By Austin, J.P.; Leventhal, Cohen, Barros and Christopher, JJ. PEOPLE, etc., res, v. Erik D. Ferguson, ap — (Ind. No. 295/10) Janet E. Sabel, New York, NY (Eve Kessler of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent. Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Leonard P. Rienzi, J., at plea; Wayne M. Ozzi, J., at sentence), rendered September 2, 2015, convicting him of assault in the second degree, upon his plea of guilty, and sentencing him to a period of probation of three years. The appeal brings up for review an order of protection issued at the time of sentencing. ORDERED that upon the appeal from the judgment, the order of protection issued at the time of sentencing is vacated, as a matter of discretion in the interest of justice; and it is further, ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Richmond County, for further proceedings in accordance herewith. On September 9, 2011, the defendant pleaded guilty to assault in the second degree, a class D violent felony (see Penal Law §§70.02[1][c]; 120.05[3]). On September 2, 2015, after the defendant successfully completed a residential mental health treatment program over the course of two years and served more than three months in jail, the Supreme Court sentenced the defendant to a three-year term of probation and issued an order of protection in favor of an individual who was neither a victim of nor a witness to the crime to which the defendant pleaded guilty. Penal Law §60.05(5) mandates that a person convicted of the class D violent felony offense of assault in the second degree be sentenced to a term of imprisonment (see Penal Law §70.02[1][c]; People v. Lirio, 54 AD2d 732, 732). Such a sentence could consist of a determinate term of imprisonment of at least two years and no more than seven years (see Penal Law §70.02[2][b]; [3][c]), or alternatively, a definite term of imprisonment of one year or less under Penal Law §70.00(4) or an intermittent term of imprisonment under Penal Law §85.00 (see Penal Law §60.05[5]; People v. Endresz, 1 AD3d 888, 889; People v. Housman, 291 AD2d 665, 666). Moreover, a split sentence of imprisonment and probation is also authorized (see Penal Law §60.01[2][d]). Consequently, as the defendant argues and the People concede, the defendant’s sentence of a term of probation only with respect to his conviction of assault in the second degree was illegal, and the sentence must be vacated and the matter remitted to the Supreme Court, Richmond County for resentencing or to allow the defendant to withdraw his plea of guilty (see People v. Cameron, 83 NY2d 838, 840; People v. Senat, 165 AD3d 705, 706). The defendant, a first time felony offender, requests that his sentence be equivalent to the amount of time that he has already served in connection with this conviction. Such a sentence would be a legal sentence if the sentencing court, in considering the circumstances of the crime and the defendant’s character, deems such a sentence to be proper (see Penal Law §70.00[4]). Further, as the defendant argues and the People concede, the Supreme Court had no authority to issue an order of protection in favor of an individual who was neither a victim of nor a witness to the crime to which the defendant pleaded guilty (see CPL 530.13[4]; People v. Hanniford, 174 AD3d 921, 922). Consequently, we vacate the order of protection issued at the time of sentencing. In light of our determination, the defendant’s remaining contention is academic. Accordingly, we vacate the sentence imposed, vacate the order of protection issued at the time of sentencing, and remit the matter to the Supreme Court, Richmond County, for resentencing or to allow the defendant to withdraw his plea of guilty (see People v. Cameron, 83 NY2d at 840). AUSTIN, J.P., LEVENTHAL, COHEN, BARROS and CHRISTOPHER, JJ., concur.
By Dillon, J.P.; Chambers, Miller and Duffy, JJ. Iftikar Ahmad, ap, v. New York City Department of Education res — (Matter No. 1) MATTER of Iftikar Ahmad, ap, v. City of New York res — (Matter No. 2) (Index Nos. 10177/15, 707089/16) Omrani & Taub, New York, NY (James L. Forde of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, NY (Mathew Ross, Lauren M. Zink, and I. Elie Herman of counsel), for respondents. In an action to recover damages for personal injuries, and a related proceeding pursuant to General Municipal Law §50-e(5), the plaintiff/petitioner appeals from (1) an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated August 30, 2016, and (2) an order of the same court dated October 18, 2016. The order dated August 30, 2016, granted that branch of the motion of the defendants in the action and the respondents in the proceeding which was pursuant to CLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action on the ground that the plaintiff/petitioner failed to serve a timely notice of claim. The order dated October 18, 2016, denied the plaintiff/petitioner’s motion, in effect, for leave to reargue the court’s prior determination not to sign an order to show cause seeking to renew his petition for leave to serve a late notice of claim. Cross motion by the defendants/respondents to dismiss the appeal from the order dated October 18, 2016, on the ground that no appeal lies from an order denying a motion for leave to reargue. By decision and order on motion of this Court dated September 12, 2017, the cross motion was held in abeyance and referred to the Justices hearing the appeals for determination upon the argument or submission thereof. Upon the papers filed in support of the cross motion and the papers filed in opposition thereto, and upon the submission of the appeals, it is ORDERED that the cross motion is granted; and it is further, ORDERED that the appeal from the order dated October 18, 2016, is dismissed, as no appeal lies from an order denying reargument (see Jannetti v. Whelan, 165 AD3d 1082, 1084); and it is further, ORDERED that the order dated August 30, 2016, is affirmed; and it is further, ORDERED that one bill of costs is awarded to the defendants/respondents. According to the plaintiff/petitioner (hereinafter the plaintiff), he was an employee of Kel Tech Construction in 2015 and was working on elevated pipe scaffolding in a New York City school gymnasium when one of the scaffolding planks broke and he fell down to the floor and onto his lower back, sustaining injuries to his back and upper and lower extremities. His employer prepared an accident report dated May 13, 2015. On August 25, 2015, the plaintiff filed a petition seeking leave to serve a late notice of claim on the City of New York, the New York City Department of Education (hereinafter the DOE), and the New York School Construction Authority (hereinafter the Construction Authority). By order dated November 10, 2015, the Supreme Court denied the plaintiff’s petition for leave to serve a late notice of claim, and a judgment dismissing the petition was entered on April 4, 2016. The plaintiff did not appeal from that judgment. Thereafter, the plaintiff moved by order to show cause for leave to renew his petition for leave to serve a late notice of claim. On or about June 16, 2016, the plaintiff commenced this action against the City, the DOE, and the Construction Authority. The defendants moved pursuant to CLR 3211(a)(7) to dismiss the complaint, inter alia, on the ground that the notice of claim was not timely pursuant to General Municipal Law §50-e(5). The plaintiff opposed the defendants’ motion to dismiss, arguing, inter alia, that his pending order to show cause for leave to renew his petition for leave to serve a late notice of claim and any subsequent appeals arising therefrom warranted a stay of the action. On June 28, 2016, the Supreme Court declined to sign the order to show cause, finding that the plaintiff failed to demonstrate a basis to renew or reargue the petition. He subsequently moved for leave to “vacate/reargue” the court’s refusal to sign his order to show cause. By order dated August 30, 2016, the Supreme Court granted that branch of the defendants’ motion which was pursuant to CLR 3211(a)(7) to dismiss the complaint. By order dated October 18, 2016, the court, characterizing the plaintiff’s motion for leave to “vacate/reargue” as one for leave to reargue the court’s prior determination refusing to sign the order to show cause, denied the motion. The plaintiff appeals. “In general, ‘[t]he service of a notice of claim is a condition precedent to the maintenance of an action against a public corporation to recover damages for a tortious or wrongful act’” (Matter of Fotopoulos v. Board of Fire Commrs. of the Hicksville Fire Dist., 161 AD3d 733, 734, quoting Matter of Rattner v. Planning Commn. of Vil. of Pleasantville, 156 AD2d 521, 525; see General Municipal Law §50-e). It is undisputed that the plaintiff failed to timely serve a notice of claim and that the plaintiff did not succeed in obtaining leave to serve a late notice of claim. Accordingly, we agree with the Supreme Court’s determination granting that branch of the defendants’ motion which was pursuant to CLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action (see Kafka Constr., Inc. v. New York City Sch. Constr. Auth., 125 AD3d 933, 934-935). DILLON, J.P., CHAMBERS, MILLER and DUFFY, JJ., concur.
