47,000up front payment to husband as a condition for his agreement tosign over the shares of stock and proprietary lease to her. Shemade the necessary payment and obtained those documents. Theparties also agreed that capital gains tax resulting from thefuture sale of the apartment would be paid solely by wife anddeducted from her share of the net sale proceeds. Althoughhusband agreed he would provide health insurance for the family,he was largely unemployed throughout the 20 years of theirseparation and he never met this obligation. It was wife whoprovided the family, including husband, with health insurance.He received this benefit throughout their separation, and theparties apparently never filed for divorce so husband couldretain such insurance. Husband made representations to wife thatshe could continue to live in the apartment indefinitely and thatit did not have to be sold because they would eventually bequeathit to their children. Almost immediately after their separation,husband married his girlfriend (BB) in Croatia. Once wifecommenced this divorce action, husband rectified his illegal,simultaneous marriage to two different women by divorcing BB inCroatia.At trial, husband sought to compel the immediate sale of the19apartment and distribution of the sale proceeds, not only inaccordance with the terms of the separation agreement, but alsoat its current value of approximately $2,000,000. Wife, however,was opposed to selling the apartment on the basis that since theparties’ separation she alone had borne all the expensesattendant to maintaining the apartment, including assessments andany improvements and repairs that were needed. Although husbandhad made child support payments, they did not cover all of thechild-related expenses, and his child support obligation hadended in May 2003 upon emancipation. Alternatively, wife soughtto have husband’s distributive share of the net proceeds from thesale of the apartment capped at what it would have been had thesale taken place in May 2003, when the condition for selling theapartment was met.The trial court credited wife’s testimony regardinghusband’s representations to her that he did not want a divorceand that she could continue to live in the apartment indefinitelybecause it was beneficial for him to have health insurance andthey would bequeath the apartment to their children (see Melcherv Greenberg Traurig, LLP, 102 AD3d 497, 501 [1st Dept 2013], revdon other grounds 23 NY3d 10 [2014]). The court also creditedwife’s testimony that she had maintained the expenses for the20apartment without any help from husband and paid most of theirchildren’s expenditures, also without contribution from him.Finding that husband’s delay in enforcing the separationagreement had prejudiced wife, the court decided that husband wasbarred under the doctrines of equitable estoppel and laches fromcompelling a sale of the apartment. The court also determinedthat husband was only entitled to a distributive share of theappraised value of the apartment as of May 2003. After applyingcertain credits due to wife, the court ordered that husband wasentitled to a $250,000 payment from wife, which she paid. Thetrial court did not address wife’s statute of limitationsargument. In her cross appeal, wife seeks recoupment of thatpayment.Notwithstanding that the parties’ rights under theirseparation agreement had been adjudicated in the matrimonialaction, in 2017, following entry of the judgment of divorce,husband commenced a separate contract action against wife,alleging breach of the separation agreement. He again sought theimmediate sale of the apartment, despite the judgment of divorcespecifying otherwise. After the case was transferred to JusticeCooper, wife moved to dismiss the action on the basis of resjudicata and the statute of limitations; she also moved for21sanctions. The court granted her motion to dismiss, observingthat the issues raised in the contract action were identical tothose fully litigated in the matrimonial action and thathusband’s claims were time barred by both the statute oflimitations and res judicata. Wife’s motion for sanctions was,however, denied.Husband’s claims in the divorce action are barred by theapplicable statute of limitations. A separation agreement is aseparate, enforceable contract, like any other, and it is subjectto the six-year statute of limitations set forth in CPLR 213(2)(Tauber v Lebow, 65 NY2d 596, 598 [1985] [superceded by statutewith respect to support payment arrears]; Allard v Allard, 145AD3d 1254, 1256 [3d Dept 2016]; Matter of Scola, 118 AD3d 895,896 [2d Dept 2014], citing Fade v Pugliani/Fade, 8 AD3d 612 [2dDept 2004]; Chayes v Chayes, 28 AD3d 355, 356-357 [1st Dept2006]). The parties’ separation agreement required that theapartment be put up for sale and sold as quickly as possible oncethe children were emancipated. That condition was met in May2003, and that is when husband’s cause of action accrued,triggering the applicable six-year statute of limitations thatapplies to contract claims (see Scola at 896). The obligation tosell the apartment and distribute the proceeds was a fixed22obligation at an ascertainable point in time (Makarchuk vMakarchuk, 59 AD3d 1094, 1095 [4th Dept 2009]). Rather thanbringing legal action at that time, husband did not act. Hefailed to act and waited to pursue that claim until after theapplicable six-year limitations period had expired. Sincehusband’s claims are completely barred, he cannot compel a saleof the apartment, nor is he entitled to any distributive share ofany interest he believes he has in the apartment.Were we to reach wife’s claim under the doctrines ofequitable estoppel and laches, we would find that the same resultconcerning the sale obtains (see e.g. Jean v Joseph, 117 AD3d989, 990 [2d Dept 2014]).The subsequent breach of contract action was correctlydismissed by the motion court on the ground of res judicata andthe statute of limitations. A valid final judgment bars futureactions between the same parties on the same cause of action.The contract action involves the same parties and identicalclaims to those that were already decided in the divorce (O’Brienv City of Syracuse, 54 NY2d 353, 357 [1981]). All other claimsarising from the separation agreement, including those related towife’s pension, are likewise barred by res judicata becausehusband failed to raise them in the matrimonial action (see23Boronow v Boronow, 71 NY2d 284, 289 [1988]). The six-yearstatute of limitations also bars this action.As the wife did not cross-appeal from the denial of hermotion for sanctions against husband, we cannot award this relief(see Seldon v Spinnell, 95 AD3d 779 [1st Dept 2012], lv denied 20NY3d 857 [2013]).Wife is entitled to restitution of the $250,000 payment thatshe made to husband as a condition for the judgment of divorceentered March 22, 2017, allowing her the option of buying outhusband’s interest. We remand this matter to the trial court foran amended judgment in accordance herewith; such amended judgmentshall provide for a money judgment in wife’s favor in the amountof $250,000.24We have considered other arguments raised by husband in eachof his appeals and find them unavailing.M – 4450 – Svatovic v SvatovicMotion to strike reply briefand allow submission of reply denied.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK25Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7643- Ind. 169/157643A The People of the State of New York,Respondent,-against-Howard Stokes,Defendant-Appellant._________________________Christina A. Swarns, Office of the Appellate Defender, New York(Eunice C. Lee of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Michael D.Tarbutton of counsel), for respondent._________________________Judgment, Supreme Court, New York County (Melissa C.Jackson, J.), rendered May 12, 2016, convicting defendant, uponhis plea of guilty, of burglary in the second degree and robberyin the third degree, and sentencing him to an aggregate term offive years, and order (same court and Justice), entered on orabout October 19, 2017, which denied defendant’s CPL 440.20motion to set aside his sentence, unanimously affirmed.Defendant made a valid waiver of his right to appeal. Thecourt’s oral colloquy with defendant concerning the waiveravoided conflating the right to appeal with the rights normallyforfeited upon a guilty plea, and an isolated remark by thecourt, when viewed in context, had no such effect. The oral26colloquy met or exceeded the minimum standards for such acolloquy (see People v Bryant, 28 NY3d 1094 [2016]), and it wassupplemented by a written waiver that defendant signed afterconsulting with counsel. Defendant’s valid waiver of the rightto appeal forecloses his claims that the court misunderstood thelawful scope of sentencing and that the sentence was excessive(see People v Brito, 159 AD3d 410 [1st Dept 2018], lv denied 31NY3d 1011 [2018]).Defendant’s CPL 440.20 motion was properly denied, becausethe sentence imposed was not unlawful.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK27Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7644 In re Raheem D.,A Person Alleged to be aJuvenile Delinquent,Appellant.- – - – -Presentment Agency_________________________Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazarof counsel), for appellant.Zachary W. Carter, Corporation Counsel, New York (Deborah E.Wassel of counsel), for presentment agency._________________________Order of disposition, Family Court, Bronx County (Robert D.Hettleman, J.), entered on or about June 15, 2017, whichadjudicated appellant a juvenile delinquent upon a fact-findingdetermination that he committed acts that, if committed by anadult, would constitute the crimes of sexual abuse in the firstand third degrees (two counts each) and endangering the welfareof a child, and placed him on probation for a period of 18months, unanimously affirmed, without costs.The court’s finding was not against the weight of theevidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]).Issues of credibility, including the weight given to minorinconsistencies, were properly considered by the court, and thereis no basis for disturbing its determinations.28The court providently exercised its discretion inadjudicating appellant a juvenile delinquent and placing him onprobation, because this was the least restrictive dispositionalalternative consistent with appellant’s needs and the community’sneed for protection (see Matter of Katherine W., 62 NY2d 947[1984]), in light of the serious sex offense committed against amuch younger child. An adjournment in contemplation of dismissalwould not have ensured that, after its term expired, appellantwould remain in and satisfactorily complete an appropriate sexoffender treatment program.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK29Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7645 Alan S. Ripka, Index 157823/14Plaintiff-Appellant,-against-Seth Rotter,Defendant-Respondent._________________________Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaacof counsel), for appellant.Frederick J. Martorell, P.C., Brooklyn (Frederick J. Martorell ofcounsel), for respondent._________________________Order, Supreme Court, New York County (Eileen A. Rakower,J.), entered March 16, 2015, which, to the extent appealed fromas limited by the briefs, granted defendant’s motion to dismissthe complaint, and denied plaintiff’s cross motion for leave toamend the complaint, unanimously affirmed, without costs.Plaintiff alleges that defendant is required to reimbursehim for 50% of the judgment entered against him personally in aprior action (Lifeline Funding, LLC v Ripka, 114 AD3d 507 [1stDept 2014] [the Lifeline action), pursuant to a Stipulation ofSettlement entered into between the parties concerning theirobligations for debts of their former law firm. The motion courtcorrectly determined that the breach of contract and negligenceclaims are barred by the applicable statutes of limitations (CPLR30213; 214), because this action was commenced more than six yearsafter the underlying law firm debt became due and more than threeyears after defendant's alleged negligence occurred in failing tosatisfy the debt. The indemnification claim was correctlydismissed because there is no indemnity provision in theStipulation of Settlement (see Ruiz-Hernandez v TPE NWI Gen., 106AD3d 627 [1st Dept 2013]). Moreover, defendant cannot berequired to indemnify plaintiff for the judgment entered againsthim in the Lifeline action, because the judgment was based onplaintiff’s own wrongful conduct (see Trump Vil. Section 3 v NewYork State Hous. Fin. Agency, 307 AD2d 891, 895 [1st Dept 2003],lv denied 1 NY3d 504 [2003]).The motion court properly denied plaintiff’s cross motionfor leave to amend his complaint to assert a contribution claim,because contribution is not available “between two parties whosepotential liability to a third party is for economic loss31resulting only from a breach of contract” (Board of Educ. ofHudson City School Dist. v Sargent, Webster, Crenshaw & Folley,71 NY2d 21, 23 [1987]; see Bloostein v Morrison Cohen LLP, 157AD3d 432 [1st Dept 2018]).We have considered plaintiff’s remaining arguments and findthem unavailing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK32Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7646 Maryellis Bunn, Index 158770/13EPlaintiff-Appellant-Respondent,-against-The City of New York,Defendant-Respondent,Port Motors Lincoln-Mercury, Inc.,et al.,Defendants-Respondents-Appellants._________________________Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaacof counsel), for appellant-respondent.Hoffman, Roth & Matlin, LLP, New York (Joshua Hoffman ofcounsel), for Port Motors Lincoln-Mercury, Inc., respondentappellant.Collins, Fitzpatrick & Schoene, LLP, White Plains, (Wilton R.Fernandez of counsel), for Aldair Lemos and Lucemi Love,respondents-appellants.Zachary W. Carter, Corporation Counsel, New York (Daniel Matza-Brown of counsel), for respondent._________________________Order, Supreme Court, New York County (Lynn R. Kotler, J.),entered November 15, 2016, which denied plaintiff’s motion todeclare defendant Port Motors Lincoln-Mercury, Inc. (Port Motors)the owner of the subject motor vehicle, and for summary judgmentagainst Port Motors and defendant Aldair Lemos on the issue ofliability, denied Lemos and defendant Lucemi Love’s cross motionfor summary judgment dismissing the complaint and all cross33claims against Love and for summary judgment on their cross claimagainst Port Motors declaring it the owner of the subject motorvehicle, and denied Port Motors’s separate motion for summaryjudgment dismissing the complaint and all cross claims againstit, unanimously modified, on the law, to vacate so much of theorder as denied plaintiff’s motion, and Lemos and Love’s crossmotion, to grant the branch of plaintiff’s motion and of thecross motion for a declaration that Port Motors was the owner ofthe subject motor vehicle, and it is so declared, to grant thatbranch of plaintiff’s motion for summary judgment against PortMotors and Lemos on the issue of liability, and to grant thatbranch of Lemos and Love’s cross motion for summary judgmentdismissing the complaint and all cross claims against Love, andotherwise affirmed, without costs.Because Port Motors “fail[ed] to comply with the statutoryrequirements regarding vehicle registration procedures . . . [it]is estopped from denying ownership of the vehicle and is fullyliable to the plaintiff as if it were the ‘owner’ of the vehicle”(Brown v Harper, 231 AD2d 483, 484 [2d Dept 1996]; see Switzer vAldrich, 307 NY 56, 59-60 [1954]; Getz v Searles, 265 AD2d 839,840 [4th Dept 1999]). Although this Court has held that “titleto a motor vehicle is transferred when the parties intend such34transfer to occur” (Godfrey v G.E. Capital Auto Lease, Inc., 89AD3d 471, 477 [1st Dept 2011]), here, there is no evidence thatthe parties intended to transfer title to the vehicle from PortMotors to Love prior to the accident. Unlike in Godfrey, here,none of the paperwork to begin transferring formal ownership ofthe vehicle to Love had been executed at the time the accidentoccurred. Moreover, the purchase order signed by Love containedlanguage allowing Love to cancel the order and be refunded herdown payment if she did not agree to the credit terms once theywere presented to her. It is undisputed that Love was neverpresented with any credit terms prior to the accident and thatshe still had the right to cancel the transaction.We reject the argument that the Port Motors employee whoallowed Lemos and Love to leave the dealership with the subjectvehicle without complying with those registration procedures wasacting outside the scope of his employment (see Geotel, Inc. vWallace, 162 AD2d 166, 168 [1st Dept 1990], lv denied, dismissed76 NY2d 917 [1990]). Accordingly, Port Motors, being estoppedfrom denying ownership of the vehicle, is responsible for Lemos’snegligence, to whom express or implied permission to operate thevehicle was given (see Vehicle and Traffic Law § 388[1]).Because Port Motors is the de facto owner of the subject35vehicle, the action should be dismissed against Love, as shouldany and all cross claims against her.Finally, plaintiff should have been awarded summary judgmenton the issue of liability against Lemos and, given our holdingabove, Port Motors. The metal barricade standing in the roadwaywas not “a sudden and unexpected circumstance which le[ft] littleor no time for thought, deliberation or consideration, orcause[d] [Lemos] to be reasonably so disturbed that [he] [had to]make a speedy decision without weighing alternative courses ofconduct . . . ” (Rivera v New York City Tr. Auth., 77 NY2d 322,327 [1991]). Rather, by colliding with the barricade andpropelling it onto the sidewalk, where it struck a pedestrian,Lemos failed to both operate his vehicle in a manner that wasreasonable and prudent under the circumstances (see e.g. DiCoccov Center for Dev. Disabilities, 264 AD2d 803 [2d Dept 1999]) andto see what was there to be seen through the ordinary use of his36senses (see e.g. Aponte v Vani, 155 AD3d 929, 930 [2d Dept2017]).We have considered Port Motors’s remaining contentions andfind them unavailing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK37Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7647 In re Asia Lynn S.,A Dependent Child Under EighteenYears of Age, etc.,Regina P.,Respondent-Appellant,Good Shepherd Services,Petitioner-Respondent._________________________Andrew J. Baer, New York, for appellant.Geoffrey P. Berman, Larchmont, for respondent.Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel ofcounsel), attorney for the child._________________________Order, Family Court, Bronx County (Valerie A. Pels, J.),entered on or about January 3, 2017, which, to the extentappealed from, revoked a May 19, 2014 order suspending judgmentfor 12 months, terminated respondent mother’s parental rights tothe subject child, and committed the custody and guardianship ofthe child to petitioner agency and the Commissioner of SocialServices for the purposes of adoption, unanimously affirmed,without costs.The preponderance of the evidence in the latest proceedings,including testimony that the mother failed to visit the child,attend therapy, or complete a parenting skills program, all38support the conclusion that the mother materially violated theterms of the suspended judgment (Matter of Kendra C.R., 68 AD3d467 [1st Dept 2009], lv dismissed and denied 14 NY3d 870 [2010]).Further, the child has been in foster care since she was twomonths old, and has developed a positive relationship with herpresent foster mother, who provides for her special needs andwants to adopt her (see Matter of Jada Serenity H., 60 AD3d 469,470 [1st Dept 2009]).We have considered and rejected the mother’s remainingarguments.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK39Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7648 La Nona Jean Salinas, Index 107662/10Plaintiff-Appellant,-against-World Houseware Producing Co.,Ltd., et al.,Defendants-Respondents._________________________Bandas Law Firm, P.C., Corpus Christi, TX (Robert W. Clore, ofthe bar of the State of Texas, admitted pro hac vice, ofcounsel), for appellant.Lynch Rowin, LLP, New York (Thomas P. Lynch of counsel), forWorld Houseware Producing Co., Ltd., respondent.Russo & Toner, LLP, New York (Theresa Villani of counsel), forJosie Accessories, Inc., respondent.Marshall Dennehey Warner Coleman & Goggin, P.C., New York (AdamC. Calvert of counsel), for Dolgencorp of Texas, Inc.,respondent._________________________Order, Supreme Court, New York County (Anil C. Singh, J.),entered March 30, 2017, which, in this action for burn injuriesallegedly sustained when a potholder which plaintiff was usingcaught fire, granted defendants’ motions for summary judgmentdismissing the complaint, unanimously affirmed, without costs.Where the conclusion of an expert relies upon facts contraryto the plaintiff’s testimony, the affirmation will fail to raisean issue of fact sufficient to defeat summary judgment (seeFeaster-Lewis v Rotenberg, 93 AD3d 421, 422 [1st Dept 2012], lv40denied 19 NY3d 803 [2012]; Wengenroth v Formula Equip. Leasing,Inc., 11 AD3d 677, 679 [2d Dept 2004]). Here, the validity ofplaintiff’s experts’ opinions rely upon the assumption that thesubject potholder caught fire after contacting the heatingelement of plaintiff’s oven, a fact plaintiff specifically deniedseveral times during her deposition. Plaintiff was not equivocalat her deposition, nor did she seek to correct her testimony atany time thereafter.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK41Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7649 Harvardsky Prumyslovy Holding, Index 651826/12A.S. – V Likvidaci,Plaintiff-Respondent,-against-Viktor Kozeny,Defendant-Appellant,Landlocked Shipping Co.,Defendant._________________________Carey & Associates LLC, New York (Michael Q. Carey of counsel),for appellant.Saito Sorenson LLP, New York (Sigurd A. Sorenson of counsel), forrespondent._________________________Order, Supreme Court, New York County (Ellen M. Coin, J.),entered on or about February 3, 2017, which denied the motion ofdefendant Viktor Kozeny to dismiss the amended complaint pursuantto CPLR 3211(a)(1), (7), and (8), unanimously affirmed, withcosts.Assuming, arguendo, that Kozeny has raised a nonfrivolousground for denying recognition of the Czech judgment thatplaintiff seeks to enforce, “there must be either an in personamor an in rem jurisdictional basis for maintaining the recognitionand enforcement proceeding . . . in New York” (AlbaniaBEG AmbientSh.p.k. v Enel S.p.A., 160 AD3d 93, 94 [1st Dept 2018]).42However, Kozeny waived the defense of lack of personaljurisdiction because he is the alter ego of defendant LandlockedShipping Co. (see Harvardsky Prumyslovy Holding, AS. — VLikvidaci v Kozeny, 117 AD3d 77, 83 [1st Dept 2014]), andLandlocked previously moved to dismiss pursuant to CPLR3211(a)(1) and (7), not subdivision (8) (see CPLR 3211[e]; seealso New Media Holding Co. L.L.C. v Kagalovsky, 118 AD3d 68, 77[1st Dept 2014]).Even if Kozeny did not waive the defense of lack of personaljurisdiction, New York has in rem jurisdiction. Plaintiffalleges that Landlocked has approximately $22 million at a bankin New York, and Kozeny did not submit documentary evidenceutterly refuting this allegation. Furthermore, plaintiff seeksto enforce its Czech judgment against this $22 million (see e.g.AlbaniaBEG, 160 AD3d at 104 n 11 & 112; see also Deutsche Bank,AG v Vik, 142 AD3d 829, 829-830 [1st Dept 2016]).The court properly denied the branch of Kozeny’s motion thatwas based on CPLR 3211(a)(7). Kozeny contends that the Czechjudgment “was rendered under a system which does not provide. . . procedures compatible with . . . due process” (CPLR5304[a][1]) because the Czech court never had custody of him andhe was tried in absentia. However, because the statute refers to43a system which does not provide procedures compatible with dueprocess, “it cannot be relied upon to challenge the legalprocesses employed in a particular litigation on due processgrounds” (CIBC Mellon Trust Co. v Mora Hotel Corp., 296 AD2d 81,89 [1st Dept 2002], affd 100 NY2d 215 [2003], cert denied 540 US948 [2003]; see also Downs v Yuen, 298 AD2d 177, 178 [1st Dept2002]). The Czech legal system provides procedures compatiblewith due process (see Leser v Berridge, 668 F3d 1202, 1208 n 2[10th Cir 2011]).Having had notice and an opportunity to be heard, Kozeny was“afforded due process, even if the [foreign] procedures were notas generous as those of New York” (Standard Chartered Bank vAhmad Hamad Al Gosaibi & Bros. Co., 110 AD3d 578, 578 [1st Dept2013]). Plaintiff was not required to allege that the Czechcourt took Kozeny into its physical custody. It is sufficient ifa plaintiff alleges that the foreign “judgment was ‘conclusive’”(id. at 579), which plaintiff did.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK44Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7650- Ind. 855/057651-7652 The People of the State of New York,Respondent,-against-Antoine Gumbs,Defendant-Appellant._________________________Robert S. Dean, Center for Appellate Litigation, New York(Claudia Trupp of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohenof counsel), for respondent._________________________An appeal having been taken to this Court by the above-namedappellant from a judgment of the Supreme Court, New York County(Maxwell Wiley, J.), rendered August 4, 2016,Said appeal having been argued by counsel for the respectiveparties, due deliberation having been had thereon, and findingthe sentence not excessive,45It is unanimously ordered that the judgment so appealed frombe and the same is hereby affirmed.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERKCounsel for appellant is referred to§ 606.5, Rules of the AppellateDivision, First Department.46Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7653 In re Jaraira Del Carmen C.,Petitioner-Appellant,-against-Junior M.,Respondent-Respondent._________________________Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld ofcounsel), for appellant.Kenneth M. Tuccillo, Hastings on Hudson, for respondent.Karen P. Simmons, The Children’s Law Center, Brooklyn (Rachel J.Stanton of counsel), attorney for the child._________________________Order, Family Court, Bronx County (Diane Kiesel, J.),entered on or about February 8, 2017, which denied petitionermother’s application to relocate with the parties’ child toWaterbury, Connecticut, unanimously affirmed, without costs.The parties consented to a custody order, which providesthat the mother has legal and physical custody of their son inNew York, and the father has visitation the first three weekendsof the month and on alternate weeks during the summer. Thefather has been consistent in exercising his visitation rights.Denial of the mother’s motion to relocate, a motionconcededly motivated by her desire to bring the parties’ child tolive with her present boyfriend and soon to be born child, has a47sound and substantial basis in the record (see Matter of Tropea vTropea, 87 NY2d 727, 736 [1996]; see Yamilly M.S. v Ricardo A.S.,137 AD3d 459 [1st Dept 2016]). The father testified that themove would disrupt both the amount and quality of his time withhis son. The move would also put a strain on the child’srelationship with his extended family, with whom he lives. Inaddition, both grandmothers provide significant childcare whenthe child’s parents are unavailable.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK48Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7654 The People of the State of New York, Ind. 680N/16Respondent, 2106N/15-against-Rodolfo Abreu Cristomo,Defendant-Appellant._________________________Center for Appellate Litigation, New York (Robert S. Dean ofcounsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Michael J.Yetter of counsel), for respondent._________________________An appeal having been taken to this Court by the above-namedappellant from a judgment of the Supreme Court, New York County(Bonnie G. Wittner, J.), rendered April 29, 2016,Said appeal having been argued by counsel for the respectiveparties, due deliberation having been had thereon, and findingthe sentence not excessive,It is unanimously ordered that the judgment so appealed frombe and the same is hereby affirmed.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERKCounsel for appellant is referred to§ 606.5, Rules of the AppellateDivision, First Department.49Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7655- Index 150584/167656 In re Wimbledon Financing MasterFund, Ltd.,Petitioner-Respondent,-against-David Bergstein, et al.,Respondents-Appellants,Weston Capital Asset Management,LLC, et al.,Respondents._________________________Satterlee Stephens LLP, New York (Andrew L. Fish of counsel), forDavid Bergstein, Graybox, LLC and Iskra Enterprises LLC,appellants.Winget, Spadafora & Schwartzberg, LLP, New York (Garry T.Stevens, Jr. of counsel), for K Jam Media, Inc., appellant.The Law Offices of Nathaniel Z. Marmur, PLLC, New York (NathanielZ. Marmur of counsel), for Henry N. Jannol, appellant.Kaplan Rice LLP, New York (Joseph A. Matteo of counsel), forrespondent._________________________Judgment, Supreme Court, New York County (Shirley WernerKornreich, J.), entered July 21, 2017, to the extent appealedfrom, awarding petitioner sums of money as against respondentsDavid Bergstein, Graybox LLC, K. Jam Media, Inc. and Henry N.Jannol, unanimously affirmed, with costs. Appeal from order,same court and Justice, entered on or about July 18, 2017, whichgranted petitioner’s motions for summary judgment on its turnover50petition and to dismiss respondents’ cross petition for anaccounting, unanimously dismissed, without costs, as subsumed inthe appeal from the judgment.Petitioner, as assignee of a judgment entered in 2013against nonparty Arius Libra, Inc., brought this proceedingpursuant to CPLR article 52 for a turnover order to recoverassets that had been fraudulently conveyed away from Arius Libra(see Debtor and Creditor Law §§ 272, 273).Because the conveyances at issue were made to third partieswithout benefit to petitioner’s assignor, they were made withoutadequate consideration (Geltzer v D’Antona [In re CassandraGroup], 312 BR 491, 497 [Bankr SD NY 2004]). Moreover, becausethe conveyances were made to insiders of the debtor, they werepresumptively made in bad faith (Matter of CIT Group/CommercialServs., Inc. v 160-09 Jamaica Ave. Ltd. Partnership, 25 AD3d 301,303 [1st Dept 2006]). Respondents failed to meet their burden ofrebutting the presumption of the debtor’s insolvency arising fromthe lack of adequate consideration (see Battlefield Freedom Wash,LLC v Song Yan Zhuo, 148 AD3d 969, 971 [2d Dept 2017]). Thedebtor’s principal assets were concededly illiquid hedge fundinterests, not “saleable” assets, i.e., assets for which there51was an actual market (see McCarthy v Estate of McCarthy, 145 FSupp 3d 278, 286 [SD NY 2015]; Chase Natl. Bank v United StatesTrust Co., 236 App Div 500, 503 [1st Dept 1932], affd 262 NY 557[1933]).The motion court correctly determined that the conveyanceswere made with fraudulent intent (see Debtor and Creditor Law §276). Two of the principal actors pleaded guilty to criminalfraud in connection with these transactions. The third wasconvicted after the judgment on appeal was entered. In anyevent, more than enough “badges of fraud” exist to support thecourt’s determination (see Wall St. Assoc. v Brodsky, 257 AD2d526, 529 [1st Dept 1999]). These include “a close relationshipbetween the parties to the alleged fraudulent transaction, aquestionable transfer not in the usual course of business,inadequacy of the consideration, the transferor’s knowledge ofthe creditor’s claim and the inability to pay it, and retentionof control of the property by the transferor after theconveyance” (id.).Contrary to respondents’ contention, the judgment creditordid not ratify the transactions. While its own investmentadvisors were part of the fraudulent scheme, the advisorsdisbursed funds through the creditor’s own accounts, and the52creditor received no benefit (see Matter of New York State Med.Transporters Assn. v Perales, 77 NY2d 126, 131 [1990]). In anyevent, the malefactors could not ratify their own bad acts (seeKelly v Handy & Harman, 2010 WL 2305743, *13, 2010 US Dist LEXIS61567, *34 [SD NY 2010], affd 406 Fed Appx 538 [2d Cir 2011]).The motion court correctly found that, under Delaware law,Bergstein was the alter ego of the debtor (see Crosse v BCBSD,Inc., 836 A2d 492, 497 [Del 2003]). Bergstein’s sole argument isthat the other members of the scheme controlled the debtor.However, he was the initiator of the scheme and the creator andchairman of the debtor. Moreover, while other conspirators hadto approve the loan proceeds disbursements — more than 12borrowing requests and 27 transfers initiated by Bergstein — theother participants did exactly as he directed.We decline to remand for discovery as to any paymentsreceived by petitioner from the remaining assets of the debtor inits possession. Respondents can seek this information in thesupplementary discovery process, when and if their assets arefound.Respondent Jannol’s argument that the court does not havepersonal jurisdiction of him is barred by the doctrine of law of53the case, this Court having rejected it on a prior appeal (Matterof Brodsky v New York City Campaign Fin. Bd., 107 AD3d 544,545–546 [1st Dept 2013]; see Wimbledon Fin. Master Fund, Ltd. vBergstein, 147 AD3d 644 [1st Dept 2017]).The court correctly held Jannol personally liable althoughthe funds were transferred into his client escrow account.Jannol completely controlled the funds that went in and out ofthe account, and thus is personally liable for his own tortiousconduct, regardless of the fact that the account was in the nameof his professional corporation (see T&R Foods, Inc. v Rose, 47Cal App 4th Supp 1, 9 [Cal App 1996]).Jannol fails to raise a factual issue as to his defense thathe was merely a conduit of funds. Although no discoveryoccurred, the factual circumstances of his acceptance of thefunds, which he fails to provide in his affidavit in oppositionto the motion for summary judgment, are within his personalknowledge.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK54Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7659 The People of the State of New York, Ind. 4733/13Respondent,-against-Shondel Mason,Defendant-Appellant._________________________Robert S. Dean, Center for Appellate Litigation, New York (JohnVang of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (KarenSchlossberg of counsel), for respondent._________________________Judgment, Supreme Court, New York County (Laura A. Ward,J.), rendered August 9, 2016, convicting defendant, after a jurytrial, of two counts of robbery in the first degree and twocounts of criminal possession of a weapon in the fourth degree,and sentencing him, as a second violent felony offender, to anaggregate term of 18 years, unanimously affirmed.The testimony of an analyst from the Office of the ChiefMedical Examiner linking defendant’s DNA to a sample found on afirearm recovered from the crime scene did not violatedefendant’s right of confrontation. The analyst’s testimonyamply established that she used her own “independent analysis ofthe raw data” to make the comparison, and the analysis was not55merely “a conduit for the conclusions of others” (People v John,27 NY3d 294, 315 [2016]; People v Rodriguez, 153 AD3d 235, 246-247 [1st Dept 2017], affd on other grounds 31 NY3d 1067 [2018]).The testimony of the detective identifying defendant as oneof the men depicted in surveillance videos and photographsprovides no basis for reversal in light of the other evidence inthis case (see People v Boyd, 151 AD3d 641, 641 [1st Dept 2017],lv denied 29 NY3d 1124 [2017]).The court properly denied defendant’s request to precludeseveral recorded phone calls he made from jail prior to trial.“Defendant impliedly consented to the recording of the call(s)based on his receipt of multiple forms of notice that his callswould be recorded, and he was not entitled to separate noticethat the calls might be subpoenaed by prosecutors” (People vHolmes, 162 AD3d 585, 586 [1st Dept 2018]). Defendant abandonedhis request for a voluntariness charge as to the phone calls (seePeople v Graves, 85 NY2d 1024, 1027 [1995]), and we decline toreview it in the interest of justice.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK56Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7660 The People of the State of New York, Ind. 493/15Respondent,-against-Love Graham,Defendant-Appellant._________________________Justine M. Luongo, The Legal Aid Society, New York (Adrienne M.Gantt of counsel), for appellant._________________________Judgment, Supreme Court, New York County (Gregory Carro,J.), rendered November 19, 2015, unanimously affirmed.Application by defendant’s counsel to withdraw as counsel isgranted (see Anders v California, 386 US 738 [1967]; People vSaunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed thisrecord and agree with defendant’s assigned counsel that there areno non-frivolous points which could be raised on this appeal.Pursuant to Criminal Procedure Law § 460.20, defendant mayapply for leave to appeal to the Court of Appeals by makingapplication to the Chief Judge of that Court and by submittingsuch application to the Clerk of that Court or to a Justice ofthe Appellate Division of the Supreme Court of this Department onreasonable notice to the respondent within thirty (30) days afterservice of a copy of this order.57Denial of the application for permission to appeal by thejudge or justice first applied to is final and no new applicationmay thereafter be made to any other judge or justice.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK58Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7661 Rory Martin, et al., Index 158874/12Plaintiffs-Appellants,-against-The City of New York,Defendant-Respondent._________________________The Taub Law Firm, P.C., New York (Bruce E. Wingate of counsel),for appellants.Zachary W. Carter, Corporation Counsel, New York (Diana Lawlessof counsel), for respondent._________________________Order, Supreme Court, New York County (W. Franc Perry, J.),entered June 23, 2017, which granted defendant’s motion forsummary judgment dismissing the complaint, unanimously reversed,on the law, without costs, and the motion denied.Plaintiff Rory Martin was injured when, while playingsoftball on defendant’s field, he unsuccessfully attempted tojump over a hole that was in the field near home plate.Plaintiff testified at his 50-h hearing that a six-inch-deephole, three-to-four feet long, and four-to-five feet wide, nearthe right hand batter’s box, had been filled in with loose clayand appeared to be level when he stepped into the batter’s box.After plaintiff safely reached first base and additional playersused the batter’s box, the hole became more exposed and surprisedplaintiff as he ran home to try to score. When plaintiff saw thesize of the hole and attempted to jump over it, his left foot59struck a clay-obscured edge of the hole, causing him to suffer afractured ankle.Under the circumstances presented, triable issues exist asto whether the City had notice of this particular defect, and, ifso, whether the City negligently or improperly repaired thedefect, whether the playing field was as safe as it appeared tobe, whether plaintiff’s injury arose as a consequence of acondition or practice common to the particular sport, and whetherplaintiff assumed the risk of playing on the subject field (seeZelkowitz v Country Group, Inc., 142 AD3d 424, 427-428 [1st Dept2016]; Henig v Hofstra Univ., 160 AD2d 761 [2d Dept 1990]).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK60Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7662 The People of the State of New York, Ind. 5080/08Respondent,-against-Melvin Peters,Defendant-Appellant._________________________Richard M. Greenberg, Office of the Appellate Defender, New York(Lisa A. Packard of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Beth FischCohen of counsel), for respondent._________________________Judgment, Supreme Court, New York County (Patricia M. Nuñez,J. at hearing; Juan M. Merchan, J. at jury trial and sentencing),rendered June 7, 2011, convicting defendant of murder in thesecond degree (two counts), kidnapping in the first degree, gangassault in the first degree and robbery in the first, second andthird degrees, and sentencing him, as a second felony offender,to an aggregate term of 45 years to life, unanimously affirmed.The court properly denied defendant’s motion to suppress hisultimate statement to a detective. After defendant refused tospeak to two detectives or allow them to give Miranda warnings,these detectives engaged in the functional equivalent ofinterrogation by showing defendant a surveillance video,prompting a statement by defendant which, as the People concede,was properly suppressed. When a third detective, who was unawareof these events, entered the interview room, defendant61spontaneously announced that, although he refused to speak anyfurther to the first two detectives, he insisted on speaking tothe third. Shortly thereafter, outside the presence of the othertwo, the third detective administered Miranda warnings and took astatement. The record supports the court’s finding that thisstatement was attenuated from the suppressed statement (seePeople v White, 10 NY3d 286, 288 [2008], cert denied 555 US 897[2008]; People v Paulman, 5 NY3d 122, 130-131 [2005]). There wasa pronounced break between the statements, the second statementwas made to different interviewer, and “defendant haddemonstrated an unqualified desire to speak to the [third]detective” (People v Rodriguez, 55 AD3d 351, 352 [1st Dept 2008],lv denied 12 NY3d 762 [2009]).Defendant’s arguments concerning the sufficiency and weightof the evidence supporting his convictions of kidnapping and offelony murder (based on robbery and kidnapping) are unavailing(see People v Danielson, 9 NY3d 342, 348-349 [2007]). Theevidence established each of the charges, and refuted the defenseto felony murder set forth in Penal Law § 125.25(3). There is nobasis for disturbing the jury’s credibility determinations.Defendant’s principal argument is that the incident took place intwo phases, and that while he concededly took part in a robberyand gang assault in the first phase, he did not participate inthe second phase where the victim was shot and killed. However,62the evidence, including several surveillance videotapes and proofof the time when the shooting occurred, supports the conclusionthat defendant’s intentional participation in the crime continuedthroughout, and that he was accessorially liable for the conductof the other participants. We have considered and rejecteddefendant’s remaining claims concerning the sufficiency andweight of the evidence.The court providently exercised its discretion in permittingthe People to introduce evidence on rebuttal that, whileincarcerated pending trial, defendant assaulted a correctionofficer and made a threat that could be interpreted as anadmission of his guilt of the instant murder. Even though thecourt had originally precluded the People from introducing thisevidence on their direct case, after defendant testified itbecame clear that the probative value of this evidence exceededany prejudicial effect (see People v Massie, 2 NY3d 179, 183-185[2004]).Defendant’s absence from a portion of the discussion betweenthe court and the attorneys of a jury note requesting certainlegal instruction does not require reversal. The conferenceinvolved a purely legal matter about which defendant could nothave provided meaningful input (see People v Harris, 76 NY2d 810[1990]; People v Salley, 25 AD3d 473, 474-475 [1st Dept 2006], lvdenied 6 NY3d 838 [2006]).63Defendant did not preserve any of his claims regardingincidents involving prospective and sworn jurors, his challengesto the prosecutor’s summation, and his claim regarding sentencingprocedure, and we decline to review them in the interest ofjustice. As an alternative holding, we find no basis forreversal or resentencing.Defendant’s ineffective assistance of counsel claims areunreviewable on direct appeal because they involve matters notreflected in, or fully explained by, the record (see People vRivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998[1982]). Accordingly, since defendant has not made a CPL 440.10motion, the merits of the ineffectiveness claims may not beaddressed on appeal. In the alternative, to the extent theexisting record permits review, we find that defendant receivedeffective assistance under the state and federal standards (seePeople v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland vWashington, 466 US 668 [1984]).64The court lawfully imposed consecutive sentences forseparate acts (see Penal Law § 70.25[2]), and we perceive nobasis for reducing the sentence.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK65Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7663 The People of the State of New York, Ind. 263N/15Respondent,-against-Clarence Miller,Defendant-Appellant._________________________Seymour W. James, Jr., The Legal Aid Society, New York (EveKessler of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin ofcounsel), for respondent._________________________An appeal having been taken to this Court by the above-namedappellant from a judgment of the Supreme Court, New York County(James M. Burke, J.), rendered October 14, 2015,Said appeal having been argued by counsel for the respectiveparties, due deliberation having been had thereon, and findingthe sentence not excessive,It is unanimously ordered that the judgment so appealed frombe and the same is hereby affirmed.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERKCounsel for appellant is referred to§ 606.5, Rules of the AppellateDivision, First Department.66Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7664 The People of the State of New York, Ind. 2078/14Respondent,-against-William Grant,Defendant-Appellant._________________________Seymour W. James, Jr., The Legal Aid Society, New York (EveKessler of counsel), for appellant._________________________Judgment, Supreme Court, New York County (Juan Merchan, J.),rendered March 30, 2015, unanimously affirmed.Application by defendant’s counsel to withdraw as counsel isgranted (see Anders v California, 386 US 738 [1967]; People vSaunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed thisrecord and agree with defendant’s assigned counsel that there areno non-frivolous points which could be raised on this appeal.Pursuant to Criminal Procedure Law § 460.20, defendant mayapply for leave to appeal to the Court of Appeals by makingapplication to the Chief Judge of that Court and by submittingsuch application to the Clerk of that Court or to a Justice ofthe Appellate Division of the Supreme Court of this Department onreasonable notice to the respondent within thirty (30) days afterservice of a copy of this order.67Denial of the application for permission to appeal by thejudge or justice first applied to is final and no new applicationmay thereafter be made to any other judge or justice.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK68Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7665 The People of the State of New York, Ind. 1999/16Respondent,-against-Jareyid Alobeyah,Defendant-Appellant._________________________Justine M. Luongo, The Legal Aid Society, New York (Heidi Bota ofcounsel), for appellant._________________________Judgment, Supreme Court, New York County (Gregory Carro,J.), rendered July 27, 2016, unanimously affirmed.Application by defendant’s counsel to withdraw as counsel isgranted (see Anders v California, 386 US 738 [1967]; People vSaunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed thisrecord and agree with defendant’s assigned counsel that there areno non-frivolous points which could be raised on this appeal.Pursuant to Criminal Procedure Law § 460.20, defendant mayapply for leave to appeal to the Court of Appeals by makingapplication to the Chief Judge of that Court and by submittingsuch application to the Clerk of that Court or to a Justice ofthe Appellate Division of the Supreme Court of this Department onreasonable notice to the respondent within thirty (30) days afterservice of a copy of this order.69Denial of the application for permission to appeal by thejudge or justice first applied to is final and no new applicationmay thereafter be made to any other judge or justice.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK70Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7666N 106 Spring Street Owner LLC, Index 657050/17Plaintiff-Appellant,-against-Workspace, Inc., et al.,Defendants-Respondents._________________________Cole Schotz P.C., New York (Arianna Christopher Frankl ofcounsel), for appellant.Braverman Greenspun P.C., New York (Scott S. Greenspun ofcounsel), for respondents._________________________Order, Supreme Court, New York County (Eileen Bransten, J.),entered January 22, 2018, recalled and reissued by order enteredJanuary 26, 2018, which, to the extent appealed from as limitedby the parties stipulation withdrawing the appeal from that partof the order denying plaintiff’s motion for a preliminaryinjunction, denied plaintiff’s motion for a Yellowstoneinjunction, unanimously reversed, on the law and the facts,without costs, and the motion granted.Plaintiff met all four of the required elements for aYellowstone injunction, whose purpose is to toll the cure periodpending resolution of the dispute over whether a commercialtenant breached its lease (Graubard Mollen Horowitz Pomeranz &Shapiro v 600 Third Ave. Assoc., 93 NY2d 508, 514 [1999]), andits motion for a Yellowstone injunction should have been granted.The nature of the “standstill” ordered by the court in lieu71of a Yellowstone injunction may be, for all intents and purposes,equivalent to the requested relief, as defendants contend, but itis not clear, and plaintiff raises the reasonable concern that itomitted a key aspect of Yellowstone relief: tolling the time tocure (see Korova Milk Bar of White Plains, Inc. v PRE Props.,LLC, 70 AD3d 646, 647 [2d Dept 2010]); we resolve any ambiguityhere by granting the Yellowstone injunction.The court lacked adequate basis to assume, as it did, thatany failure on plaintiff’s part to maintain the cooling towermeant it had “jeopardized public health and safety in a mannerwhich is incurable.” Defendants’ October 2017 letter andDecember 2017 Notice of Default, demanding cure, belie the notionof incurability. The notices are, moreover, silent on the issueof public health and safety, as were defendants’ affidavitsopposing the motion. The issue, raised only in their memorandumof law was, in any case, unsubstantiated. The record before uscontains no evidence to support the claim, or the court’sconclusion that the violations at issue are incurable.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK72Renwick, J.P., Richter, Tom, Kern, Oing, JJ.7667 In re Gilberto Diaz, Ind. 453/11[M-3402] Petitioner, OP 154/18-against-Patricia J. Bailey, et al.,Respondents._________________________Gilberto Diaz, petitioner pro se.Cyrus R. Vance, Jr., District Attorney, New York (Stephen J.Kress of counsel), for respondents._________________________The above-named petitioner having presented an applicationto this Court praying for an order, pursuant to article 78 of theCivil Practice Law and Rules,Now, upon reading and filing the papers in said proceeding,and due deliberation having been had thereon,It is unanimously ordered that the application be and thesame hereby is denied and the petition dismissed, without costsor disbursements.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK73Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7668 The People of the State of New York, Ind. 2164/15Respondent,-against-Isaac Dixon,Defendant-Appellant._________________________Center for Appellate Litigation, New York (Robert S. Dean ofcounsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Brent Fergusonof counsel), for respondent._________________________An appeal having been taken to this Court by the above-namedappellant from a judgment of the Supreme Court, New York County(Abraham Clott, J.), rendered June 15, 2017,Said appeal having been argued by counsel for the respectiveparties, due deliberation having been had thereon, and findingthe sentence not excessive,It is unanimously ordered that the judgment so appealed frombe and the same is hereby affirmed.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERKCounsel for appellant is referred to§ 606.5, Rules of the AppellateDivision, First Department.74Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7669 4525 & 4555 Apartments Corp., Index 156473/14Plaintiff-Appellant,-against-Dina Goldemberg, et al.,Defendants-Respondents._________________________The Law Office of Steven G. Fauth, LLC, New York (Suzanne M. Saiaof counsel), for appellant.Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola (JenniferPrusiecki of counsel), for respondents._________________________Order, Supreme Court, New York County (James E. d’Auguste,J.), entered on or about April 4, 2018, which, in this action forproperty damage, inter alia, denied plaintiff’s cross motion forsummary judgment to the extent of limiting its damages to thosedirectly caused by the contractor hired by defendants DinaGoldemberg and Isaac Goldemberg, unanimously affirmed, withcosts.Defendants do not dispute that they are required toindemnify plaintiff for the damage their contractor directlycaused by drilling into the building’s gas line. However,plaintiff’s claim that the need to bring the gas line into codecompliance was caused by the accident and requiresindemnification by defendants is unavailing. The proposal letterfrom the plumber plaintiff hired to have the building’s gasservice restored after the accident states that the gas line75would not pass the pressure test because most of the gas valveswere original to the building that was constructed in 1953, andthe risers needed to be equipped with lockable gas valves. Therecord shows that the problem with the gas line resulted from theage of the valves, which were plaintiff’s responsibility tomaintain and repair under the proprietary lease because they arepart of the building’s standard equipment. That defendants mayhave furnished the occasion for plaintiff to have to demonstratethat the building’s gas distribution system was code compliantbefore service could be restored does not mean that defendantsbecame responsible for the costs plaintiff incurred in achievingcode compliance when such an obligation was not clearly impliedunder the proprietary lease (see Hooper Assoc. v AGS Computers,74 NY2d 487, 491-492 [1989]).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK76Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7671 Dilsia Rodriguez, Index 160829/16Plaintiff–Respondent,-against-Architron EnvironmentalServices, Inc.,Defendant–AppellantMcGowan Builders, Inc.,Defendant._________________________Edward B. Safran, New York, for appellant.Law Office of Craig Rosuck, P.C., New York (Craig Rosuck ofcounsel), for respondent._________________________Order, Supreme Court, New York County (Arlene P. Bluth, J.),entered February 8, 2018, which denied the motion by defendantArchitron Environmental Services, Inc. for summary judgmentdismissing the action as against it, unanimously affirmed,without costs.The summary judgment motion was premature and the motioncourt properly denied it on that basis. No discovery had beenconducted before Architron moved for summary judgment; thus,plaintiff was not given a chance to depose two parties —defendants in a related action that has now been consolidatedwith this one — who might have knowledge concerning the relevantissues in this action (see Gonzalez v Vincent James Mgt. Co.,Inc., 306 AD2d 226 [1st Dept 2003]; La v New YorkInfirmary/Beekman Downtown Hosp., 214 AD2d 425 [1st Dept 1995]).77Moreover, even if the documents that Architron submitted onits motion had sufficed to make a prima facie showing that it hadcompleted its work at the site before plaintiff’s allegedaccident, plaintiff nonetheless had an acceptable excuse for notoffering any countervailing facts to oppose the motion — namely,the lack of any opportunity to conduct discovery (see Gonzalez,306 AD2d at 226).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK78Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7672- Ind. 999/127673 The People of the State of New York,Appellant,-against-Sunil Brown,Defendant-Respondent.- – - – -The People of the State of New York, Ind. 1531/12Appellant,-against-Robert Salkey,Defendant-Respondent._________________________Darcel D. Clark, District Attorney, Bronx (Robert McIver ofcounsel), for appellant.Justine M. Luongo, The Legal Aid Society, New York (Jose DavidRodriguez-Gonzalez of counsel), for Sunil Brown, respondent.Kevin D. McLoone, Yonkers, for Robert Salkey, respondent._________________________Order, Supreme Court, Bronx County (John W. Carter, J.),entered January 23, 2017, which granted defendant Sunil Brown’smotion to suppress physical evidence and defendant RobertSalkey’s motion to suppress a lineup identification, unanimouslyaffirmed.The hearing court’s decision rests primarily on its factualdeterminations, which are accorded great deference and aresupported by the record (see People v Prochilo, 41 NY2d 759, 761[1977]). The court appropriately considered the main policewitness’s very limited recollection of the events. The court79also determined that the timing of certain events was reliablyestablished by the witness’s testimony on cross-examination,rather than the version contained in his direct examination.According to the court’s findings of fact, at the time ofthe gunpoint seizure of the two defendants, the police had ananonymous tip that an undescribed suspect or suspects hadburglarized an unspecified apartment on the sixth floor of abuilding, they spoke to building residents who reported noise onthat floor, and they saw defendants leaving an apartment on thatfloor carrying undescribed bags. The totality of thisinformation failed to provide reasonable suspicion to support animmediate forcible seizure without any inquiry. The policelearned additional information, but only after the unlawfulseizure.Therefore, the court properly suppressed all physicalevidence as fruit of the illegality. Furthermore, the court alsogranted suppression, independently of the initial illegality,because the witness’s recollection about the subsequent search ofthe contents of the bags, and about the recovery of gloves fromthe hallway floor, was so limited that the People did not meettheir initial burden of coming forward with credible evidence toestablish either a search of the bags incident to a lawful arrestor the abandonment of the gloves (see generally People v Berrios,28 NY2d 361, 367 [1971).80The record also supports the court's determination tosuppress an officer's lineup identification of Salkey, who hadfled the scene, as the unattenuated fruit of the unlawful stopand frisk (see e.g. People v Simpson, 174 AD2d 348, 351 [1st Dept1991]). The vague testimony provided no explanation of howSalkey came to be placed in a lineup, and no basis for findingattenuation from the initial illegality.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK81Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7674 West 70th Owners Corp., et al., Index 156272/15Plaintiffs-Respondents,-against-Hiram Cohen & Son, Inc., et al.,Defendants-Appellants._________________________Keidel, Weldon & Cunningham, LLP, White Plains (Darren P. Rennerof counsel), for appellants.Jaroslawicz & Jaros PLLC, New York (David Tolchin of counsel),for respondents._________________________Order, Supreme Court, New York County (Andrea Masley, J.),entered on or about January 30, 2018, which, to the extentappealed from as limited by the briefs, denied defendants’ motionfor summary judgment dismissing the complaint as against HiramCohen & Son, Inc., unanimously affirmed, without costs.In opposition to defendants’ prima facie showing that HiramCohen & Son, Inc. (HCS) was not negligent or in breach of acontract in connection with its procurement of an insurancepolicy, plaintiffs demonstrated the existence of issues of fact,namely, whether they made a specific request for particularinsurance coverage, and whether they had a special relationshipwith HCS that would have obligated HCS to make certain that theywere properly insured. HCS’s claims that plaintiff failed totimely read and understand the policy only go to comparativenegligence, but do not bar the action altogether (see American82Bldg. Supply Corp. v Petrocelli Group, Inc., 19 NY3d 730 [2012]).Additionally, this issue is factually disputed (id.).We have considered defendants’ remaining contentions andfind them unavailing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK83Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7675 The People of the State of New York, Ind. 2325/15Respondent,-against-Luis Diaz,Defendant-Appellant._________________________Arnold & Porter Kaye Scholer, New York (Ian Jay of counsel), andRobert S. Dean, Center for Appellate Litigation, New York (JanHoth of counsel), for appellant.Luis Diaz, appellant pro se.Cyrus R. Vance, Jr., District Attorney, New York (Noreen M.Stackhouse of counsel), for respondent._________________________Judgment, Supreme Court, New York County (A. Kirke Bartley,Jr., J.), rendered March 7, 2016, as amended April 27, 2016,convicting defendant, after a jury trial, of robbery in thesecond degree, and sentencing him to a term of five years,unanimously affirmed.The verdict was not against the weight of the evidence (seePeople v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury’s credibility determinations,84including its rejection of defendant’s attempt to explain hisconfession of guilt.We perceive no basis for reducing the sentence.We have considered and rejected defendant’s pro se claims.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK85Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7676 Robert Malta, et al., Index 653647/15Plaintiffs-Appellants,-against-Salvatore Gaudio, et al.,Defendants-Respondents._________________________Catafago Fini, LLP, New York (Jacques Catafago of counsel), forappellants.Robinson Brog Leinwand Greene Genovese & Gluck P.C., New York(William A. Rome of counsel), for Salvatore Gaudio and A&L 444LLC, respondents.D’Agostino, Levine, Landesman & Lederman, LLP, New York (Bruce H.Lederman of counsel), for 444 Park Avenue South Associates LLC,David Moinian and Moin Development Corp., respondents._________________________Order, Supreme Court, New York County (Anil C. Singh, J.),entered August 26, 2016, which, insofar as appealed from aslimited by the briefs, granted defendants’ motions to dismiss thefirst, second, fourth, fifth, and seventh causes of action,unanimously affirmed, with costs.Plaintiff Robert Malta and defendant Salvatore Gaudio areformer business partners who owned companies for the purpose ofinvesting in real estate in Manhattan. The first, second, andfourth causes of action (for breach of contract and a declaratoryjudgment) stem from Malta’s and Gaudio’s attempt to allocatebetween themselves the properties owned through one of thesecompanies, and particularly from Gaudio’s failure to disclosethat one such property, located at 1420 Second Avenue, was86subject to a commercial lease.The breach of contract and declaratory judgment causes ofaction were correctly dismissed because it is clear from theplain text of the relevant agreement that the lease did notconstitute an “Encumbrance” that was required to be disclosed(see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]). Indeed,no other leases were disclosed as “Encumbrances.” Contrary toplaintiffs’ contention, the “Mortgage, Assignment of Leases andRents, and Security Agreement” listed on Schedule 1 of theagreement is not a lease but a form of mortgage (see 1180Anderson Ave. Realty Corp. v Mina Equities Corp., 95 AD2d 169,172-174 [1st Dept 1983]; Poughkeepsie Sav. Bank v Sloane Mfg.Co., 84 AD2d 212, 214-18 [2d Dept 1981]).The fifth and seventh causes of action (for breach offiduciary duty and aiding and abetting breach of fiduciary duty)stem from the sale of plaintiffs’ interests in property locatedat 444 Park Avenue, and particularly from defendants’ allegedfailure to disclose and/or misrepresentations regarding anopportunity to develop that property as a hotel.The breach of fiduciary duty cause of action was correctlydismissed because it is barred by the release provision in thesettlement agreement executed by the parties several months afterthe sale. This release is very broad, applying to all claimsagainst Gaudio, “whether known or unknown,” and not excepting87claims arising out of the 444 Park sale. Malta, a sophisticatedprincipal represented by independent counsel, admitted in aseparate action that he “no longer trusted Gaudio” at least onemonth before the sale’s closing, and thus was able to and didrelease Gaudio from claims based on fiduciary duty (see Pappas vTzolis, 20 NY3d 228, 232 [2012]).The dismissal of the breach of fiduciary duty cause ofaction is dispositive of the aiding and abetting breach offiduciary duty cause of action (see Kaufman v Cohen, 307 AD2d113, 125 [1st Dept 2003]).We decline to award sanctions against plaintiffs.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK88Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7677 In re Juliette S.,Petitioner-Appellant,-against-Tykym S.,Respondent-Respondent._________________________Curtis, Mallet-Prevost, Colt & Mosle LLP, New York (Elena Rizzoof counsel), for appellant.Andrew J. Baer, New York, for respondent._________________________Order, Family Court, New York County (Adam Silvera, J.),entered on or about September 26, 2017, which grantedrespondent’s application to dismiss the petition to modify anorder of custody and visitation, unanimously reversed, on thelaw, without costs, and the matter remanded to the Family Courtfor a hearing consistent with this decision.Where a parent seeks to modify a formal custody agreementshe has executed, she must show that there has been sufficientchange in circumstances since the execution of the agreement, andthat modification is in the best interests of the child (Matterof Sergei P. v Sofia M., 44 AD3d 490 [1st Dept 2007]). The courtentertaining such a petition need not hold a hearing wherepetitioner has failed to make a showing of changed circumstancessufficient to warrant one (Matter of Ronald S. v Dierdre R., 62AD3d 593, 594 [1st Dept 2009]). Even if the requisite primafacie showing of changed circumstances is made, the court need89not hold a hearing where it possesses sufficient information tomake a comprehensive and independent review of the child’s bestinterests (Matter of Mohamed Z.G. v Mairead P.M., 129 AD3d 516,517 [1st Dept 2015]).Here, the parties executed a custody and visitationagreement on April 25, 2017. The mother filed a petition tomodify it on June 29, 2017. The Family Court improperlydismissed the mother’s petition without a hearing.The Family Court’s order dated September 26, 2017 dismissedboth the mother’s modification petition and the father’senforcement petition “due to withdrawal.” Although the fatherwithdrew his enforcement petition on the record on September 20,2017, the Family Court’s written order gives no other reason fordismissal of the mother’s modification petition.At the parties’ first and only appearance on the petitionson September 20, 2017, the father presented to the court and themother’s attorney for the first time a copy of a letter from theNew York State Office of Children and Family Services Child Abuseand Maltreatment Register to the father dated July 20, 2017stating that the local child protective services office haddetermined that a report made against him on June 12, 2017 was“unfounded.” The court then made clear that it was dismissingthe mother’s petition solely on the basis of that letter. Thiswas not a sufficient basis upon which to dismiss the mother’s90petition for three reasons.First, the Family Court improperly denied the mother anopportunity to respond to the “unfounded” letter, which washearsay. Moreover, although the father apparently had it in hispossession for approximately two months, he did not provide it toher until the September 20 court appearance.Second, in her petition, the mother alleged changedcircumstances based in part on a school social worker’s havingadvised her on June 12, 2017 that the social worker had made achild abuse report stating that the mother’s 11-year-old son (thefather’s stepson) had reported that the father had assaulted himduring a visit.1 While that report may have been the subject ofthe “unfounded” letter, the mother’s petition was also based onstatements made to her by the parties’ child and the older childon nine occasions between May 23 and June 16, 2017 that thefather interrogated them about what they said to their therapistand pressured them to say they wanted to live with him; that theywere afraid of the father and no longer wished to visit with him;and that they feared that the father would shoot the childrenwith his gun. Accordingly, even if the “unsubstantiated” letterreferred to the report made by the older child’s school social1The custody agreement provided that the older child couldaccompany the parties’ son on visits, but did not conditionvisitation between the father and the parties’ child on the olderchild’s presence.91worker, that letter did not disprove the mother’s uncontrovertedassertion that, both before and after that report was made, thechildren had expressed fear of and a desire not to visit with thefather. Indeed, if, as the father’s attorney alleged, theattorney for the parties’ child during the custody litigation hadadvocated for the child’s preference to reside primarily with hisfather, this was a marked change in the child’s attitude sincethe custody agreement. This was sufficient to require a hearingto determine the basis for the parties’ son’s expressed fear ofhis father, and whether modification of the father’s parentingtime was in the child’s best interests.Finally, to the extent that Family Court was making adetermination that the parties’ child’s fear of his father wasunfounded based on the “unsubstantiated” letter, and thatmodification was therefore not in the child’s best interests,this was error. Since this was the parties’ first appearancebefore this judge, the court did not have sufficient informationabout the parties and their child to make a comprehensive and92independent determination about the child’s best interests(Mohamed Z.G., 129 AD3d at 517).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK93Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7678- Ind. 5817/127678A The People of the State of New York, 1372/14Respondent,-against-Emanuel Marks,Defendant-Appellant._________________________Robert S. Dean, Center for Appellate Litigation, New York(Brittany N. Francis of counsel), for appellant.Emanuel Marks, appellant pro se.Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser ofcounsel), for respondent._________________________Judgments, Supreme Court, New York County (Marcy L. Kahn,J.), rendered December 3, 2015, convicting defendant, upon hispleas of guilty, of identity theft in the second degree andcriminal possession of stolen property in the fourth degree, andsentencing him, as a second felony offender, to concurrent termsof two to four years, unanimously affirmed.The court providently exercised its discretion in denyingdefendant’s motion to withdraw his guilty plea. “When adefendant moves to withdraw a guilty plea, the nature and extentof the fact-finding inquiry rest largely in the discretion of theJudge to whom the motion is made and a hearing will be grantedonly in rare instances” (People v Brown, 14 NY3d 113, 116 [2010][internal quotation marks omitted]). The plea minutesdemonstrate that defendant voluntarily, knowingly, and94intelligently pleaded guilty in exchange for a favorable sentence(see People v Fiumefreddo, 82 NY2d 536, 543 [1993]). The courthad sufficient information to determine that defendant’s claimthat his prior counsel’s alleged ineffectiveness caused him toinvoluntarily plead guilty was without merit and did not warranta hearing.Defendant’s excessive sentence argument is moot because hehas completed his entire sentence.We have considered and rejected defendant’s pro se claims.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK95Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7679 Kevin Glodek, Index 156177/16Plaintiff-Appellant-Respondent,-against-Kadmon Holdings, LLC, et al.,Defendants-Respondents-Appellants._________________________Golenbock Eiseman Assor Bell & Peskoe, LLP, New York (Martin S.Siegel of counsel), for appellant-respondent.McKool Smith, P.C., New York (Christopher P. Johnson of counsel),for respondents-appellants._________________________Order, Supreme Court, New York County (Anil C. Singh, J.),entered April 18, 2017, which, to the extent appealed from,granted defendants’ motion to dismiss the complaint and denieddefendants’ and plaintiff’s applications for sanctions,unanimously affirmed, with costs.Plaintiff’s claims are precluded under the terms of thebroad general release of known and unknown claims in the parties’settlement agreement (Centro Empresarial Cempresa S.A. v AméricaMóvil, S.A.B. de C.V., 17 NY3d 269, 276-277 [2011]), andplaintiff has not sufficiently alleged that he was fraudulentlyinduced to enter into that agreement. In fact, plaintiff assumedthe risk of the exact reverse stock split that now forms thebasis of his fraud claim, as this particular risk wasspecifically disclosed in Kadmon Holdings’ limited liabilityagreement, which plaintiff admitted reviewing before entering96into the settlement agreement (id. at 278; Pappas v Tzolis, 20NY3d 228, 233 [2012]).The unjust enrichment claim was also correctly dismissedbecause the settlement agreement governs the parties’ rights andresponsibilities (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70NY2d 382, 388 [1987]).The motion court did not abuse its discretion in denyingdefendants’ motion for sanctions.We have considered plaintiff’s remaining arguments and findthem unavailing.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK97Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7680 DLJ Mortgage Capital, Index 36033/15EPlaintiff-Appellant,-against-Hardayal Mahadeo also known asHardy Mahadeo,Defendant-Respondent,Harryam Mahadeo also known asHarry Mahadeo, et al.,Defendants._________________________Peter T. Roach & Associates, P.C., Syosset (Michael C. Mannielloof counsel), for appellant.Hardy Mahadeo, respondent pro se._________________________Order, Supreme Court, Bronx County (Fernando Tapia, J.),entered December 18, 2017, which denied plaintiff’s motion for adefault judgment and to appoint a referee to compute the amountdue and owing to plaintiff, and granted defendant/borrower,Hardayal Mahadeo a/k/a Hardy Mahadeo’s cross motion to dismissthe complaint pursuant to, inter alia, CPLR 3211(a)(1), (2) and(7), with prejudice, unanimously modified, on the law, to denydefendant’s cross motion, and otherwise affirmed, without costs.The court should not have found that plaintiff failed toestablish its standing by submission of documentary evidenceproving the chain of ownership of the note at issue. Sincedefendant was moving for dismissal of the complaint, the burdenwas on him to make a prima facie demonstration that plaintiff98lacked standing. In order to defeat the motion, plaintiff didnot need to affirmatively establish its standing, but only toraise a triable issue of fact as to its standing (Deutsche BankNatl. Trust Co. Ams. v Vitellas, 131 AD3d 52, 59-60 [2d Dept2015]). Defendant did make a prima facie showing of lack ofstanding by calling into question the validity of the note inplaintiff’s possession, as it is not the same as the note in twoprior actions commenced by a different plaintiff, bothvoluntarily discontinued, purportedly seeking to foreclose on thesame note.Nevertheless, plaintiff has raised issues of fact as to itsstanding. “[T]o have standing, it is not necessary to havepossession of the mortgage at the time the action iscommenced . . . . [T]he note, and not the mortgage, is thedispositive instrument that conveys standing to foreclose underNew York law” (Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361[2015]). Plaintiff raised a question of fact as to itspossession of the note prior to commencement of the actionthrough the affidavit of Anthony D’Addona, who averred that hereviewed the books and records of plaintiff, kept in the ordinarycourse of business, and that plaintiff was the holder of the noteand mortgage. This affidavit was sworn to on September 28, 2015,prior to commencement of this action. “It is well settled that abusiness entity may admit a business record through a person99without personal knowledge of the document, its history or itsspecific contents where that person is sufficiently familiar withthe corporate records to aver that the record is what it purportsto be and that it came out of the entity’s files” (DeLeon v PortAuth. of N.Y. & N.J., 306 AD2d 146, 146 [1st Dept 2003]). Theissue of standing cannot be determined on the record before thisCourt based on the apparently conflicting notes, raising issuesof fact as to whether plaintiff is the lawful holder of thesubject note. Thus, the matter is remanded for furtherproceedings (see US Bank N.A. v Faruque, 120 AD3d 575, 578 [2dDept 2014]).The court should not have dismissed the complaint based onprior actions pending, pursuant to CPLR 3211(a)(4). First, noparty sought such relief, and defendant never argued this issue.Moreover, the prior actions were no longer “pending” and theparties were not “the same” (id.).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK100Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7681 The People of the State of New York, Ind. 3379/11Respondent,-against-Andre Paul,Defendant-Appellant._________________________Christina A. Swarns, Office of the Appellate Defender, New York(Lauren Stephens-Davidowitz of counsel), for appellant._________________________Judgment, Supreme Court, New York County (Charles H.Solomon, J.), rendered March 6, 2012, unanimously affirmed.Application by defendant’s counsel to withdraw as counsel isgranted (see Anders v California, 386 US 738 [1967]; People vSaunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed thisrecord and agree with defendant’s assigned counsel that there areno non-frivolous points which could be raised on this appeal.Pursuant to Criminal Procedure Law § 460.20, defendant mayapply for leave to appeal to the Court of Appeals by makingapplication to the Chief Judge of that Court and by submittingsuch application to the Clerk of that Court or to a Justice ofthe Appellate Division of the Supreme Court of this Department onreasonable notice to the respondent within thirty (30) days afterservice of a copy of this order.101Denial of the application for permission to appeal by thejudge or justice first applied to is final and no new applicationmay thereafter be made to any other judge or justice.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK102Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7682 People of the State of New York, Ind. 1879/10Respondent,-against-Darrell Joe,Defendant-Appellant._________________________Seymour W. James, Jr., The Legal Aid Society, New York (SheilahFernandez of counsel), for appellant.Darrell Joe, appellant pro se.Darcel D. Clark, District Attorney, Bronx (Robert McIver ofcounsel), for respondent._________________________Judgment, Supreme Court, Bronx County (Steven L. Barrett,J.), rendered September 22, 2014, convicting defendant, upon hisplea of guilty, of conspiracy in the second degree, andsentencing him, as a second felony offender, to a term of 7 to 14years, unanimously affirmed.The court providently exercised its discretion in denyingdefendant’s motion to withdraw his plea, and in declining toappoint new counsel. “[T]he nature and extent of thefact-finding procedures on such motions rest largely in thediscretion of the court” (People v Fiumefreddo, 82 NY2d 536, 544[1993]). Here, the parties’ written submissions, the pleaminutes and the court’s recollection of the plea negotiationswere sufficient to determine the motion. The allegedly coerciveconduct by defense counsel amounted to nothing more than frank103advice about the consequences of going to trial (see e.g. Peoplev Fulton, 125 AD3d 511 [1st Dept 2015], lv denied 25 NY3d 1072[2015]).By correcting a factual misstatement by his client, counseldid not take an adverse position on the motion (see People vMitchell, 21 NY3d 964, 967 [2013]). When defendant asserted thathis counsel was the law partner of another attorney potentiallyinvolved in the case and was thereby conflicted, counselexplained that the partnership had ended years before defendant’scase arose. Counsel’s explanation, even if inartfully stated,fell far short of taking an adverse position.Defendant’s pro se ineffective assistance of counsel claimsare unreviewable on direct appeal because they involve mattersoutside the record. Accordingly, since defendant has not made aCPL 440.10 motion, the merits of the ineffectiveness claims maynot be addressed on appeal. In the alternative, to the extentthe existing record permits review, we find that defendant104received effective assistance under the state and federalstandards (see People v Benevento, 91 NY2d 708, 713-714 [1998];Strickland v Washington, 466 US 668 [1984]).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK105Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7683 The People of the State of New York, Ind. 2358/14Respondent,-against-Miguel Moza also known asMiguel Nozo Tepo,Defendant-Appellant._________________________Robert S. Dean, Center for Appellate Litigation, New York (MarkW. Zeno of counsel), for appellant._________________________Judgment, Supreme Court, Bronx County (William Mogulescu,J.), rendered December 19, 2014, unanimously affirmed.Application by defendant’s counsel to withdraw as counsel isgranted (see Anders v California, 386 US 738 [1967]; People vSaunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed thisrecord and agree with defendant’s assigned counsel that there areno non-frivolous points which could be raised on this appeal.Pursuant to Criminal Procedure Law § 460.20, defendant mayapply for leave to appeal to the Court of Appeals by makingapplication to the Chief Judge of that Court and by submittingsuch application to the Clerk of that Court or to a Justice ofthe Appellate Division of the Supreme Court of this Department onreasonable notice to the respondent within thirty (30) days afterservice of a copy of this order.106Denial of the application for permission to appeal by thejudge or justice first applied to is final and no new applicationmay thereafter be made to any other judge or justice.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK107Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7684 Split Rail Holdings LLC, Index 652417/16Plaintiff-Respondent,-against-176 Grand St. Corp.,Defendant-Appellant._________________________Blank Rome LLP, New York (Samuel D. Levy of counsel), forappellant.Herrick Feinstein LLP, New York (Avery S. Mehlman of counsel),for respondent._________________________Order, Supreme Court, New York County (Saliann Scarpulla,J.), entered January 23, 2018, which granted plaintiff Split RailHoldings LLC’s (Split Rail) motion for summary judgment forspecific performance, dismissed Split Rail’s cause of action forbreach of contract as moot, denied 176 Grand’s cross motion forsummary judgment on its ninth affirmative defense and its firstand second counterclaims, and dismissed the counterclaims,unanimously affirmed, with costs.Construing the lease according to its plain meaning, andharmonizing the contractual provisions (Natixis Real EstateCapital Trust 2007-HE2 v Natixis Real Estate Holdings, LLC, 149AD3d 127, 133 [1st Dept 2017]), Article 43.A of the lease, titled“Option to Purchase Fee Ownership of the Landlord,” whichspecifically stated that “the Tenant shall have the option toacquire Landlord’s fee interest in the Demised Premises” created108an option to purchase the subject property. Nor was the leasevoid under the statute of frauds, as the lease was signed by thecorporate president, pursuant to the executed consent of allshareholders (see General Obligations Law § 5-703).The purchase price was calculated based on ten times theannual rent during the year Split Rail exercised the purchaseoption, i.e., “Year 15 times ten,” equating to a purchase priceof $6,355,477.40, as Article 2(a) lists base rent as rent peryear. As with any contract, a lease should also be construed ina commercially reasonable manner (see E-Z Eating 41 Corp. v H.E.Newport L.L.C., 84 AD3d 401, 409 [1st Dept 2011]). It would notmake economic sense for 176 Grand to delay its opportunity tocompel the purchase of the subject property beyond year six, asprovided in Article 43.B of the lease, since it would be entitledto a better price at that time. A single provision should notrender the lease ambiguous, when other provisions of the leasesupport a conclusion that the purchase price is based on annualrent (see Eighth Ave. Coach Corp. v City of New York, 286 NY 84,88-89 (1941)].Contrary to 176 Grand’s contention, specific performance is109available on the sale of commercial property (see Bright StoneCorp. v J&J Assoc. II, LLC, 161 AD3d 628, 628-629 [1st Dept2018]) and was appropriate here where, as the trial court noted,Split Rail lost “a bargained-for contractual right to exercise anoption to purchase the Property” (see Matter of Lamberti vAngiolillo, 73 AD3d 463, 464 [1st Dept 2010], lv denied 15 NY3d711 [2010]). For these reasons, the grant of summary judgment infavor of plaintiff, and the denial of summary judgment as todefendant’s ninth affirmative defense and counterclaims wascorrect.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK110Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7685 In re Abass D., and Others,Children under the Age ofEighteen Years, etc.,New York City Administration forChildren’s Services,Petitioner-Appellant,Mamadou D., et al.,Respondents-Respondents,Sitan D.,Respondent._________________________Zachary W. Carter, Corporation Counsel, New York (Susan Paulsonof counsel), for appellant.Michele Cortese, Center for Family Representation, Inc., New York(Claibourne Henry of counsel), for Mamadou D., respondent.Neighborhood Defender Service of Harlem, New York (JessicaBrierly-Snowden of counsel), for Karidja D., respondent.Karen Freedman, Lawyers for Children, Inc., New York (ShirimNothenberg of counsel), attorney for the children._________________________Order, Family Court, New York County (Patria Frias-Colon,J.), entered on or about May 11, 2018, which expandedrespondents’ visitation with the subject children to unsupervisedday visits on the condition that no other adults are presentunless cleared by petitioner, unanimously reversed, on the law,without costs, and the order vacated.Petitioner’s appellate arguments were adequately preserved.Family Court’s determination that respondents should have111unsupervised visitation with the children lacks a sound andsubstantial basis in the record, which, to the contrary, showsthat unsupervised visitation is not in the children’s bestinterests (see Family Court Act § 1030[c]; Matter of Daniel O.[Jaquan O.], 141 AD3d 434 [1st Dept 2016]). Respondents continueto refuse to admit or even to acknowledge the possibility thatthe children, all of whom tested positive for sexuallytransmitted diseases (STD), were sexually abused. Even asrecently as May 2018, and although they ostensibly hadparticipated in various services and counseling, the parentscontinued to offer implausible explanations for the children’smedical condition. This failure, coupled with the father’sargument that his negative STD test results exonerate him fromany culpability for the children’s condition, compels theconclusion that the parents will not acknowledge their role inthe children’s contracting STDs and thus that they continue topose a risk to the children (see Matter of Joseph P. [Cindy H.],112 AD3d 553 [1st Dept 2013]). While the father may have beenout of the country, as he asserts, when his daughter Djenebatested positive, there is no evidence in the record of the dateon which she, or any of her siblings, contracted the STD. Nor isit possible on this record to determine whether the father wastreated for STDs before testing negative.In November 2017, Family Court (Ta-Tanisha James, J.) denied112the parents’ application pursuant to Family Court Act § 1028 tohave the children returned to their care. Since then there hasbeen no change in the circumstances upon which the denial of thatapplication was based. The court (Frias-Colon, J.) issued theinstant order without benefit of a full fact-finding hearing,apparently to avoid delay and stagnation in the proceeding. Thisjustification is inadequate. The permanency reports andtreatment updates before the court reiterated the parents’ongoing inability to acknowledge that their children had beensexually abused and did not advocate unsupervised visitation. Inview of the gravity of the allegations and the parents’ attitudetoward, and role in, the events at issue, we find that the courtabused its discretion in ordering unsupervised visitation on therecord before it.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK113Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7686 The People of the State of New York, Ind. 501/14Respondent,-against-Bobby Johnson,Defendant-Appellant._________________________Robert S. Dean, Center for Appellate Litigation, New York (JodyRatner of counsel), for appellant.Darcel D. Clark, District Attorney, Bronx (Shera Knight ofcounsel), for respondent._________________________An appeal having been taken to this Court by the above-namedappellant from a judgment of the Supreme Court, Bronx County(Robert E. Torres, J.), rendered June 16, 2015,Said appeal having been argued by counsel for the respectiveparties, due deliberation having been had thereon, and findingthe sentence not excessive,It is unanimously ordered that the judgment so appealed frombe and the same is hereby affirmed.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERKCounsel for appellant is referred to§ 606.5, Rules of the AppellateDivision, First Department.114Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7687 In re John A. Healy, et al., Index 160850/17Petitioners-Appellants,-against-The Carriage House Condominium,et al.,Respondents-Respondents._________________________Healy LLC, New York (Valeria Calafiore Healy of counsel), forappellants.Braverman Greenspun P.C., New York (Maria Boboris of counsel),for respondents._________________________Order and judgment (one paper), Supreme Court, New YorkCounty (Shlomo S. Hagler, J.), entered May 29, 2018, whichgranted the petition brought pursuant to CPLR article 78 todirect respondents to produce certain of the condominium’s booksand records, enjoin them from paying certain subpoena-relatedlegal expenses, and direct them to recoup any such expendituresalready made, only to the extent of directing respondents toproduce documents described in items (a)-(f) of the petition,unanimously modified, on the law and the facts, to directrespondents to produce the documents sought in items (g), (h),(i), and (j), and otherwise affirmed, without costs.As a threshold matter, petitioners’ contention that theBoard was not validly elected, and therefore had no jurisdictionto act on behalf of the Condominium, is unpreserved (see Recovery115Consultants v Shih-Hsieh, 141 AD2d 272, 276 [1st Dept 1988]).Respondents expressly do not object to producing thedocuments requested in items (h) and (i) in the petition. Thus,the disputed items are (g) and (j).In item (j), petitioners seek “all correspondence with . . .NY Urban [or its principal] from 2011 to the present.” This bodyof correspondence is relevant and necessary to petitioners’investigation into NY Urban’s dealings with respondents, andtherefore is a proper subject of the common-law right ofinspection (see Pomerance v McGrath, 143 AD3d 443, 444 [1st Dept2016]; Matter of Tatko v Tatko Bros. Slate Co., 173 AD2d 917, 919[3d Dept 1991]).In item (g), petitioners seek “[a]ll documents and recordsrelating to the Condominium’s settlement agreement with theCondominium sponsor.” We agree with petitioners thatunderstanding how the Condominium reached the settlementagreement is a valid purpose. Indeed, respondents concede thatpetitioners are entitled to receive a copy of the finalsettlement agreement itself. The documents specified in item (g)following the word “including” are also reasonably relevant andnecessary to the stated purpose of exploring the settlementprocess. We reject respondents’ conclusory assertion that someunknown number of documents are protected by the attorney-clientprivilege or work product doctrine.116In paying the subpoenaed parties’ legal expenses,respondents were acting within the scope of their authority andin furtherance of the legitimate purpose of resisting litigationdisclosure of Condominium documents, and there is no evidencethat they were acting in bad faith (see 40 W. 67th St. v Pullman,100 NY2d 147, 155 [2003]). The Condominium’s bylaws empoweredthe Board to pay subpoena-related legal expenses on behalf ofcertain past and present Board members, and the Condominium wascontractually obligated to pay such expenses for its managingagent. The fact that one of the past Board members may have beenunqualified to serve (because he was not a unit owner) does notnegate the Board’s authority to pay his legal expenses, as thereis no evidence that his service on the Board was the product ofbad faith, rather than oversight. Petitioners’ argument based onthe conflict of interest inherent in the fact that the subpoenaedparties who were on the Board at the time voted to pay for theirown legal fees is unpreserved.THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK117Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.7688N Angelena Lucheux, Index 160641/13Plaintiff-Appellant,Benjamin Lucheux,Plaintiff,-against-William Macklowe Company LLC,et al.,Defendants,Elite Terrazzo Flooring, Inc.,Defendant-Respondent._________________________Peter H. Paretsky, Attorney at Law, PLLC, New York, (Peter H.Paretsky of counsel), for appellant.Correia, King, Fodera, McGinnis & Liferiedge, New York (Jose M.Gomez of counsel), for respondent._________________________Order, Supreme Court, New York County (Nancy M. Bannon, J.),entered May 16, 2017, which, to the extent appealed from, deniedplaintiff’s motion for sanctions against defendant Elite TerrazzoFlooring, Inc. (Elite), unanimously affirmed, without costs.In this slip and fall action, defendant Elite cross-movedfor summary judgment on the ground that other defendants, whocleaned up the lobby floor after Elite’s workers left, were anintervening cause that broke the causal connection betweenElite’s work on the lobby floor and the dusty condition on whichplaintiff later slipped. Elite refused plaintiff’s request thatit withdraw the motion as frivolous. The motion court118providently exercised its discretion in determining that Elite’scross motion, however unpersuasive on the merits, was notfrivolous, and did not warrant the imposition of sanctions (seeHunts Point Term. Produce Coop. Assn, Inc. v New York CityEconomic. Dev. Corp., 54 AD3d 296, 296 [1st Dept 2008]; VenomCorp. v 155 Wooster St. Inc., 33 AD3d 67, 70 [1st Dept 2006]; 22NYCRR 130-1.1[c]).THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.ENTERED: NOVEMBER 20, 2018_______________________DEPUTY CLERK119