Appellate Division Second Department: June 3, 2020

By Scheinkman, P.J.; Duffy, Barros, Wooten, JJ. IN THE MATTER OF GIORA NEEMAN, ET AL., app, v. TOWN OF WARWICK, ET AL., res (Index No. 7409/17) Zarin & Steinmetz, White Plains, NY (Michael D. Zarin and Jody T. Cross of counsel), for appellants. Blustein, Shapiro, Rich & Barone, LLP, Goshen, NY (Jay R. Myrow of counsel), for respondents Town of Warwick, Town of Warwick Planning Board, and Town of Warwick Town Board. The Kleister Law Group, Washingtonville, NY (Christopher B. Kleister of counsel), for respondents Black Bear Family Campground, Inc., Rita Zelda Smith, and Rita P. Smith Living Trust. In a hybrid proceeding pursuant to CPLR article 78 to review determinations of the respondent/defendant Town of Warwick Planning Board dated August 16, 2017, and September 20, 2017, adopting a negative declaration under the State Environmental Quality Review Act and granting the application of the respondent/defendant Black Bear Family Campground, Inc., for site plan approval and a special use permit, and action, inter alia, for a judgment declaring that a development agreement entered into between the respondents/defendants Town of Warwick Town Board and Black Bear Family Campground, Inc., is null and void, the petitioners/plaintiffs appeal from a judgment of the Supreme Court, Orange County (Elaine Slobod, J.), dated May 1, 2018. The judgment denied the amended petition and, in effect, dismissed the proceeding/action. ORDERED that the judgment is reversed, on the law, with one bill of costs, the amended petition is granted, the determinations dated August 16, 2017, and September 20, 2017, are annulled, and the matter is remitted to the Supreme Court, Orange County, for the entry of an appropriate amended judgment, inter alia, declaring that the development agreement entered into between the respondents/defendants Town of Warwick Town Board and Black Bear Family Campground, Inc., is null and void. The petitioners/plaintiffs own a parcel of land located in the Rural Zoning District of the Town of Warwick. The property is adjacent to and shares an approximately 1,888-foot boundary with property on which the respondent/defendant Black Bear Family Campground, Inc. (hereinafter BBFC), operates a campground. In 1965, the Town of Warwick Planning Board (hereinafter the Planning Board) approved a site plan permitting the operation of 74 campsites on the BBFC property, and in 1980, the Planning Board approved the construction of certain improvements on the property. Over the years, without seeking any variances, permits, or approvals from the Town, BBFC expanded the campground from the approved 74 campsites to 154 campsites and constructed accessory structures and buildings. In 2008, the Town issued numerous violations against BBFC for its illegal operations and instituted civil proceedings against BBFC. Subsequently, because the zoning code required, inter alia, that campgrounds maintain a setback of 100 feet from any property line and opaque screening of the campground, BBFC submitted an application to the Planning Board for site plan approval and a special use permit for the expanded campground to permit locating campsites, which included recreational vehicle pads, and other structures and buildings within the 100-foot setback in violation of the zoning code. BBFC also sought from the Town of Warwick Zoning Board of Appeals (hereinafter the ZBA) an interpretation of the zoning code that zoning amendments enacted in 2015, setting an 120-day limit on the time that campers could stay at the campground, did not apply to the original 74 campsites that had been approved, since at that time there was no time limit. In settlement of the civil proceedings instituted by the Town against BBFC, the Town of Warwick Town Board (hereinafter the Town Board) entered into a “Development Agreement” with BBFC whereby, inter alia, the Town Board agreed that it would amend the zoning code’s time limit to stay at the campground from 120 days to 210 days and would not modify the bulk requirements so as to affect density restrictions for campgrounds in the zoning code prior to the approval of BBFC’s application for site plan approval. Further, as per the development agreement, BBFC sought from the ZBA and ultimately obtained an area variance to alleviate its violation of the 100-foot setback requirement in the zoning code. In conjunction with BBFC’s application for site plan approval and a special use permit, an Environmental Assessment Form (hereinafter EAF) was completed, which concluded that the construction and expansion of the campground would result in no significant adverse impacts on the environment. Based upon the findings in the EAF and public hearings held on the matter, the Planning Board adopted a negative declaration under the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA) and granted BBFC’s application for site plan approval and a special use permit. The petitioners/plaintiffs commenced this hybrid proceeding pursuant to CPLR article 78 to annul the Planning Board’s adoption of the negative declaration, approval of the site plan, and issuance of a special use permit, and action, inter alia, for a judgment declaring that the development agreement is null and void because it constituted illegal contract zoning. The Supreme Court denied the amended petition and, in effect, dismissed the proceeding/action. The petitioners/plaintiffs appeal. The petitioners/plaintiffs argue that the Planning Board failed to comply with SEQRA in adopting the negative declaration. We agree. In reviewing a negative declaration, a court may not substitute its own judgment for that of the lead agency by weighing the desirability of particular actions or by choosing among possible alternatives (see Akpan v. Koch, 75 NY2d 561; Matter of Incorporated Vil. of Poquott v. Cahill, 11 AD3d 536). Instead, judicial review is strictly limited to whether the lead agency identified the relevant areas of environmental concern, took a “hard look” at them, and made a “reasoned elaboration” of the basis of its determination (Matter of New York City Coalition to End Lead Poisoning v. Vallone, 100 NY2d 337, 348 [internal quotation marks omitted]). SEQRA guarantees that agency decision-makers “will identify and focus attention on any environmental impact of proposed action, that they will balance those consequences against other relevant social and economic considerations, minimize adverse environmental effects to the maximum extent practicable, and then articulate the bases for their choices” (Matter of Jackson v. New York State Urban Dev. Corp., 67 NY2d 400, 414-415). As the lead agency, the Planning Board was authorized to seek out the advice and assistance of other agencies, but the final determination remained with the lead agency principally responsible for approving the site plan (see Matter of Oyster Bay Assoc. Ltd. Partnership v. Town Bd. of Oyster Bay, 58 AD3d 855). “The fact that other agencies may have had an independent obligation to analyze the potential impacts of the [campground] had no bearing on [the Planning Board's] own obligation to analyze the listed areas of environmental concern” (Matter of Golten Mar. Co. v. New York State Dept. of Envtl. Conservation, 193 AD2d 742, 743). The Planning Board failed to adequately assess and consider the potential environmental impacts of the construction and expansion of the campground from 74 campsites to 154 campsites, and adopted the negative declaration based largely upon its finding that the campground had been operating 154 campsitesalbeit illegallyfor many years. Under the circumstances, the Planning Board’s adoption of the negative declaration was arbitrary and capricious. Moreover, the development agreement entered into between the Town Board and BBFC constituted illegal contract zoning. “[N]o municipal government has the power to make contracts that control or limit it in the exercise of its legislative powers and duties” (Collard v. Incorporated Vil. of Flower Hill, 52 NY2d 594, 601). The test is whether the development agreement committed the Town to a specific course of action with respect to a zoning amendment (see Matter of Save Harrison, Inc. v. Town/Village of Harrison, NY, 168 AD3d 949). The Town Board agreed to amend the zoning code to permit 210-day occupancy limit, a change from the current 120-day occupancy limit, in exchange for BBFC’s agreement that the 210-day occupancy limit would apply to all of the campsites, including the original 74 approved campsites. This was an agreement binding on BBFC to give a form of consideration in exchange for legislative action and to limit the Town Board’s authority to change the bulk requirements in the zoning code until such time as BBFC would not be negatively affected by such change (cf. Matter of DePaolo v. Town of Ithaca, 258 AD2d 68; Matter of Tuxedo Land Trust, Inc. v. Town of Tuxedo, 34 Misc 3d 1235[A], 2012 NY Slip Op 50377[U] [Sup Ct, Orange County], affd 112 AD3d 726). In light of the foregoing, we need not address the parties’ remaining contentions. Accordingly, the Planning Board’s determinations dated August 16, 2017, and September 20, 2017, should be annulled, and the matter is remitted to the Supreme Court, Orange County, for the entry of an appropriate amended judgment, inter alia, declaring that the development agreement entered into between the Town Board and BBFC is null and void. SCHEINKMAN, P.J., DUFFY, BARROS and WOOTEN, JJ., concur. By Scheinkman, P.J.; Duffy, Barros, Wooten, JJ. IN THE MATTER OF GIORA NEEMAN, ET AL., app, v. TOWN OF WARWICK, ET AL., res (Index No. 7757/17) Zarin & Steinmetz, White Plains, NY (Michael D. Zarin and Jody T. Cross of counsel), for appellants. Blustein, Shapiro, Rich & Barone, LLP, Goshen, NY (Jay R. Myrow of counsel), for respondents Town of Warwick, Town of Warwick Zoning Board of Appeals, and Town of Warwick Town Board. The Kleister Law Group, Washingtonville, NY (Christopher B. Kleister of counsel), for respondents Black Bear Family Campground, Inc., Rita Zelda Smith, and Rita P. Smith Living Trust. In a hybrid proceeding pursuant to CPLR article 78 to review determinations of the respondent/defendant Town of Warwick Zoning Board of Appeals dated March 27, 2017, and August 28, 2017, granting the application of the respondent/defendant Black Bear Family Campground, Inc., for an area variance, and action, inter alia, for a judgment declaring that the respondent/defendant Town of Warwick Zoning Board of Appeals segmented its environmental review in violation of 6 NYCRR 617.3(g), the petitioners/plaintiffs appeal from a judgment of the Supreme Court, Orange County (Elaine Slobod, J.), dated February 22, 2018. The judgment denied the petition and, in effect, dismissed the proceeding/action. ORDERED that the judgment is reversed, on the law, with one bill of costs, the petition is granted, the determinations dated March 27, 2017, and August 28, 2017, are annulled, and the matter is remitted to the Supreme Court, Orange County, for the entry of an appropriate amended judgment, inter alia, declaring that the respondent/defendant Town of Warwick Zoning Board of Appeals segmented its environmental review in violation of 6 NYCRR 617.3(g). The background facts as to this hybrid proceeding and action and a related hybrid proceeding and action commenced by the petitioners/plaintiffs are set forth in this Court’s decision and order on a related appeal (see Matter of Neeman v. Town of Warwick, ___ AD3d ___ [Appellate Division Docket No. 2018-05755; decided herewith]). The petitioners/plaintiffs commenced this hybrid proceeding pursuant to CPLR article 78 to annul determinations of the respondent/defendant Town of Warwick Zoning Board of Appeals (hereinafter the ZBA) granting the application of the respondent/defendant Black Bear Family Campground, Inc. (hereinafter BBFC), for an area variance, and action, inter alia, for a judgment declaring that the ZBA segmented its environmental review in violation of 6 NYCRR 617.3(g). The Supreme Court denied the petition and, in effect, dismissed the proceeding/action. The petitioners/plaintiffs appeal. Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Switzgable v. Board of Zoning Appeals of the Town of Brookhaven, 78 AD3d 842). In determining an application for an area variance, a zoning board must engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the area variance is granted (see Matter of Sasso v. Osgood, 86 NY2d 374, 384). A zoning board must consider (1) whether granting the variance would result in an undesirable change in the character of the neighborhood, or a detriment to neighboring properties, (2) whether the benefit sought can be achieved by some method other than an area variance, (3) whether the requested variance is substantial, (4) whether granting the variance will have an adverse impact upon the physical or environmental conditions in the neighborhood, and (5) whether the alleged difficulty is self-created (see Town Law 267-b[3][b]). Here, the determination of the ZBA granting the application of BBFC for the area variance was arbitrary and capricious and an abuse of discretion. The prior placement of illegal or nonconforming campsites and structures within a 100-foot setback adjacent to the petitioners/plaintiffs’ property cannot support the issuance of an area variance (see Matter of Switzgable v. Board of Zoning Appeals of the Town of Brookhaven, 78 AD3d 842). The ZBA discounted the petitioners/plaintiffs’ evidence that granting the variance would have an adverse impact on their property. Furthermore, the benefit sought by BBFC could have also been achieved by some method other than the grant of the requested area variance. In addition, BBFC failed to present any evidence of the cost of moving campsites and failed to offer any engineering data showing that the open spaces at the campground were too steep to serve as viable campsites. There also existed the possibility that BBFC could have leased or purchased additional land on the adjoining property owned by the petitioners/plaintiffs (see Matter of Chandler Prop., Inc. v. Trotta, 9 AD3d 408). In any event, BBFC would not have been denied the ability to make productive use of its property (see Matter of Ifrah v. Utschig, 98 NY2d 304). Moreover, the requested area variance from the 100-foot setback requirement was substantial. Importantly, no studies, analyses, or tests were performed showing that the addition of campsites for recreational vehicles with utility hookups within the 100-foot setback would have no adverse effect on the environmental condition of the neighborhood. Additionally, the alleged difficulty was entirely self-created. Under the circumstances of this case, the ZBA should have given more weight to the factor of self-created hardship since BBFC illegally expanded the campsites in disregard of the applicable zoning requirements (see Matter of Switzgable v. Board of Zoning Appeals of the Town of Brookhaven, 78 AD3d 842). Finally, the failure to review the area variance request in the context of the overall campsite expansion project constituted an improper segmented review (see Matter of Teich v. Buchheit, 221 AD2d 452). Accordingly, the determinations of the ZBA to grant the area variance should be annulled, and the matter is remitted to the Supreme Court, Orange County, for the entry of an appropriate amended judgment, inter alia, declaring that the ZBA segmented its environmental review in violation of 6 NYCRR 617.3(g). SCHEINKMAN, P.J., DUFFY, BARROS and WOOTEN, JJ., concur. By Balkin, J.P.; Austin, Lasalle, Iannacci, JJ. MILLARD C. JAYNE, app, v. LETTY CHANDRA SMITH, ETC., ET AL., res (Index No. 604101/15) Cartier, Bernstein, Auerbach & Steinberg, P.C., Patchogue, NY (Kenneth Auerbach and Robert Steinberg of counsel), for appellant. Kaufman, Borgeest & Ryan LLP, Garden City, NY (Eldar Mayouhas and Jacqueline Mandell of counsel), for respondents. In a consolidated action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Paul J. Baisely, Jr., J.), dated August 8, 2018. The order, insofar as appealed from, denied those branches of the plaintiff’s motion which were pursuant to CPLR 3124 to compel the defendants Letty Chandra Smith, Daniel Robert Klages, and Douglas Kent Hoverkamp to appear for depositions and to answer questions seeking nonprivileged information regarding their nonparty patient and granted that branch of the defendants’ cross motion which was pursuant to CPLR 3103(a) for a protective order precluding such questioning of the defendants Letty Chandra Smith, Daniel Robert Klages, and Douglas Kent Hoverkamp. ORDERED that on the Court’s own motion, the notice of appeal from so much of the order as denied that branch of the plaintiff’s motion which was pursuant to CPLR 3124 to compel the defendants Letty Chandra Smith, Daniel Robert Klages, and Douglas Kent Hoverkamp to answer questions seeking nonprivileged information regarding their nonparty patient and granted that branch of the defendants’ cross motion which was pursuant to CPLR 3103(a) for a protective order precluding such questioning of the defendants Letty Chandra Smith, Daniel Robert Klages, and Douglas Kent Hoverkamp is deemed to be an application for leave to appeal from those portions of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further, ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, those branches of the plaintiff’s motion which were pursuant to CPLR 3124 to compel the defendants Letty Chandra Smith, Daniel Robert Klages, and Douglas Kent Hoverkamp to appear for depositions and to answer questions seeking nonprivileged information regarding their nonparty patient is granted, and that branch of the defendants’ cross motion which was pursuant to CPLR 3103(a) for a protective order precluding such questioning of the defendants Letty Chandra Smith, Daniel Robert Klages, and Douglas Kent Hoverkamp is denied. The plaintiff, a nurse, was seriously injured when he was assaulted by a patient at a psychiatric facility in Suffolk County. The plaintiff thereafter commenced this consolidated action to recover damages for personal injuries against, among others, the defendants Letty Chandra Smith, Daniel Robert Klages, and Douglas Kent Hoverkamp (hereinafter collectively the individual defendants), who were the patient’s treating psychiatrists. After the individual defendants indicated at a compliance conference that they would not answer any questions at their depositions regarding the patient, the plaintiff moved, inter alia, pursuant to CPLR 3124 to compel them to appear for depositions and to answer questions seeking nonprivileged information regarding the patient. The defendants cross-moved, inter alia, pursuant to CPLR 3103(a) for a protective order precluding such questioning. The Supreme Court, inter alia, denied those branches of the plaintiff’s motion and granted that branch of the defendants’ cross motion. The plaintiff appeals. Generally, “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, bya party” (CPLR 3101[a][1]). However, even relevant discovery is subject to preclusion if the requested information is privileged (see CPLR 3101[b]; Dillenbeck v. Hess, 73 NY2d 278, 287; see also 22 NYCRR 221.2[a]). Information relating to the nature of medical treatment and the diagnoses made, including “information communicated by the patient while the physician attends the patient in a professional capacity, as well as information obtained from observation of the patient’s appearance and symptoms,” is privileged and may not be disclosed (Mullen v. Wishner, 172 AD3d 1386, 1388; see CPLR 4504; Mental Hygiene Law 33.13[c][1]; Bellamy v. State of New York, 136 AD3d 1247). However, “[t]he physician-patient privilege generally does not extend to information obtained outside the realms of medical diagnosis and treatment” (Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530). Thus, the privilege is generally limited to “information acquired by the medical professional ‘through application of professional skill or knowledge’” (id. at 530, quoting Dillenbeck v. Hess, 73 NY2d at 284 n 4). Here, the patient has not waived the physician-patient privilege (see Mullen v. Wishner, 172 AD3d at 1389), and the plaintiff has not demonstrated “that the interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law 33.13[c][1]). Thus, the plaintiff was not entitled to any privileged information regarding the patient, such as information regarding the treatment rendered to him by the individual defendants or information they collected in their professional capacity so as to render a diagnosis or treatment plan. Nevertheless, the plaintiff is entitled to inquire into any nonprivileged information regarding the patient (see Mullen v. Wishner, 172 AD3d at 1389; Bellamy v. State of New York, 136 AD3d at 1248; J.Z. v. South Oaks Hosp., 67 AD3d 645, 646; Sohan v. Long Is. Coll. Hosp., 282 AD2d 597; Lee v. New York City Tr. Auth., 257 AD2d 611). Thus, it was an improvident exercise of discretion to deny those branches of the plaintiff’s motion which were to compel the individual defendants’ depositions on the limited basis sought by the plaintiff, and to grant the defendants a protective order preventing the plaintiff from questioning the individual defendants regarding any nonprivileged information about the patient. We note that the particular content of the information sought by the plaintiff is not before us, since the plaintiff and the defendants made their motions before the individual defendants’ depositions were conducted. Thus, we do not determine on this appeal whether any specific information about the patient was or was not privileged. We further note that the prospect that a witness may be asked questions at a deposition as to which an objection based on privilege may be asserted is not a proper reason for declining to appear for a deposition. Rather, the proper procedure is for the witness to appear and for counsel to interpose objections to particular questions which call for the disclosure of privileged information (see 22 NYCRR 221.2). Here, the defendants should not have predetermined that there were no relevant nonprivileged questions that could be asked of the individual defendants. BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur. By Rivera, J.P.; Maltese, Connolly, Nelson, JJ. US BANK NATIONAL ASSOCIATION, ETC., app, v. JOHN JULIANO, ETC., ET AL., def, PETER DINICOLA, ETC., ET AL., res (Index No. 7598/11) McCalla Raymer Leibert Pierce, LLC, New York, NY (Charles Jeanfreau and Law Office of Keith S. Garret, P.C. [Bruce N. Roberts], of counsel), for appellant. Elias N. Sakalis, Riverdale, NY, for respondent Peter Dinicola. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Bruce J. Bergman and James E. Durso of counsel), for respondent People’s United Bank. In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated January 19, 2017. The order, insofar as appealed from, granted the motion of the defendant People’s United Bank for summary judgment dismissing the complaint insofar as asserted against it, denied that branch of the motion of the plaintiff’s predecessor in interest which was for summary judgment on the complaint insofar as asserted against the defendant People’s United Bank, and, sua sponte, directed dismissal of the complaint insofar as asserted against the defendants Peter Dinicola and John Juliano, as temporary administrator for the estate of Justine DeNicola, as abandoned pursuant to CPLR 3215(c). ORDERED that on the Court’s own motion, the notice of appeal from so much of the order as, sua sponte, directed dismissal of the complaint insofar as asserted against the defendants Peter Dinicola and John Juliano, as temporary administrator for the estate of Justine DeNicola, as abandoned pursuant to CPLR 3215(c) is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further, ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting the motion of the defendant People’s United Bank for summary judgment dismissing the complaint insofar as asserted against it, and substituting therefor a provision denying that motion, without prejudice to renew upon the completion of discovery, and (2) by deleting the provision thereof, sua sponte, directing dismissal of the complaint insofar as asserted against the defendant John Juliano, as temporary administrator for the estate of Justine DeNicola, as abandoned pursuant to CPLR 3215(c); as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. In 1993, the defendant Peter Dinicola, also known as Peter DeNicola (hereinafter Peter), obtained title to real property known as 1695 Chablis Path, Lot 7, in Southold. On August 18, 2003, Peter borrowed the sum of $324,000 from Greenpoint Mortgage Funding, Inc. (hereinafter Greenpoint), and the loan was secured by a mortgage encumbering the subject property. On September 8, 2004, Peter conveyed the subject property to Justine DeNicola (hereinafter Justine). On August 11, 2005, Peter and Justine borrowed the sum of $500,000 from Washington Mutual Bank, FA (hereinafter WaMu). The loan was secured by a mortgage that correctly described the subject property’s address as “1695 Chablis Path,” but erroneously described the subject property as “Lot 8″ (instead of Lot 7). At the closing on the WaMu loan, the loan proceeds were used to satisfy the Greenpoint loan. The WaMu mortgage was recorded by the Suffolk County Clerk against Lot 8. On October 29, 2008, Justine opened a home equity line of credit with Bank of Smithtown. The line of credit was secured by a mortgage against the subject property, which was correctly recorded against Lot 7 on November 13, 2008. The defendant People’s United Bank (hereinafter People’s United) is the successor in interest to Bank of Smithtown. On September 25, 2009, a corrected WaMu mortgage was filed with the Suffolk County Clerk, correctly describing the subject property, in relevant part, as “Lot Number 7.” On March 8, 2011, the plaintiff’s predecessor in interest, JPMorgan Chase Bank, National Association (hereinafter JPMorgan), as successor in interest to the WaMu note and mortgage, commenced this action to foreclose the WaMu mortgage. People’s United answered and asserted as an affirmative defense that its mortgage was senior to the WaMu mortgage. Peter filed a pro se notice of appearance dated March 12, 2011. Justine died during the pendency of the action, and a temporary administrator was substituted in her place. On January 17, 2014, the temporary administrator filed an answer to the complaint. On July 8, 2014, JPMorgan assigned its interest in the WAMU note and mortgage to the plaintiff, US Bank National Association. On July 5, 2016, People’s United moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that its correctly recorded mortgage was senior to the WaMu mortgage. On September 16, 2016, JPMorgan moved, inter alia, for summary judgment on the complaint insofar as asserted against People’s United and for leave to enter a default judgment against the other defendants. JPMorgan argued that it was entitled to summary judgment on the complaint insofar as asserted against People’s United pursuant to a theory of equitable subrogation or, in the alternative, that People’s United’s motion was premature, as that defendant had not responded to certain discovery requests by JPMorgan relevant to the issue of whether People’s United had notice of the WaMu mortgage at the time that People’s United’s mortgage was recorded. Accordingly, JPMorgan requested that the matter be set down for a preliminary conference. On November 30, 2016, Peter cross-moved, inter alia, to vacate his default in answering the complaint and to dismiss the complaint insofar as asserted against him. In the order appealed from, the Supreme Court, inter alia, granted People’s United’s motion for summary judgment dismissing the complaint insofar as asserted against it and denied that branch of JPMorgan’s motion which was for summary judgment on the complaint insofar as asserted against People’s United. The court granted that branch of JPMorgan’s motion which was to amend the caption to substitute US Bank National Association as the plaintiff. Further, the court, sua sponte, directed dismissal of the complaint insofar as asserted against Justine’s estate and Peter as abandoned pursuant to CPLR 3215(c) and denied Peter’s cross motion as academic. Under the doctrine of equitable subrogation, “[w]here property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder” (King v. Pelkofski, 20 NY2d 326, 333 [internal quotation marks omitted]). “This principle has been applied to situationswhere the funds of a mortgagee are used to satisfy the lien of an existing, known incumbrance when, unbeknown to the mortgagee, another lien on the property exists which is senior to his but junior to the one satisfied with his funds” (id. at 333-334). “In order to avoid the unjust enrichment of the intervening, unknown lienor, the mortgagee is entitled to be subrogated to the rights of the senior incumbrance” (id. at 334). Here, JPMorgan failed to establish, prima facie, that the WaMu mortgage should be equitably subrograted to the rights of the People’s United mortgage, as the People’s United mortgage was not yet in existence at the time the funds from the WaMu loan were purportedly used to extinguish the Greenpoint mortgage. Since the People’s United mortgage was not an “intervening lien” between the Greenpoint mortgage and the WaMu mortgage, the doctrine of equitable subrogation has no applicability (cf. Filan v. Dellaria, 144 AD3d 967, 972). Accordingly, that branch of JPMorgan’s motion which was for summary judgment on the complaint insofar as asserted against People’s United pursuant to a theory of equitable subrogration was properly denied, regardless of the sufficiency of People’s United’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). With respect to People’s United’s motion for summary judgment dismissing the complaint insofar as asserted against it, JPMorgan established that facts essential to establish that People’s United was on notice of the WaMu mortgage at the time that Justine entered into the home equity line of credit may exist, but are currently unavailable. Accordingly, People’s United’s motion for summary judgment dismissing the complaint insofar as asserted against it should have been denied, without prejudice to renew upon the completion of discovery (see CPLR 3212[f]; UD 1635, LLC v. Winkler, 156 AD3d 742, 743). The Supreme Court should not have, sua sponte, directed dismissal of the complaint insofar as asserted against Justine’s estate as abandoned pursuant to CPLR 3215(c). CPLR 3215(c) is not applicable to Justine’s estate under the circumstances of this case, as it appeared in the action by answer (see Bank of Am., N.A. v. Rice, 155 AD3d 593, 594). However, we agree with the Supreme Court’s determination to direct dismissal of the complaint insofar as asserted against Peter as abandoned pursuant to CPLR 3215(c). Although Peter filed a notice of appearance, he was nevertheless in default in answering the complaint. The plaintiff failed to take proceedings against Peter within one year after his default and failed to establish sufficient cause for such failure (see CPLR 3215[c]; Chase Home Fin., LLC v. Fernandez, 175 AD3d 1381, 1382). RIVERA, J.P., MALTESE, CONNOLLY and BRATHWAITE NELSON, JJ., concur. By Scheinkman, P.J.; Mastro, Rivera, Dillon, Austin, JJ. IN THE MATTER OF SCOTT C. PEREZ, AN ATTORNEY AND COUNSELOR-AT-LAW. GRIEVANCE COMMITTEE FOR THE SECOND, ELEVENTH, AND THIRTEENTH JUDICIAL DISTRICTS, pet; SCOTT C. PEREZ, res (Index No. 3903366) JOINT MOTION pursuant to 22 NYCRR 1240.8(a)(5) by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts and the respondent, Scott C. Perez, for discipline on consent. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on January 24, 2001. Diana Maxfield Kearse, Brooklyn, NY (Kathryn Donnelly of counsel), for petitioner. Scalise & Hamilton, P.C., Scarsdale, NY (Deborah A. Scalise of counsel), for respondent. PER CURIAM. The Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts served the respondent with a verified petition dated May 17, 2019, containing two charges of professional misconduct. The respondent filed an answer dated July 1, 2019. The Grievance Committee and the respondent now jointly move pursuant to 22 NYCRR 1240.8(a)(5) for discipline on consent, and request the imposition of a public censure. As provided for in 22 NYCRR 1240.8(a)(5)(i), the parties have submitted a joint affirmation dated August 20, 2019, in support of the motion. In addition, the respondent has submitted an affidavit sworn to on August 13, 2019, in support of the motion. By virtue of the stipulation presented with the joint affirmation, the parties have agreed that the following factual specifications are not in dispute: In or about December 2013, Sarra Yepisheva’s granddaughter, Liya Koss, contacted the respondent after Yepisheva was injured while exiting a vehicle driven by Luis Castillo and owned by New Superior Radio Group, Corp. (hereinafter New Superior Radio Group). In or about December 2013, the respondent agreed to commence a lawsuit against Castillo and New Superior Radio Group. The respondent told Koss that another attorney, Evelina Luzhansky, had agreed to be the attorney of record, and that the respondent would be handling the case and would be the person to contact. As the respondent and Luzhansky had previously agreed to work on a prior civil matter together, the respondent believed that he could do the same with respect to Yepisheva’s matter. Without Luzhansky’s knowledge or consent, the respondent had Yepisheva sign Luzhansky’s retainer agreement. On March 25, 2014, the respondent commenced a lawsuit on behalf of Yepisheva by filing a summons and complaint using the New York State Electronic Filing System (hereinafter NYSCEF) in the Supreme Court, New York County. Without her knowledge and consent, the respondent used Luzhansky’s name and password to file those documents using the NYSCEF system, because Luzhansky had previously provided him with her personal information and password to do so. The respondent used Luzhansky’s digital signature and signed her name on documents filed in the Supreme Court, New York County, without her knowledge and consent. Specifically, on March 25, 2014, the respondent commenced an action by filing a summons and complaint against Castillo and New Superior Radio Group in the Supreme Court, New York County, using Luzhansky’s name without her knowledge or consent. Neither Castillo nor New Superior Radio Group interposed an answer to the complaint. The respondent filed a motion for leave to enter a default judgment, which was denied on February 27, 2015, with leave to bring another motion for the same relief upon proper papers. In an order dated March 25, 2015, the Supreme Court issued a case scheduling order, setting forth the time within which discovery had to be completed. A mandatory compliance conference was scheduled for October 16, 2015. The respondent did not comply with the court’s scheduling order or appear at the mandatory conference and took no further action in the case. The respondent did not inform his client of the status of her case. The respondent did not respond to his client’s inquiries regarding her case, received from Koss. As required, the respondent has submitted an affidavit with this motion in which he conditionally admits the foregoing facts, and that those facts establish that he engaged in conduct that violated rules 1.3(b) and 8.4(c) of the Rules of Professional Conduct (22 NYCRR 1200.0). The respondent consents to the agreed discipline of a public censure, which consent is given freely and voluntarily without coercion or duress. Lastly, the respondent states that he is fully aware of the consequences of consenting to such discipline, having discussed the consequences with his attorney. In mitigation, the respondent asserts, inter alia, that he never intended to cause any party any harm; that he believed that he had Luzhansky’s permission to file documents under her NYSCEF account and to use her digital signature as Luzhansky had previously authorized him to do so in connection with another matter; that he was wrong to neglect the matter; that he cooperated with the investigation; that he will no longer handle any civil matters outside of his area of expertise (insurance defense); that he is remorseful; that he has no prior disciplinary history; that he has a history of providing pro bono legal services to needy individuals; and that he has an unblemished reputation in the community. The parties agree that there are no aggravating factors. Based on the foregoing, we find that the motion for discipline on consent pursuant to 22 NYCRR 1240.8(a)(5) should be granted, and that a pubic censure is warranted in view of the respondent’s admitted misconduct, the mitigating factors presented herein, and the absence of any aggravating factors (see Matter of Dittakavi, 155 AD3d 10; Matter of Nudo, 132 AD3d 170). SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and AUSTIN, JJ., concur. ORDERED that the joint motion pursuant to 22 NYCRR 1240.8(a)(5) for discipline on consent is granted; and it is further, ORDERED that the respondent, Scott C. Perez, is publicly censured for his misconduct. By Dillon, J.P.; Cohen, Duffy, Connolly, JJ. KENNETH J. FINGER, ET AL., app, v. 162 GRAND STREET REALTY, LLC, res (Index No. 57332/16) Finger & Finger, P.C., White Plains, NY (Daniel S. Finger of counsel), for appellants. Dorf & Nelson LLP, Rye, NY (Jonathan B. Nelson and Alyson Kuritzky of counsel), for respondent. In an action, inter alia, for declaratory relief, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Linda S. Jamieson), dated March 13, 2017. The order, insofar as appealed from, denied that branch of the plaintiffs’ motion which was for summary judgment declaring that they had acquired title to the subject real property by adverse possession, denied that branch of the plaintiffs’ motion in limine which was to preclude the defendant from offering the deposition of nonparty witness James Marino at trial, and granted the defendant’s cross motion for summary judgment, in effect, declaring that the plaintiffs are not the owners of the disputed property by adverse possession, and dismissing the amended complaint. ORDERED that the appeal from so much of the order as denied that branch of the plaintiffs’ motion in limine which was to preclude the defendant from offering the deposition of nonparty witness James Marino at trial is dismissed because that portion of the order appealed from is an evidentiary ruling, which is neither appealable as of right nor by permission (see Curtis v. Fishkill Allsport Fitness & Racquetball Club, 2 AD3d 768); and it is further, ORDERED that the order is affirmed insofar as reviewed, and the matter is remitted to the Supreme Court, Westchester County, for the entry of judgment, inter alia, declaring that the plaintiffs are not the owners of the disputed property by adverse possession; and it is further, ORDERED that one bill of costs is awarded to the defendant. The plaintiffs and the defendant own adjacent parcels of real property located on Grand Street in White Plains. In May 2016, the plaintiffs commenced this action, seeking, inter alia, a judgment declaring that the plaintiffs had acquired, pursuant to the doctrine of adverse possession, title to a 24-inch strip of land on the defendant’s property that runs between the plaintiffs’ property and the defendant’s property and extends the length of a driveway separating the properties, and a 4-foot strip of land on the defendant’s property that runs between the plaintiffs’ property and the defendant’s property at the rear of defendant’s property (hereinafter together the disputed property). The plaintiffs moved for summary judgment seeking, inter alia, a declaration that they had acquired title to the disputed property by adverse possession. The defendant cross-moved for summary judgment, in effect, declaring that the plaintiffs are not the owners of the disputed property by adverse possession, and dismissing the amended complaint. The Supreme Court, inter alia, denied that branch of the plaintiffs’ motion which was for summary judgment declaring that they had acquired title to the disputed property by adverse possession, and granted the defendant’s cross motion. The plaintiffs appeal. “A party seeking to obtain title by adverse possession must prove by clear and convincing evidence the following common-law requirements of adverse possession: that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4) it was exclusive; and (5) it was continuous for the statutory period of 10 years” (Skyview Motel, LLC v. Wald, 82 AD3d 1081, 1082; see Ram v. Dann, 84 AD3d 1204, 1205; BTJ Realty, Inc. v. Caradonna, 65 AD3d 657, 658). Additionally, under the law in effect when title allegedly vested in the plaintiffs by adverse possession, where, as here, the adverse possession is not founded upon a written instrument, the possessor must also establish that the disputed property was either “‘usually cultivated or improved’” or “‘protected by a substantial inclosure’” (Skyview Motel, LLC v. Wald, 82 AD3d at 1082, quoting RPAPL former 522; see BTJ Realty, Inc. v. Caradonna, 65 AD3d at 658). We agree with the Supreme Court’s determination denying that branch of the plaintiffs’ motion which was for summary judgment declaring that they had acquired title to the disputed property by adverse possession, as they failed to establish, as a matter of law, that the disputed property was either “usually cultivated or improved” or “protected by a substantial inclosure” (see Rowland v. Crystal Bay Constr., 301 AD2d 585, 585-586). Further, we agree with the court’s determination granting the defendant’s cross motion for summary judgment, in effect, declaring that the plaintiffs are not the owners of the disputed property by adverse possession, and dismissing the amended complaint. The defendant established, prima facie, that the plaintiffs’ acts of maintaining and using the disputed property did not satisfy the statutory requirement of usual cultivation or improvement (see id. at 585-586; Giannone v. Trotwood Corp., 266 AD2d 430, 431), and that the disputed property was not protected by a substantial enclosure (see RPAPL former 522). Additionally, the defendant established, prima facie, that the plaintiffs’ possession of the disputed property was not under a claim of right (see Bockowski v. Malak, 280 AD2d 572). In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d 557, 562). The plaintiffs’ remaining contentions, raised for the first time on appeal, are not properly before this Court. Since this is an action, among other things, for declaratory relief, we remit the matter to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the plaintiffs are not the owners of the disputed property by adverse possession (see Lanza v. Wagner, 11 NY2d 317, 334; Birch Tree Partners, LLC v. Windsor Digital Studio, LLC, 132 AD3d 932, 933). DILLON, J.P., COHEN, DUFFY and CONNOLLY, JJ., concur. By Mastro, J.P.; Miller, Maltese, Nelson, JJ. BLAISE HEID, ET AL., app, v. RENWOOD ASSOCIATES, INC., ET AL., res (Index No. 606973/16) Rosenberg, Feldman & Smith, LLP, New York, NY (Richard Feldman of counsel), for appellants. Berkman, Henoch, Peterson, Peddy & Fenchel, Garden City, NY (Peter Sullivan of counsel), for respondents Renwood Associates, Inc., Richard Mohring, and 44 Sea Cliff Avenue, LLC. Shanker Law Group, Mineola, NY (Neil A. Bloom of counsel), for respondents HRY, LLC, and Harry Bienenfeld. In an action, inter alia, to set aside a fraudulent conveyance, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Anthony L. Parga, J.), entered May 25, 2017. The order, insofar as appealed from, (1) granted those branches of the separate motions of the defendants Renwood Associates, Inc., Richard Mohring, and 44 Sea Cliff Avenue, LLC, and the defendants HRY, LLC, and Harry Bienenfeld, which were pursuant to CPLR 3211(a) to dismiss the fourth cause of action insofar as asserted against each of them, for summary judgment dismissing the first through third causes of action insofar as asserted against each of them, and to strike the plaintiff’s notice of pendency, and (2) denied, as academic, the plaintiffs’ cross motion pursuant to CPLR 602 to consolidate the action with an action entitled Heid v. HRY LLC, pending in the same court under Index No. 601914/15. ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the defendants appearing separately and filing separate briefs. In May 2014, the plaintiffs purchased a parcel of real property (hereinafter Lot 417) from the defendant HRY, LLC (hereinafter HRY). Thereafter, in March 2015, the plaintiffs commenced an action (hereinafter the March 2015 action) against, among others, HRY. In the March 2015 action, the plaintiffs asserted claims based on fraud, rescission, and the breach of the covenant of good faith and fair dealing arising from the plaintiffs’ purchase of Lot 417. In May 2015, HRY, which owned a parcel of real property (hereinafter Lot 416) adjacent to the plaintiffs’ Lot 417, transferred title to Lot 416 to the defendant Renwood Associates, Inc. (hereinafter Renwood). Thereafter, in September 2016, the plaintiffs commenced the instant action against HRY, its managing member Harry Bienenfeld, 44 Sea Cliff Avenue, LLC, of which Bienenfeld was a member, Richard Mohring, who was also a member of 44 Sea Cliff Avenue, LLC, and Renwood, alleging that the defendants “orchestrated the transfer of Lot 416 from defendant HRY to defendant Renwood for the purpose of frustrating [the] [p]laintiff[s'] ability to collect a judgment in the [March 2015 action].” The complaint asserted, among other things, four causes of action to set aside the allegedly fraudulent conveyance of Lot 416 pursuant to Debtor and Creditor Law 273, 273-a, 275, and 276. The plaintiffs also filed a notice of pendency. Renwood, Mohring, and 44 Sea Cliff Avenue, LLC, moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, for summary judgment dismissing the complaint insofar as asserted against them, and to strike the plaintiffs’ notice of pendency. HRY and Bienenfeld separately moved for the same relief as to them. The plaintiffs cross-moved pursuant to CPLR 602 to consolidate this action with the March 2015 action. The Supreme Court granted those branches of the defendants’ separate motions which were pursuant to CPLR 3211(a)(7) to dismiss the fourth cause of action, for summary judgment dismissing the first through third causes of action, and to strike the notice of pendency, and denied the plaintiffs’ cross motion as academic. The plaintiffs appeal. On appeal, the plaintiffs contend that the Supreme Court erred in granting dismissal of the first four causes of action insofar as asserted against each of the defendants and to strike the notice of pendency. The plaintiffs further contend that the court erred in denying their cross motion to consolidate this action with the March 2015 action. We affirm the order insofar as appealed from. We agree with the Supreme Court’s determination to grant those branches of the defendants’ separate motions which were for summary judgment dismissing the first through third causes of action, which sound in fraudulent conveyance under Debtor and Creditor Law 273, 273-a, and 275. In order to prevail on causes of action under those sections of the Debtor and Creditor Law, the plaintiffs were required to establish that the conveyance was made “without a fair consideration” (Debtor and Creditor Law 273, 273-a, 275). Here, in support of their separate motions, the defendants submitted evidence which demonstrated, prima facie, that HRY sold Lot 416 to Renwood for the sum of $725,000, and that this price constituted fair consideration based on the condition of the property at the time of the sale. In opposition, the plaintiffs failed to raise a triable issue of fact. We also agree with the Supreme Court’s determination to grant those branches of the defendants’ separate motions which were pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of Debtor and Creditor Law 276 insofar as asserted against each of them (see generally Lamberti v. Plaza Equities, LLC, 161 AD3d 837, 839). A cause of action under Debtor and Creditor Law 276 must be pleaded with sufficient particularity pursuant to CPLR 3016(b) (see Swartz v. Swartz, 145 AD3d 818, 826; Gaetano Dev. Corp. v. Lee, 121 AD3d 838, 840). Contrary to the plaintiffs’ contention, the cause of action alleging a violation of Debtor and Creditor Law 276 was not pleaded with sufficient particularity (see CPLR 3016[b]; NTL Capital, LLC v. Right Track Rec., LLC, 73 AD3d 410, 412). Accordingly, under the circumstances, the Supreme Court also properly denied, as academic, the plaintiffs’ cross motion pursuant to CPLR 602 to consolidate this action with the March 2015 action. MASTRO, J.P., MILLER, MALTESE and BRATHWAITE NELSON, JJ., concur. By Balkin, J.P.; Leventhal, Roman, Connolly, JJ. IRIS VEGA, res, v. STEVEN GAMBINO, app (Index No. 503253/17) Polizzotto & Polizzotto, LLC, Brooklyn, NY (Emilio Rodriguez of counsel), for appellant. Weiss & Akerman P.C., New York, NY (Robert Weiss of counsel), for respondent. In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated October 30, 2018. The order denied the defendant’s motion for leave to reargue and renew his prior motion, inter alia, to vacate an order of the same court dated May 3, 2018, granting the plaintiff’s motion for leave to enter a default judgment, which was denied in an order of the same court dated August 16, 2018. ORDERED that the appeal from so much of the order dated October 30, 2018, as denied that branch of the defendant’s motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further, ORDERED that the order dated October 30, 2018, is affirmed insofar as reviewed, with costs. The plaintiff allegedly was injured when she slipped and fell on premises owned or managed by the defendant. The plaintiff commenced this personal injury action against the defendant and served the defendant pursuant to CPLR 308(2) by delivering the summons and complaint to the defendant’s coworker at the defendant’s actual place of business and by mailing the summons and complaint to the defendant at the same address. The defendant failed to appear or answer the complaint. In an order dated May 3, 2018, the Supreme Court granted the plaintiff’s unopposed motion for leave to enter a default judgment and scheduled an inquest on the issue of damages. The defendant moved, inter alia, to vacate this order, asserting that he never received the summons and complaint. In an order dated August 16, 2018, the court denied the defendant’s motion. The defendant then moved for leave to reargue and renew his prior motion to vacate the order dated May 3, 2018. In support of his motion, the defendant submitted, among other things, his affidavit, which included additional information not contained in his original affidavit submitted on his prior motion, and an affidavit from his coworker. In an order dated October 30, 2018, the court denied the defendant’s motion. The defendant appeals. Pursuant to CPLR 2221, a motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e][2], [3]; see Fardin v. 61st Woodside Assoc., 125 AD3d 593, 595; Matter of O’Gorman v. O’Gorman, 122 AD3d 744). “A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Worrell v. Parkway Estates, LLC, 43 AD3d 436, 437; see Fardin v. 61st Woodside Assoc., 125 AD3d at 595). Here, the Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was for leave to renew his prior motion, inter alia, to vacate the order granting the plaintiff’s motion for leave to enter a default judgment. The defendant failed to demonstrate a reasonable justification for his failure to present his coworker’s affidavit or to include the additional information in his affidavit in support of his original motion to vacate (see Singh v. Weisberg, 178 AD3d 873, 874; Abrams v. Berelson, 94 AD3d 782, 784; Beyl v. Franchini, 37 AD3d 505, 506). Furthermore, the defendant failed to demonstrate that the new facts would have changed the prior determination (see CPLR 308[6]; Bedessee Imports, Inc. v. Najjar, 170 AD3d 640, 641-642; Edan v. Johnson, 117 AD3d 528, 529; Grasso v. Matarazzo, 288 AD2d 185). BALKIN, J.P., LEVENTHAL, ROMAN and CONNOLLY, JJ., concur. By Rivera, J.P.; Roman, Cohen, Hinds-Radix, JJ. IN THE MATTER OF CARTER R. (ANONYMOUS), app, ADMINISTRATION FOR CHILDREN’S SERVICES, pet-app; CAMESHA B. (ANONYMOUS), res (Proceeding No. 1); IN THE MATTER OF KIMORA B. (ANONYMOUS). ADMINISTRATION FOR CHILDREN’S SERVICES, pet-app; CAMESHA B. (ANONYMOUS), res (Proceeding No. 2); IN THE MATTER OF CARMA B. (ANONYMOUS), app, ADMINISTRATION FOR CHILDREN’S SERVICES, pet-app; CAMESHA B. (ANONYMOUS), res (Proceeding No. 3) (Index No. N-10418-19, N-10419-19, N-10420-19) James E. Johnson, Corporation Counsel, New York, NY (Jane L. Gordon and Jessica Miller of counsel), for petitioner-appellant. Janet E. Sabel, New York, NY (Dawne A. Mitchell and John A. Newbery of counsel), attorney for the children, the appellants Carter R. and Carma B. William C. Hoffman, Brooklyn, NY, for respondent. In related proceedings pursuant to Family Court Act article 10, the petitioner appeals, and the children Carter R. and Carma B. separately appeal, from an order of the Family Court, Kings County (Ben Darvil, Jr., J.), dated June 19, 2019. The order, insofar as appealed from, after a hearing, granted that branch of the mother’s application pursuant to Family Court Act 1028 which was to return two of the subject children to her custody pending the outcome of the proceedings. ORDERED that the order is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and that branch of the mother’s application pursuant to Family Court Act 1028 which was to return two of the subject children to her custody pending the outcome of the proceedings is denied. The petitioner, the Administration for Children’s Services, commenced these related proceedings pursuant to Family Court Act article 10, alleging, in three separate petitions, that the mother neglected the subject children, inter alia, by failing to appropriately respond to allegations that her 16-year-old son had sexually abused one of the subject children, and by leaving another of the subject children in that son’s care while she gave birth to the third subject child. After commencing these proceedings, the petitioner temporarily removed the subject children from the mother’s home. The mother made an application pursuant to Family Court Act 1028 for the return of the subject children to her custody, and the Family Court conducted a hearing on the application. After the hearing, the court denied the mother’s application with respect to one of the subject children but granted it with respect to two of the subject children. These appeals ensued. “An application pursuant to Family Court Act 1028 to return a child who has been temporarily removed ‘shall’ be granted unless the Family Court finds that ‘”the return presents an imminent risk to the child’s life or health”‘” (Matter of Tatih E. [Keisha T.], 168 AD3d 935, 935, quoting Matter of Romeo O. [Sita P.-M.], 163 AD3d 574, 575, quoting Family Court Act 1028[a]). The court’s determination will not be disturbed if it is supported by a sound and substantial basis in the record (see Matter of Tatih E. [Keisha T.], 168 AD3d at 935; Matter of Essence R. [Ebony B.R.], 158 AD3d 806, 806). In making its determination, the court “‘must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal’” (Matter of Romeo O. [Sita P.-M.], 163 AD3d at 575, quoting Nicholson v. Scoppetta, 3 NY3d 357, 378). The court “‘must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests’” (Matter of Romeo O. [Sita P.-M.], 163 AD3d at 575, quoting Nicholson v. Scoppetta, 3 NY3d at 378). “Evidence that the children who are the subject of the proceeding were previously harmed while in the parent’s care is not required where it is shown that the parent demonstrated such an impaired level of parental judgment with respect to one child so as to create a substantial risk of harm to any child in that parent’s care” (Matter of Tatih E. [Keisha T.], 168 AD3d at 936 [internal quotation marks omitted]; see Matter of Victoria B. [Jonathan M.], 161 AD3d 1145, 1146). The child services agency bears the burden of establishing that the subject child would be at imminent risk and therefore should remain in its custody (see Matter of Marquel J., 269 AD2d 396). Here, the Family Court’s determination granting that branch of the mother’s application which was for the return of two of the subject children lacked a sound and substantial basis in the record. The evidence at the hearing demonstrated that, after one of the subject children reported to the mother that her older brother had been sexually abusing her since she was 10 years old, the mother did not address the sexual abuse and did not provide increased supervision for the subject children. Further, the petitioner demonstrated that the mother left one of the subject children in the older brother’s care, for at least a period of time, while she gave birth to the third subject child, in violation of an order dated March 23, 2018. Under the circumstances, we cannot agree that the return of two of the subject children to the mother’s custody, notwithstanding the conditions that were imposed, would not present an imminent risk to the children’s life or health (see Matter of Tatih E. [Keisha T.], 168 AD3d at 936; see also Matter of Derrick GG. [Jennifer GG.], 177 AD3d 1124, 1125-1126). Accordingly, the mother’s application for the return of the subject children should have been denied in its entirety. RIVERA, J.P., ROMAN, COHEN and HINDS-RADIX, JJ., concur. By Scheinkman, P.J.; Mastro, Rivera, Dillon, Hinds-Radix, JJ. IN THE MATTER OF MICHAEL EDWARD MOSCARITOLO, AN ATTORNEY AND COUNSELOR-AT-LAW. GRIEVANCE COMMITTEE FOR THE TENTH JUDICIAL DISTRICT, pet, MICHAEL EDWARD MOSCARITOLO, res (Index No. 4774709) MOTION by the Grievance Committee for the Tenth Judicial District to strike the respondent’s name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law 90(4), based upon his conviction of a felony. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on May 5, 2010. Catherine A. Sheridan, Hauppauge, NY (Rachel Merker of counsel), for petitioner. PER CURIAM. On May 2, 2019, after a jury trial before the Hon. Cornelius J. Moriarty II, a Justice of the Massachusetts Superior Court for Plymouth County, the respondent was found guilty of one count of unarmed burglary and assault, in violation of Mass Gen Laws ch 266 14, one count of unarmed robbery, in violation of Mass Gen Laws ch 265 19(b), and five counts of larceny of a firearm, in violation of Mass Gen Laws ch 266 30(1). Pursuant to Judiciary Law 90(4)(a) and (e), a lawyer is automatically disbarred upon his or her conviction of a felony committed in another state which is “essentially similar” to a felony under New York law (Matter of Margiotta, 60 NY2d 147, 149). Conviction of a felony occurs, inter alia, upon the entry of a verdict of guilty (see CPL 1.20[13]). The Grievance Committee for the Tenth Judicial District now moves to strike the respondent’s name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law 90(4), based upon his felony convictions. The Grievance Committee contends, inter alia, that the respondent’s conviction of unarmed robbery (Mass Gen Laws ch 265 19[b]) is essentially similar to the New York felony of robbery in the third degree, a class D felony (Penal Law 160.05). Mass Gen Laws ch 265 19(b) provides: “Whoever, not being armed with a dangerous weapon, by force and violence, or by assault and putting in fear, robs, steals or takes from the person of another, or from his immediate control, money or other property which may be the subject of larceny, shall be punished by imprisonment in the state prison for life or for any term of years.” Under Penal Law 160.05, a person is guilty of robbery in the third degree when he or she forcibly steals property. Although the respondent was served, by mail, with a copy of the Grievance Committee’s motion on October 24, 2019, he has neither submitted a response nor requested additional time in which to do so. Under the circumstances of this case, we conclude that the respondent’s conviction of unarmed robbery (Mass Gen Laws ch 265 19[b]) is essentially similar to the New York felony of robbery in the third degree, a class D felony (Penal Law 160.05). By virtue of his felony conviction, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law 90(4)(a). Accordingly, the Grievance Committee’s motion to strike the respondent’s name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law 90(4), is granted to reflect the respondent’s disbarment as of May 2, 2019. SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and HINDS-RADIX, JJ., concur. ORDERED that the Grievance Committee’s motion to strike the name of the respondent, Michael Edward Moscaritolo, from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law 90(4), is granted; and it is further, ORDERED that pursuant to Judiciary Law 90(4)(a), the respondent, Michael Edward Moscaritolo, is disbarred, effective May 2, 2019, and his name is stricken from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law 90(4)(b); and it is further, ORDERED that the respondent, Michael Edward Moscaritolo, shall comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); and it is further, ORDERED that pursuant to Judiciary Law 90, the respondent, Michael Edward Moscaritolo, is commanded to desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further, ORDERED that if the respondent, Michael Edward Moscaritolo, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency, and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 1240.15(f). By Mastro, J.P.; Balkin, Leventhal, Barros, JJ. DANIEL HAYTER, app, v. EMMA HAYTER, res (Index No. 69293/13) Frasilie Stinvil, New York, NY, for appellant. Guttridge & Cambareri, P.C., White Plains, NY (John C. Guttridge, Jo-Ann Cambareri, and Scott Stone of counsel), for respondent. In a matrimonial action, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Janet Malone, J.), dated April 28, 2017, (2) an order of the same court dated August 21, 2017, (3) an order of the same court also dated August 21, 2017, (4) an order of the same court dated October 18, 2017, and (5) a money judgment of the same court also dated October 18, 2017. The order dated April 28, 2017, insofar as appealed from, denied that branch of the plaintiff’s motion which was, in effect, to set aside the child support provisions in the parties’ stipulation of settlement or, in the alternative, for a downward modification of his child support obligation. The first order dated August 21, 2017, insofar as appealed from, in effect, denied that branch of the plaintiff’s cross motion which was to set aside the provision in the judgment of divorce requiring him to pay 50% of the parties’ children’s private school tuition. The second order dated August 21, 2017, insofar as appealed from, in effect, granted that branch of the defendant’s cross motion which was for an award of child support arrears and counsel fees, and awarded the defendant the sum of $164,016.68, representing arrears for basic child support, health insurance, private school tuition, extracurricular activities for the children, and marital debt due and owing through May 22, 2017. The order dated October 18, 2017, insofar as appealed from, granted the defendant’s motion for counsel fees and expenses. The money judgment dated October 18, 2017, upon the second order dated August 21, 2017, is in favor of the defendant and against the plaintiff in the principal sum of $164,016.68. ORDERED that the appeal from the second order dated August 21, 2017, is dismissed, as that order was superseded by the money judgment; and it is further, ORDERED that the order dated April 28, 2017, the first order dated August 21, 2017, and the order dated October 18, 2017, are affirmed insofar as appealed from; and it is further, ORDERED that the money judgment dated October 18, 2017, is affirmed; and it is further, ORDERED that one bill of costs is awarded to the defendant. The parties were married in 1999 and have two children. In 2013, the husband commenced this action for a divorce and ancillary relief and in 2015, the parties entered into a stipulation of settlement resolving, among other things, issues of child support. Pursuant to the stipulation of settlement, the parties opted out of the provisions of the Child Support Standards Act (hereinafter CSSA), and the plaintiff agreed to pay the sum of $7,000 per month in basic child support. Thereafter, on May 22, 2015, a judgment of divorce was entered which incorporated but did not merge the parties’ stipulation of settlement. In November 2016, the plaintiff moved, inter alia, in effect, to set aside the child support provisions of the stipulation of settlement or, in the alternative, for a downward modification of his child support obligation. In an order dated April 28, 2017, the Supreme Court, among other things, denied that branch of the plaintiff’s motion. “Domestic Relations Law 240(1-b)(h) requires that any agreement or stipulation voluntarily entered into between the parties, and presented to the court for incorporation in an order or judgment, must include provisions: (1) stating that the parties have been advised of the provisions of the CSSA; (2) stating the basic child support provisions of the CSSA would presumptively result in the determination of the correct amount of child support to be awarded; (3) stating what the amount of basic child support would have been if calculated pursuant to the CSSA, if the parties’ stipulation or agreement deviates from the basic child support obligation; and (4) setting forth the parties’ reason or reasons for deviating from the CSSA calculation, if they have chosen to deviate” (Pellerito v. Pellerito, 148 AD3d 1040, 1040-1041). Here, contrary to the plaintiff’s contention, the parties’ stipulation of settlement, which was incorporated but not merged into the judgment of divorce, complied with the above requirements. Thus, the plaintiff knowingly opted out of the statutory provisions of the CSSA (see Bitic v. Bitic, 148 AD3d 664). The plaintiff’s remaining contentions are without merit. MASTRO, J.P., BALKIN, LEVENTHAL and BARROS, JJ., concur. By Scheinkman, P.J.; Hinds-Radix, Barros, Wooten, JJ. DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC., res, v. GARY GATTI, ETC., app, ET AL., def (Index No. 18764/12) Scott Lockwood, Deer Park, NY, for appellant. McGlinchey Stafford, New York, NY (Brian S. McGrath and Kristen D. Romano of counsel), for respondent. In an action to foreclose a mortgage, the defendant Gary Gatti appeals from two orders of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), both dated March 9, 2017. The first order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Gary Gatti, to strike that defendant’s answer, and for an order of reference, and denied that branch of that defendant’s cross motion which was for summary judgment dismissing the complaint insofar as asserted against him for lack of standing. The second order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Gary Gatti and to strike that defendant’s answer, and referred the matter to a referee to compute the amount due to the plaintiff. ORDERED that the orders are affirmed insofar as appealed from, with costs. On this appeal, the defendant Gary Gatti (hereinafter the defendant) concedes that the note in question was physically delivered by the original lender to the plaintiff. The defendant contends, however, that the physical transfer of the note did not convey title to the note in that the note lacked an endorsement in blank. This contention is without merit as the record reflects that the note was endorsed in blank. The defendant’s remaining contention is without merit. SCHEINKMAN, P.J., HINDS-RADIX, BARROS and WOOTEN, JJ., concur. By Scheinkman, P.J.; Hinds-Radix, Barros, Wooten, JJ. DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC., res, v. GARY GATTI, ETC., app, ET AL., def (Index No. 18764/12) Scott Lockwood, Deer Park, NY, for appellant. McGlinchey Stafford, New York, NY (Kristen D. Romano and Brian S. McGrath of counsel), for respondent. In an action to foreclose a mortgage, the defendant Gary Gatti appeals from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated July 25, 2018. The order denied that defendant’s motion pursuant to CPLR 5015(a)(3) to vacate so much of a prior order of the same court dated March 9, 2017, as granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Gary Gatti, to strike that defendant’s answer, and for an order of reference, and denied that branch of that defendant’s cross motion which was for summary judgment dismissing the complaint insofar as asserted against him for lack of standing. ORDERED that the order dated July 25, 2018, is affirmed, with costs. Contrary to the determination of the Supreme Court, the defendant Gary Gatti (hereinafter the defendant) did not unreasonably delay in moving pursuant to CPLR 5015(a)(3) to vacate the prior order dated March 9, 2017, which, inter alia, granted the plaintiff’s motion for summary judgment on the complaint insofar as asserted against the defendant in this mortgage foreclosure action (cf. Empire State Conglomerates v. Mahbur, 105 AD3d 898, 899). However, we also conclude that the defendant failed to demonstrate, by clear and convincing evidence, that the signature on the endorsement of the note was a forgery. The differences between the signature on the endorsement and the signatures on the exemplars submitted by the defendant are insufficient, standing alone, to demonstrate that the signature at issue is not authentic (see generally Banco Popular N. Am. v. Victory Taxi Mgt., 1 NY3d 381, 384). Thus, the defendant failed to establish that the prior order was procured by fraud, misrepresentation, or other misconduct (see Kondaur Capital Corp. v. Stewart, 166 AD3d 748, 750; HSBC Bank USA, N.A. v. Miller, 121 AD3d 1044, 1046). Accordingly, we affirm the Supreme Court’s order denying the defendant’s motion pursuant to CPLR 5015(a)(3) to vacate so much of the prior order. SCHEINKMAN, P.J., HINDS-RADIX, BARROS and WOOTEN, JJ., concur. By Chambers, J.P.; Roman, Cohen, Christopher, JJ. U.S. BANK NATIONAL ASSOCIATION, ETC., app, v. CARL MONGRU, ET AL., def, G & Q ESTATES CORP., res (Index No. 507014/14) Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (Louis Levithan and John Brigandi of counsel), for appellant. Petroff Amshen, LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Christopher Villanti of counsel), for respondent. In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated July 12, 2017. The order, insofar as appealed from, upon reargument, in effect, vacated a prior determination in an order of the same court dated January 3, 2017, denying those branches of the cross motion of the defendant G & Q Estates Corp. which were pursuant to CPLR 317 to vacate its default in appearing or answering the complaint, and pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred, and thereupon granted those branches of that defendant’s cross motion, and directed dismissal of the complaint. ORDERED that the order dated July 12, 2017, is reversed insofar as appealed from, on the law, with costs, and the determination in the order dated January 3, 2017, denying those branches of the cross motion of the defendant G & Q Estates Corp. which were pursuant to CPLR 317 to vacate its default in appearing or answering the complaint, and pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred is adhered to. In 2007, the defendant Carl Mongru executed a note in the sum of $472,000 in favor of New Century Mortgage Corporation (hereinafter New Century), which was secured by a mortgage on residential property located in Brooklyn (hereinafter the premises). By assignment of mortgage dated January 25, 2008, Mortgage Electronic Registration Systems, Inc., as nominee for New Century, assigned the mortgage to ACT Properties, LLC (hereinafter ACT). Mongru defaulted on his mortgage payments, and on August 7, 2008, ACT commenced an action to foreclose the mortgage (hereinafter the 2008 action). On September 24, 2008, the defendant G & Q Estates Corp. (hereinafter G & Q Estates) acquired the premises from Mongru. On December 10, 2013, the complaint in the 2008 action was dismissed as abandoned pursuant to CPLR 3215(c). Thereafter, the mortgage eventually was assigned to the plaintiff. On July 30, 2014, the plaintiff commenced this action against Mongru and G & Q Estates, among others, to foreclose the mortgage. G & Q Estates failed to timely appear in the action, and the plaintiff moved, among other things, for leave to enter a default judgment and for an order of reference. G & Q Estates cross-moved, inter alia, pursuant to CPLR 317 to vacate its default in appearing or answering the complaint, and pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. G & Q Estates argued, among other things, that the loan was accelerated on June 7, 2007, as set forth in a notice of default dated May 3, 2007, and that, therefore, the statute of limitations expired on June 7, 2013, prior to the commencement of the instant action on July 30, 2014. In an order dated January 3, 2017, the Supreme Court denied both the plaintiff’s motion and G & Q Estates’ cross motion. G & Q Estates thereafter moved for leave to reargue those branches of its cross motion which were to vacate its default and to dismiss the action as barred by the statute of limitations. In an order dated July 12, 2017, the Supreme Court, upon reargument, in effect, vacated the prior determination in the order dated January 3, 2017, denying those branches of G & Q Estates’ cross motion which were to vacate its default, and to dismiss the action as barred by the statute of limitations, and thereupon granted those branches of the cross motion, and directed dismissal of the complaint. The plaintiff appeals. An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]; see generally Milone v. US Bank N.A., 164 AD3d 145, 151). “[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt” (EMC Mtge. Corp. v. Patella, 279 AD2d 604, 605). Contrary to G & Q Estates’ contention, the May 3, 2007, notice of default, which advised that the loan would be accelerated if the default was not cured by June 7, 2007, was “nothing more than a letter discussing acceleration as a possible future event, which [did] not constitute an exercise of the mortgage’s optional acceleration clause” (21st Mtge. Corp. v. Adames, 153 AD3d 474, 475). Accordingly, upon reargument, the Supreme Court should have adhered to its original determination in the order dated January 3, 2017, denying those branches of G & Q Estates’ cross motion which were pursuant to CPLR 317 to vacate its default, and pursuant to CPLR 3211(a)(5) to dismiss the action as barred by the statute of limitations. In view of the foregoing, we do not reach the plaintiff’s remaining contention. CHAMBERS, J.P., ROMAN, COHEN and CHRISTOPHER, JJ., concur. By Scheinkman, P.J.; Mastro, Rivera, Dillon, Balkin, JJ. IN THE MATTER OF FRANCES YETTA RUIZ, ADMITTED AS FRANCES YETTA NEWMAN, AN ATTORNEY AND COUNSELOR-AT-LAW (Index No. 2730315) The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on April 17, 1996, under the name Frances Yetta Newman. By order to show cause dated August 15, 2019, the respondent was directed to show cause why an order should not be made and entered pursuant to 22 NYCRR 1240.13 imposing discipline upon her for the misconduct underlying the discipline imposed by an order of the United States District Court for the Northern District of New York dated April 2, 2019, by filing an affidavit in accordance with 22 NYCRR 1240.13(b) with the Clerk of this Court, with proof of service upon the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, on or before October 7, 2019. Diana Maxfield Kearse, Brooklyn, NY (Thomas J. Murphy of counsel), for Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts. Scalise & Hamilton P.C., Scarsdale, NY (Deborah A. Scalise of counsel), for respondent. PER CURIAM. By order dated April 2, 2019, the United States District Court for the Northern District of New York (hereinafter the District Court) ordered that the respondent’s name be stricken from the roll of attorneys of the District Court. The action taken by the District Court stemmed from the respondent’s conduct while representing a debtor in a chapter 7 bankruptcy proceeding entitled In re Espinal, Case No. 18-30654, before the United States Bankruptcy Court for the Northern District of New York (hereinafter the Bankruptcy Court). The Bankruptcy Court Proceedings By order dated November 15, 2018, the Honorable Margaret Cangilos-Ruiz, Chief Judge of the Bankruptcy Court, imposed sanctions against the respondent in the sum of $1,000 for her conduct in representing the debtor in In re Espinal and restricted the respondent’s right to practice before the Bankruptcy Court. As reflected in that order, the United States Trustee had made a motion for review of the respondent’s services, fees, and conduct as the debtor’s attorney. Although duly served with the motion, the respondent did not file a response. The respondent also failed to appear at the hearing on the motion on September 6, 2018. Based on the evidence produced at the hearing, the Bankruptcy Court made preliminary findings that the respondent had violated several Rules of Professional Conduct (22 NYCRR 1200.0) while representing the debtor and set a further hearing to provide the respondent with an opportunity to offer a response. By order to show cause dated September 11, 2018, the Bankruptcy Court directed the respondent to show cause why (1) monetary sanctions should not be imposed against her based upon two violations of Federal Rules of Bankruptcy Procedure rule 9011, (2) she should not be restricted from further practice before the Bankruptcy Court, and (3) her conduct should not be referred to Chief Judge Glenn T. Suddaby of the District Court for consideration of whether the respondent should be barred from further practice before the District Court. Further, the respondent was directed to produce, by September 25, 2018, certain documents to the Office of the United States Trustee, and was noticed of a hearing to be held on October 11, 2018. Although duly served with the order to show cause, the respondent did not appear at the hearing or otherwise respond, and did not provide the United States Trustee with the documents she was directed to produce by the Bankruptcy Court. As reflected in the November 15, 2018 order, the Bankruptcy Court inferred from the respondent’s failure to appear or respond that she had no defense or evidence to dispute the previous findings and that there were no extenuating circumstances to excuse her behavior. Accordingly, the court concluded that the respondent had violated rules 1.1, 1.3, 1.4(a)(1)(i), 1.4(a)(3), 1.4(a)(4), 3.2, 3.3, 4.1, 5.3(b), and 8.4 of the Rules of Professional Conduct (22 NYCRR 1200.0). In deciding whether to impose sanctions, the Bankruptcy Court found that the respondent falsely represented that the debtor had verified the facts contained in the petition, notwithstanding that the debtor had never reviewed the petition or schedules prior to filing. Additionally, the court found that the respondent made a false statement on a form filed pursuant to 11 USC 329 as to the amount of compensation she was paid in connection with the case. The court concluded that the misrepresentations made by the respondent to the court were not inadvertent, but made with intent and with full knowledge of their falsity, driven solely by her self-interest and convenience. Under these circumstances, sanctions in the sum of $1,000 were imposed against the respondent, and her right to practice before the Bankruptcy Court was restricted. Additionally, the matter was referred to Chief Judge Suddaby of the District Court for consideration of whether the respondent should be barred from further practice before that court. The District Court Proceedings By order to show cause dated February 11, 2019, Chief Judge Suddaby of the District Court agreed with the findings made by the Bankruptcy Court that the respondent had violated various Rules of Professional Conduct (22 NYCRR 1200.0) and directed the respondent to show cause why her name should not be stricken from the roll of attorneys of the District Court. When the respondent failed to answer the order to show cause, the District Court issued an order dated April 2, 2019, striking the respondent’s name from the roll of attorneys of the District Court. Thereafter, the respondent retained counsel and moved, inter alia, for relief from the District Court’s order dated April 2, 2019 (hereinafter the District Court motion). Specifically, the respondent sought to appear in the District Court to explain her failure to respond to the orders to show cause issued by that court and the Bankruptcy Court, to explain the underlying circumstances giving rise to the Bankruptcy Court sanctions, and to request relief from the sanction of disbarment. In declarations submitted in support of the District Court motion, the respondent and her counsel conceded that the respondent did not respond to notices in the Espinal matter after she was substituted out as counsel for the debtor, despite contacts via telephone and other correspondence that required her to do so. Nevertheless, the respondent stated that she never engaged in any intentional or venal misconduct. She further asserted that she was unaware of the Bankruptcy Court’s sanctions, and the resulting District Court proceedings, until receiving a telephone call from a clerk of the Bankruptcy Court on May 28, 2019, and was not aware of the District Court’s order of disbarment until receiving a letter dated July 17, 2019, from the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts. The respondent attributed her ignorance of the proceedings to the failures of a former employee whose duties included answering the telephone, sorting incoming mail, reviewing and responding to the general office emails, contacting clients for documents and payments, and helping prepare and file bankruptcy petitions. The respondent also cited a change of her law firm’s email address and the failure to forward emails from the former address to the new address, her assumption that further appearances related to the Espinal matter were unnecessary once a notice of a substitution of counsel was filed and fees were refunded to the debtor, and a defective office procedure in which mail relating to closed matters was filed in the closed file and not brought to the respondent’s attention. In further support of the District Court motion, the respondent submitted exhibits establishing that her former employee filed the petition in the Espinal matter prior to receiving a signed copy thereof from the debtor. The respondent also submitted email communications purportedly demonstrating that she was unaware of the improper filing and had not instructed her employee to make the filing. Finally, in mitigation, the respondent noted that upon learning of her default in the Bankruptcy Court, she immediately took action by contacting the United States Trustee and appearing before the Bankruptcy Court to apologize for what happened. She also accepted the Bankruptcy Court’s sanction and paid the fine imposed. The respondent also implemented changes in her office procedures to prevent future law office failures. The respondent noted that she has been active in providing legal support to her community, much of which is Spanish-speaking and had difficulty comprehending the legal system. In a decision and order dated March 3, 2020, the District Court denied the motion, noting, among other things, that the respondent failed to establish that her failure to respond to the Bankruptcy Court’s order to show cause was the result of excusable neglect (see Fed Rules Civ Pro rule 60[b][1]), failed to offer an explanation for why she waited approximately three months after receiving notification of her disbarment to file the motion, and failed to submit a memorandum in support of the motion as required by the District Court’s Local Rule 7.1(a)(1). This Court’s Order to Show Cause By order to show cause dated August 15, 2019, this Court directed the respondent to show cause why an order should not be made and entered pursuant to 22 NYCRR 1240.13 imposing reciprocal discipline upon her for the above-described misconduct. In response, the respondent asserted that the imposition of reciprocal discipline would be unjust unless this matter was held in abeyance and/or stayed until such time as a determination was made on the then-pending District Court motion. The respondent referred this Court to the filings in support of the District Court motion and the record of those proceedings, which, she maintained, demonstrated that her defaults in the Bankruptcy and District Courts were excusable, that she did not engage in intentional or venal conduct, and that she is remorseful and has made good-faith efforts to rectify the consequences of her mistakes. By letter dated March 9, 2020, the respondent’s counsel notified this Court of the District Court’s decision and order dated March 3, 2020, and the respondent’s intent to apply for reinstatement in the District Court as soon as she was eligible to do so, on April 3, 2020. The respondent’s counsel further requested that this matter continue to be held in abeyance and/or stayed until the District Court rendered a decision as to the respondent’s reinstatement. Alternatively, the respondent’s counsel requested that the respondent be allowed to supplement her prior submissions to further address the appropriate sanction to be imposed based upon her conduct and mitigating factors. The Grievance Committee takes no position with respect to the measure of discipline to be imposed. Findings and Conclusions of Law The respondent’s assertion that the imposition of reciprocal discipline would be unjust because discipline would be premature without a final determination of the District Court motion is now academic in light of that court’s decision and order dated March 3, 2020. Moreover, there is no need to supplement the respondent’s filings in response to this Court’s order to show cause, as the record of the proceedings before the Bankruptcy and District Courts is sufficient to enable this Court to make a determination. Accordingly, there is no obstacle to the imposition of reciprocal discipline. Under the totality of the circumstances, we conclude that a suspension from the practice of law for a period of six months is warranted. SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur. ORDERED that pursuant to 22 NYCRR 1240.13, the respondent, Frances Yetta Ruiz, admitted as Frances Yetta Newman, is suspended from the practice of law for a period of six months, commencing July 3, 2020, and continuing until further order of this Court. The respondent shall not apply for reinstatement earlier than December 4, 2020. In such application (see 22 NYCRR 691.11, 1240.16), the respondent shall furnish satisfactory proof that during the period of suspension she (1) refrained from practicing or attempting to practice law, (2) fully complied with this opinion and order and with the terms and provisions of the written rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15), and (3) otherwise properly conducted herself; and it is further, ORDERED that during the period of suspension and until further order of this Court, the respondent, Frances Yetta Ruiz, admitted as Frances Yetta Newman, shall comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); and it is further, ORDERED that pursuant to Judiciary Law 90, during the period of suspension and until further order of this Court, the respondent, Frances Yetta Ruiz, admitted as Frances Yetta Newman, shall desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding herself out in any way as an attorney and counselor-at-law; and it is further, ORDERED that if the respondent, Frances Yetta Ruiz, admitted as Frances Yetta Newman, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency, and the respondent shall certify to the same in her affidavit of compliance pursuant to 22 NYCRR 1240.15(f). By Scheinkman, P.J.; Mastro, Rivera, Dillon, Balkin, JJ. IN THE MATTER OF DANIEL CHAN, A SUSPENDED ATTORNEY. GRIEVANCE COMMITTEE FOR THE SECOND, ELEVENTH, AND THIRTEENTH JUDICIAL DISTRICTS, pet; DANIEL CHAN, res (Index No. 1877638) DISCIPLINARY PROCEEDING instituted by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the First Judicial Department on June 20, 1983. By opinion and order of this Court dated May 27, 2015, in a prior separate disciplinary proceeding under Appellate Division Docket No. 2013-11099, the respondent was suspended from the practice of law for two years, effective June 26, 2015, based on four charges of professional misconduct (see Matter of Chan, 130 AD3d 60). Diana Maxfield Kearse, Brooklyn, NY (Thomas J. Murphy of counsel), for petitioner. PER CURIAM. On October 18, 2019, the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts commenced a disciplinary proceeding pursuant to 22 NYCRR 1240.8(a) against the respondent by filing a notice of petition dated October 16, 2019, and a verified petition dated October 15, 2019, and personally serving the same on the respondent on October 17, 2019. The notice of petition directed that the respondent file an original answer to the verified petition with the Court within 20 days of his receipt thereof, and serve a copy of the same with the Grievance Committee. The verified petition contains two charges of professional misconduct, alleging that the respondent practiced law during his suspension. To date, the respondent has neither served an answer to the verified petition, nor requested additional time in which to do so. The Grievance Committee now moves to adjudicate the respondent in default based on his failure to answer the petition, and to deem the charges established. The instant motion was served on the respondent on January 21, 2020. To date, the respondent has neither answered nor requested additional time in which to do so. Accordingly, the Grievance Committee’s motion to adjudicate the respondent in default and to deem the charges established is granted, and, effective immediately, the respondent is disbarred upon his default, and his name is stricken from the roll of attorneys and counselors-at-law. SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur. ORDERED that the Grievance Committee’s motion is granted; and it is further, ORDERED that, pursuant to Judiciary Law 90, effective immediately, the respondent, Daniel Chan, is disbarred and his name is stricken from the roll of attorneys and counselors-at-law; and it is further, ORDERED that the respondent, Daniel Chan, shall continue to comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); and it is further, ORDERED that pursuant to Judiciary Law 90, the respondent, Daniel Chan, is commanded to continue to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further, ORDERED that if the respondent, Daniel Chan, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 1240.15(f). By Scheinkman, P.J.; Mastro, Rivera, Dillon, Leventhal, JJ. IN THE MATTER OF STEWART LEE GITLER, AN ATTORNEY AND COUNSELOR-AT-LAW (Index No. 1927169) The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on April 25, 1984. By order to show cause dated September 24, 2019, this Court directed the respondent to show cause why an order should not be made and entered pursuant to 22 NYCRR 1240.13 imposing discipline upon him for the misconduct underlying the discipline imposed, inter alia, by an order of the Virginia State Bar Disciplinary Board entered May 13, 2019. Gary L. Casella, White Plains, NY (Glenn E. Simpson of counsel), for Grievance Committee for the Ninth Judicial District. PER CURIAM. By an “Agreed Disposition Memorandum Order” of the Virginia State Bar Disciplinary Board entered May 13, 2019, the respondent was suspended from the practice of law in Virginia for 90 days, effective May 8, 2019. Virginia Proceedings The underlying facts of the disciplinary proceedings in Virginia are set forth in an “Agreed Disposition” entered into between the Virginia State Bar, by Elizabeth K. Shoenfeld, Assistant State Bar Counsel, and the respondent, who was represented by counsel. The parties stipulated to the facts hereinafter discussed. On October 7, 2015, AMDC Holding, LLC (hereinafter AMDC), filed a patent application for a helix tool locking system with the United States Patent and Trademark Office. At the time, AMDC was represented by an attorney other than the respondent. In 2016, a representative of AMDC (hereinafter the client) sought the respondent’s assistance with obtaining appropriate patent protection. In order to receive international protection for this patent while maintaining the United States priority date, the client had to file an international application, or Patent Cooperation Treaty (hereinafter PCT) application, by October 7, 2016. Although the respondent attempted to contact the client prior to the deadline, the client did not notify the respondent that he wanted to file the PCT application until after the October 7, 2016, deadline. The PCT application was filed on October 13, 2016. Although the PCT application was filed six days late, the PCT division provides a mechanism by which an applicant can restore the priority date by paying a fee and asserting that the late filing was unintentional. The respondent submitted a request for restoration of the right to claim the United States priority date, which the PCT division granted. Within eighteen months after filing the PCT application, the application had to be filed with the European Patent Office (hereinafter EPO). The EPO filing was completed on a timely basis. Jurgen Kritzenberger, the respondent’s European associate, advised the respondent to submit a letter to the EPO to explain why the PCT application was filed late. On April 24, 2018, the respondent submitted a Request for Restoration of Priority Date to Kritzenberger to file with the EPO. To explain the late filing, the respondent said that the filing was late because of a “singular mistake of the Attorney of record.” He said that the mistake was “inexplicable” because he “remember[ed] receiving instructions to file the PCT International application before the deadline.” These assertions were untrue because the client did not instruct the respondent to file the PCT application until after the deadline had passed. On July 26, 2018, the EPO responded to the respondent’s April 24, 2018, request. The EPO requested that, within two months, the respondent provide evidence of the monitoring system he has in place to avoid missing deadlines. On September 21, 2018, the respondent prepared a letter to the EPO, purportedly from his firm’s then office manager and docket clerk, Jennifer Kreamer. In that letter, the respondent wrote that the client had left timely instructions to file the PCT application in the respondent’s voicemail and that the respondent had not received it, despite due care. These statements were untrue, because the client did not instruct the respondent to file the PCT application until after the deadline. The respondent forged Kreamer’s signature on the letter and then notarized the forged signature in his capacity as a notary public. By notarizing the signature, the respondent affirmed that Kreamer had sworn to its contents and signed it in the respondent’s presence. The respondent sent the letter to Kritzenberger; however, it was never filed because Kritzenberger said edits were needed. On September 24, 2018, the respondent prepared a second letter to the EPO, also purportedly from Kreamer. The second letter provided more details regarding Kreamer’s actions regarding the PCT application, but like the first letter, the second letter contained misstatements of fact. The respondent forged Kreamer’s signature to the second letter and then notarized the forged signature. The respondent sent the second letter to Kritzenberg, who then filed it with the EPO. Kreamer subsequently learned of the letters. She would not have signed the letters because they contained material misrepresentations. She met with the respondent’s law partners, who, together with Kreamer, confronted the respondent. The respondent admitted what he had done and, of his own accord, withdrew the second letter and his request for restoration of priority date. The client was advised of the withdrawal and the reason for the withdrawal. The respondent represented to the Virginia State Bar that the client was not harmed by the withdrawal, and that the respondent did not bill the client for the work performed in connection thereof. The parties agreed that the conduct constituted misconduct in violation of Rule 8.4 of the Virginia Rules of Professional Conduct, and agreed that a 90-day suspension was the appropriate sanction. Order to Show Cause By order to show cause dated September 24, 2019, this Court directed the respondent to show cause why an order should not be made and entered pursuant to 22 NYCRR 1240.13 imposing discipline upon him for the misconduct underlying the discipline imposed, inter alia, by the order of the Virginia State Bar Disciplinary Board entered May 13, 2019, by filing an affidavit in accordance with 22 NYCRR 1240.13(b) with the Clerk of the Court on or before November 15, 2019. Although a copy of the order to show cause was served on the respondent on September 30, 2019, the respondent has not responded or requested additional time in which to do so. However, the Grievance Committee for the Ninth Judicial District has advised the Court that the respondent, in a telephone conversation that occurred prior to service of the order to show cause, indicated that he did not oppose reciprocal discipline, and that the respondent subsequently requested that any discipline imposed by New York be imposed nunc pro tunc to May 8, 2019. In addition, he communicated to the Grievance Committee that he had served the 90-day suspension and had been reinstated in Virginia. Findings and Conclusion Based on the foregoing, we find that the imposition of reciprocal discipline is warranted, and conclude that a suspension from the practice of law for six months is appropriate. However, under the circumstances of this case, including the fact that this matter comes to the Court pursuant to 22 NYCRR 1240.13, that the initial mistake originated with the client, and that the client ultimately was not harmed by the respondent’s misrepresentations, we find that nunc pro tunc relief is appropriate. SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and LEVENTHAL, JJ., concur. ORDERED that pursuant to 22 NYCRR 1240.13, the respondent, Stewart Lee Gitler, is suspended from the practice of law for six months, effective May 8, 2019, and continuing until further order of this Court. The respondent may apply for reinstatement immediately. In such application (see 22 NYCRR 691.11, 1240.16), the respondent shall furnish satisfactory proof that during the period of suspension he (1) refrained from practicing or attempting to practice law, (2) fully complied with this opinion and order and with the terms and provisions of the written rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15), and (3) otherwise properly conducted himself; and it is further, ORDERED that during the period of suspension and until further order of this Court, the respondent, Stewart Lee Gitler, shall comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); and it is further, ORDERED that pursuant to Judiciary Law 90, during the period of suspension and until further order of the Court, the respondent, Stewart Lee Gitler, shall desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further, ORDERED that if the respondent, Stewart Lee Gitler, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency, and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 1240.15(f). By Scheinkman, P.J.; Mastro, Rivera, Dillon, Lasalle, JJ. IN THE MATTER OF ROBERT L. RIMBERG, A SUSPENDED ATTORNEY. GRIEVANCE COMMITTEE FOR THE SECOND, ELEVENTH, AND THIRTEENTH JUDICIAL DISTRICTS, pet; ROBERT L. RIMBERG, res (Index No. 2131357) The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the First Judicial Department on May 4, 1987. By decision and order on motion dated October 19, 2017, the respondent was immediately suspended from the practice of law pursuant to Judiciary Law 90(4)(f) based on his conviction of a serious crime, and was directed to promptly advise this Court upon being sentenced. On December 7, 2018, the respondent advised this Court of his sentence. By order to show cause dated February 14, 2019, this Court directed the respondent to show cause pursuant to 22 NYCRR 1240.12(c)(2)(i) why a final order of suspension, censure, or disbarment should not be made based on his conviction of a serious crime. By decision and order on application dated May 17, 2019, the matter was referred, pursuant to 22 NYCRR 1240.12(c)(2)(iii), to Roger Bennet Adler, as Special Referee, to hear and report. Diana Maxfield Kearse, Brooklyn, NY (Sasha N. Holguin of counsel), for petitioner. Michael S. Ross, New York, NY, for respondent. PER CURIAM On January 5, 2017, in the United States District Court for the Southern District of New York, before U.S. District Judge John G. Koeltl, the respondent was convicted, upon a plea of guilty, of operating an unlicensed money transmitting business, in violation of 18 USC 1960(a), a federal felony. On October 20, 2017, the respondent was sentenced to probation for a period of one year, and was directed to perform 250 hours of community service and pay a $25,000 fine. While the initial indictment charged the respondent with money laundering, the superseding information charged the respondent with a lesser offense, to wit: “From at least in or about 2010 through in or about 2011, in the Southern District of New York and elsewhere, Robert Rimberg, the defendant, and others known and unknown, unlawfully, willfully, and knowingly did conduct, control, manage, supervise, direct, and own all and part of an unlicensed money-transmitting business affecting interstate and foreign commerce, in violation of Title 18, United States Code, Section 1960.” In his plea allocution, the respondent acknowledged the following: “In or about December 2010, I did operate an unlicensed money-transmitting business in Manhattan which was established to affect more than one interstate wire transmission that was not registered under Section 5330 of Title [31] within the required 180 days.” The facts disclosed at a mitigation hearing showed the following: in the fall of 2010, the respondent was introduced to a business investor from South America who wished to invest $1 million cash for the production of a movie. The goal was to use the $1 million to leverage an additional $5 million from lenders to be used for the marketing of the movie. The respondent was assured that the money was “clean.” The idea was for the $1 million cash to be delivered to the respondent’s offices, and for the money to be deposited into a client’s account, and then wired to different designated accounts. The respondent testified that he “didn’t feel good about it,” but agreed and went ahead with the arrangement. For the respondent’s role in the transaction, he was paid a $25,000 fee. Several years later, the respondent learned that the money was “drug money.” The respondent was initially charged with money laundering; however, upon acknowledgment by the government that the respondent had no knowledge that the money was linked to narcotics, the respondent pleaded guilty to a lesser offense. Report of the Special Referee Following the mitigation hearing, the Special Referee found that the respondent acted out of greed. However, he noted, in mitigation, that the respondent testified credibly, that he accepted responsibility for his actions, that his conduct was aberrational, that he was genuinely remorseful, that he had an unblemished disciplinary history, and that he was a well-respected legal practitioner. Sanction The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts moves to confirm the report of the Special Referee. In response to the motion, the respondent contends that, in view of the mitigation in this case, the sanction should be a suspension of two years nunc pro tunc to October 19, 2017, the date that he was immediately suspended from the practice of law. In addition to the mitigating factors noted above by the Special Referee, the respondent asks this Court to consider the fact that no client was harmed, that he has already paid a high price professionally for his actions, that he is a devoted family man, and that he has engaged in many volunteer and charitable activities in his community. Notwithstanding the aforementioned mitigation, we find that the respondent should have known that the money was from an illegal source because, as the judge remarked at sentencing, “people usually don’t walk into an office with a million dollars in cash” and ask that it be converted into another form. The respondent should have been on notice that this was not a legitimate transaction. The respondent acknowledged that something was not right and that he thought he was breaking some law somewhere, but decided to participate anyway. While no client was harmed, the respondent acted recklessly and was motivated by greed. Under the totality of the circumstances, we conclude that the respondent’s criminal conduct warrants a suspension from the practice of law for a period of three years, with credit for the time elapsed under the decision and order of this Court dated October 19, 2017. SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and LASALLE, JJ., concur. ORDERED that the Grievance Committee’s motion to confirm the report of the Special Referee is granted; and it is further, ORDERED that the respondent, Robert L. Rimberg, is suspended from the practice of law for a period of three years, with credit for the time elapsed under the decision and order of this Court dated October 19, 2017, and continuing until further order of this Court. The respondent may immediately apply for reinstatement. In such application (see 22 NYCRR 691.11, 1240.16), the respondent shall furnish satisfactory proof that during the period of suspension he (1) refrained from practicing or attempting to practice law, (2) fully complied with this opinion and order and with the terms and provisions of the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15), (3) complied with the applicable continuing legal education requirements of 22 NYCRR 691.11, and (4) otherwise properly conducted himself; and it is further, ORDERED that the respondent, Robert L. Rimberg, shall continue to comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); and it is further, ORDERED that pursuant to Judiciary Law 90, during the period of suspension and until the further order of this Court, the respondent, Robert L. Rimberg, shall continue to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further, ORDERED that if the respondent, Robert L. Rimberg, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 1240.15(f). By Rivera,J.P.; Dillon, Miller, Barros, JJ. IN THE MATTER OF NEW BRUNSWICK THEOLOGICAL SEMINARY, res, v. VICTORIA ANNE VAN DYKE, app (Index No. 600869/18) APPEAL by Victoria Anne Van Dyke, in a proceeding pursuant to CPLR article 75 to confirm an arbitration award dated January 12, 2018, from a judgment of the Supreme Court (Elizabeth H. Emerson, J.), dated September 20, 2018, and entered in Suffolk County. The judgment, upon an order of the same court dated August 13, 2018, granting the petition to confirm the arbitration award and denying Victoria Anne Van Dyke’s cross motion to vacate the arbitration award and to dismiss the petition, is in favor of the petitioner and against Victoria Anne Van Dyke in the principal sum of $3,229,097. La Reddola, Lester & Associates, LLP, Garden City, NY (Steven M. Lester of counsel), for appellant. McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, NY (Robert M. Van De Veire and Richard S. Mills of counsel), for respondent. MILLER, J. The appellant in this case was a registered broker with the Financial Industry Regulatory Authority (hereinafter FINRA). She contends that her constitutional right to procedural due process was violated when she failed to receive actual notice of an arbitration that had been commenced against her by one of her former clients. In analyzing the issues implicated by the appellant’s claim, the parties have revealed a deep misunderstanding of the interplay between the constitutional rights to due process and freedom of contract, and the somewhat thorny issues that may arise when the parties have agreed to arbitrate their disputes in a nonjudicial setting. Given the parties’ confusion and the relatively few writings devoted to this issue, we deem it appropriate to set forth some guidance on this topic in an effort to promote certainty and predictability in this important area of the law. For the reasons that follow, we affirm the judgment appealed from. The petitioner commenced this proceeding pursuant to CPLR article 75 to confirm an arbitration award that it obtained against the appellant, who did not appear for the arbitration. As relevant here, the appellant cross-moved to vacate the award and to dismiss the petition on the ground that the procedure used for service of the notice of arbitration deprived her of her right to due process. In an order dated August 13, 2018, the Supreme Court granted the petition and denied the cross motion. A judgment dated September 20, 2018, was thereafter entered in favor of the petitioner and against the appellant in the principal sum of $3,229,097. The appellant appeals from the judgment. We affirm. “[A]rbitration is a creature of contract” (Matter of Siegel [Lewis], 40 NY2d 687, 688), and “is a favored method of dispute resolution in New York” (Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 NY2d 88, 93). Through arbitration, “[p]arties, by agreement, may substitute a different method for the adjudication of their disputes than those which would otherwise be available to them in public courts of law” (Matter of Siegel [Lewis], 40 NY2d at 688-689; see CPLR 7501; see also Restatement [Second] of Judgments 84, Comment a). “When they do so, they in effect select their own forum” (Matter of Siegel [Lewis], 40 NY2d at 689). In New York, “[i]t has long been the policy of the law to interfere as little as possible with the freedom of consenting parties to achieve that objective” (id.; see Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 NY2d at 93). In this case, the appellant, as a former registered broker with FINRA, does not dispute that she agreed to arbitrate this matter in accordance with FINRA’s rules. Instead, the appellant contends that the contractual method used to provide notice of the arbitration, as applied in this case, worked to deprive her of her constitutional right to procedural due process. In this regard, the appellant asserts that service by certified mail was not reasonably calculated to place her on notice of the arbitration because the petitioner knew that she could be contacted by email and knew or should have known that she spent long periods of time away from her New York residences. “[S]ervice of processimplicates [the] due process requirements of notice and opportunity to be heard” (Keane v. Kamin, 94 NY2d 263, 265). “Notice of a proceeding is, of course, a fundamental component of a court’s proper exercise of personal jurisdiction over a party” (John Galliano, S.A. v. Stallion, Inc., 15 NY3d 75, 80). It is within this context, that it has been generally observed that “[d]ue process does not require actual receipt of notice before a person’s liberty or property interests may be adjudicated; it is sufficient that the means selected for providing notice was ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections’” (Matter of Beckman v. Greentree Sec., 87 NY2d 566, 570, quoting Mullane v. Central Hanover Bank & Trust Co., 339 US 306, 314). “Ordinarily a court can acquire jurisdiction of the person of a defendant only by service of process within the jurisdiction of the court; but that rule does not apply where the defendant ‘has agreed in advance to accept, or does in fact accept, some other form of service as sufficient’” (Pohlers v. Exeter Mfg. Co., 293 NY 274, 279, quoting Wilson v. Seligman, 144 US 41, 44). “This consent may be given either before or after [an] action has been brought” (Gilbert v. Burnstine, 255 NY 348, 355 [internal quotation marks omitted]). “To be effective, the consent must be given by a person who is under no legal incapacity, and jurisdiction must be exercised in strict conformity with the terms of the consent” (Restatement [Second] of Conflict of Laws 32). Under those circumstances, it is a defendant’s consent, as opposed to a defendant’s relationship with the territorial jurisdiction, “which imparts power” (Gilbert v. Burnstine, 255 NY at 355; see Matter of Bauer [Motor Veh. Acc. Indem. Corp.], 31 AD2d 239, 241; National Equip. Rental v. Dec-Wood Corp., 51 Misc 2d 999, 1000 [App Term, 2d Dept]; see also Restatement [Second] of Conflict of Laws 27[1][e]; Restatement [Second] of Judgments 5). Similarly, in the context of binding arbitration, it is the parties’ consent which vests the authority in the arbitrator to decide a particular dispute. Accordingly, although the CPLR provides that a demand for arbitration, or a notice of intention to arbitrate, must be served “in the same manner as a summons or by registered or certified mail, return receipt requested” (CPLR 7503[c]), New York courts have long recognized that “parties to an arbitration agreement may prescribe a method of service different from that set forth in the CPLR” (Matter of New York Merchant’s Protective Co. v. Mima’s Kitchen, Inc., 114 AD3d 796, 797; see Matter of Andy Floors, Inc. [Tyler Constr. Corp.], 202 AD2d 938, 939). Indeed, “the parties may agree to other methods for service, either by stipulating the manner in the arbitration clause or, more generally, by adopting the arbitration rules of an arbitration agency” (1 Domke on Commercial Arbitration 18:9 [2020]). “Whereparties agree to the manner in which a demand for arbitration can be served, they do not have to comply with the service requirements established by CPLR 7503(c)” (Astoria Equities 2000 LLC v. Halletts A Dev. Co., LLC, 47 Misc 3d 171, 177 [Sup Ct, Queens County]; see Matter of Severin [County of Broome], 89 AD2d 689; Matter of Wappingers Cent. School Dist. v. Wappingers Congress of Teachers, 51 AD2d 766, 767; see generally 1 Domke on Commercial Arbitration 18:9 [2020]). Applying these principles, the Court of Appeals has enforced an arbitration agreement pursuant to which the parties consented to a particular notice procedure as set forth in an English statute (see Gilbert v. Burnstine, 255 NY at 355). In that case, the Court of Appeals determined that “[the] [d]efendants’ agreement without reservation to arbitrate in London according to the English statute necessarily implied a submission to the procedure whereby that law is there enforced” (id. at 354). “Otherwise the inference must be drawn that they never intended to abide by their pledge” (id.). The Court of Appeals stated that “[c]ontracts made by mature [individuals] who are not wards of the court should, in the absence of potent objection, be enforced” (id.). The Court of Appeals held that “under [New York] arbitration law” the agreement to arbitrate in accordance with the procedure set forth in the English statute “ha[d] become irrevocable in the sense that one of the parties without the consent of the other [could not] deprive it of its enforcibility” (id.). Where parties to an arbitration agreement have consented to an alternative method of service, “[t]he method of service by which parties have agreed to be bound must be complied with according to the exact terms thereof in order that the requirements of due process be satisfied” (Matter of Republique Francaise [Cellosilk Mfg. Co.], 309 NY 269, 279; cf. Restatement [Second] of Conflict of Laws 32). Unless otherwise provided for in the agreement to arbitrate, where the parties to an arbitration agreement consent to a particular arbitration procedure, “[t]he resolution of procedural questions, including whether the invocation of arbitration was proper or timely, commonly referred to as procedural arbitrability, is generally left to the arbitrator” (21 Richard A. Lord, Williston on Contracts 57:25 [4th ed 2019]; see New York Merchants Protective Co., Inc. v. Backyard Party Tent Rental, Inc., 34 Misc 3d 55, 57 [App Term, 2d Dept, 9th & 10th Jud Dists]). Unless the parties agree otherwise, “questions as to whether there has been compliance with such procedural regulations and, if not, what the consequences shall be, are for resolution by the arbitrator as incidental to the conduct of the arbitration proceeding” (Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 8; see Matter of United Nations Dev. Corp. v. Norkin Plumbing Co., 45 NY2d 358, 363-364). Under such circumstances, judicial review of an arbitrator’s determination is limited in the same way and for the same reasons that judicial review of any other aspect of an arbitrator’s determination is limited (see CPLR 7511[b], [c]). In this case, the appellant does not dispute that she agreed to arbitrate this dispute pursuant to FINRA’s rules, which, as relevant here, set forth a mailing procedure by which service was to be effected (see generally Harris v. Wells Fargo Clearing Servs., LLC, 2018 WL 6523384, 2018 US Dist LEXIS 202576 [SD NY, No. 18 Civ 4625 (GBD)]). The arbitrator in this case determined that the appellant was properly served in accordance with FINRA’s rules. The appellant does not contend that FINRA’s rules precluded the arbitrator from deciding this issue (cf. CPLR 7511[b][1][iii]), or contend that service was effected in violation of those rules (cf. Matter of Republique Francaise [Cellosilk Mfg. Co.], 309 NY at 275-276). In short, the appellant does not contend that the agreement to arbitrate was breached in any way. Rather, she asks this Court to find that FINRA’s notice of arbitration procedure, to which she consented and which was concededly followed, violated her right to due process. The appellant asks this Court, in effect, to refuse enforcement of the contractual notice provision unless it would have, in the absence of the parties’ consent to the arbitral forum, formed an adequate and independent basis for a court to exercise personal jurisdiction over her. It is unnecessary to analyze this hypothetical scenario, however, as the arbitrator’s power was derived from the appellant’s consent, and the appellant’s argument misapprehends the basic role of a court in enforcing a contract, regardless of whether it implicates arbitration or not. Freedom of contract is a “deeply rooted” public policy of this state (New England Mut. Life Ins. Co. v. Caruso, 73 NY2d 74, 81), and a right of constitutional dimension (see US Const, art I, 10[1]; see 159 MP Corp. v. Redbridge Bedford, LLC, 33 NY3d 353, 359). “Generally, parties may contract as they wish and the courts will enforce their agreements without passing on the substance of them” (New England Mut. Life Ins. Co. v. Caruso, 73 NY2d at 81). “Of course, the public policy favoring freedom of contract does not mandate that the language of an agreement be enforced in all circumstances” (159 MP Corp. v. Redbridge Bedford, LLC, 33 NY3d at 360). “Contractual provisions entered unknowingly or under duress or coercion may not be enforced” (id.; see generally Restatement [Second] of Contracts 151, 159, 164, 174, 175). The doctrine of unconscionability also protects against “unjust enforcement of onerous contractual terms which one party is able to impose [upon] the other because of a significant disparity in bargaining power” (Rowe v. Great Atl. & Pac. Tea Co., 46 NY2d 62, 68; see Matter of Frankel v. Citicorp Ins. Servs., Inc., 80 AD3d 280, 288-290). The appellant in this case does not attack the arbitration agreement on any of these grounds. Aside from the defenses relating to the circumstances surrounding the formation of a contract, a party may seek to avoid the consequences of an otherwise valid contract on the ground that it is void against public policy. In this regard, a contractual provision may be rendered unenforceable where “the public policy in favor of freedom of contract is overridden by another weighty and countervailing public policy” (159 MP Corp. v. Redbridge Bedford, LLC, 33 NY3d at 360; see Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 695). “But, because freedom of contract is itself a strong public policy interest in New York, we may void an agreement only after ‘balancing’ the public interests favoring invalidation of a term chosen by the parties against those served by enforcement of the clause and concluding that the interests favoring invalidation are stronger” (159 MP Corp. v. Redbridge Bedford, LLC, 33 NY3d at 360-361, quoting New England Mut. Life Ins. Co. v. Caruso, 73 NY2d at 81; see generally Restatement [Second] of Contracts 178). “Only a limited group of public policy interests has been identified as sufficiently fundamental to outweigh the public policy favoring freedom of contract” (159 MP Corp. v. Redbridge Bedford, LLC, 33 NY3d at 361). “The fact that a contract term may be contrary to a policy reflected in the Constitution, a statute or a judicial decision does not render it unenforceable” (id.), and the mere presence of a public interest “does not erect an inviolable shield to waiver” (Matter of American Broadcasting Cos. v. Roberts, 61 NY2d 244, 249). Indeed, the courts of this State “regularly uphold agreements waiving statutory or constitutional rights” (159 MP Corp. v. Redbridge Bedford, LLC, 33 NY3d at 361; see People v. Thomas, 34 NY3d 1019). In this case, we have little difficulty in concluding that the appellant is bound by the procedure to which she consented. The appellant agreed to receive notice of any dispute requiring arbitration by certified mail sent to an address that she provided to FINRA. The appellant did not dispute that, pursuant to those rules, she was required to maintain and update her mailing address with FINRA for that specific purpose. Although the initial notice of the arbitration that was sent to that address was returned “unclaimed,” the appellant’s decision not to claim mail sent to her designated residence, regardless of her reasons, does not render the contractual provision void against public policy. The appellant was on notice of the method by which she would receive notification and, by agreeing to that method, she was bound to take steps to ensure that such notice would be received. The appellant’s contention that the contractual notice provision, to which she agreed, was inadequate in light of her travel habits, without more, does not justify their invalidation on public policy grounds. “The fact that with the benefit of hindsight, a party believes that it had agreed to an unfavorable contractual term, does not provide courts with authority to rewrite the terms of a contract or to extricate parties from poor bargains” (159 MP Corp. v. Redbridge Bedford, LLC, 160 AD3d 176, 190 [Dillon, J.], affd 33 NY3d 353). The appellant cites no authority to support her contention that public policy prohibits the enforcement of the specific mailing procedure set forth in the arbitration agreement. To the contrary, it has long been recognized that “[i]t is not contrary to natural justice that [an individual] who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he [or she] may not have actual notice of them” (Pennoyer v. Neff, 95 US 714, 735 [internal quotation marks omitted]; see Gilbert v. Burnstine, 255 NY at 355-356). Where, as here, the parties to an arbitration agreement set forth in that agreement the procedure that is to be used to provide notice of arbitration, the contractual notice provision, like the other terms of the arbitration agreement, remains “valid, enforceable and irrevocable save upon such grounds as exist at law or in equity for the revocation of any contract” (Gilbert v. Burnstine, 255 NY at 353; see Matter of Monarch Consulting, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 26 NY3d 659, 665; see also 9 USC 2). Contrary to the appellant’s contention, in this case, there is “no constitutional or other legal impediment” to the enforcement of her consent to this arbitration procedure (Matter of Beckman v. Greentree Sec., 87 NY2d at 571; see Matter of New York Merchant’s Protective Co. v. Mima’s Kitchen, Inc., 114 AD3d at 797; cf. Matter of Harner v. County of Tioga, 5 NY3d 136, 140). Inasmuch as the appellant has failed to demonstrate any basis to vacate the arbitration award (see CPLR 7511[b]), we agree with the Supreme Court’s determinations to grant the petition to confirm it, and to deny the appellant’s cross motion to vacate the award and to dismiss the petition (see CPLR 7510, 7511[e]). Accordingly, the judgment is affirmed. RIVERA, J.P., DILLON and BARROS, JJ., concur. ORDERED that the judgment is affirmed, with costs. By Rivera, J.P.; Austin, Hinds-Radix, Christopher, JJ. PEOPLE OF STATE OF NEW YORK, res, v. LINO RODRIGUEZ, app Paul Skip Laisure, New York, NY (Alice R. B. Cullina of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent. Appeal by the defendant from an order of the Supreme Court, Kings County (Matthew J. D’Emic, J.), dated October 25, 2018, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C. ORDERED that the order is affirmed, without costs or disbursements. On May 7, 2004, after a jury trial, the defendant was convicted of course of sexual conduct against a child in the first degree (Penal Law 130.75[1][b]) and two counts of criminal sexual act in the first degree (Penal Law 130.50[4]). Prior to the defendant’s release from prison, a risk assessment instrument (hereinafter RAI) was prepared pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA). The defendant was assessed a total of 165 points, within the range for a presumptive designation as a level three sex offender. At the SORA hearing, the defendant requested a downward departure from his presumptive risk level and contested 30 points assessed against him on the RAI. Specifically, the defendant challenged the assessment of 15 points under risk factor 11 (history of drug and alcohol abuse). He also contested 5 of the 15 points assessed under risk factor 12 (for being expelled from treatment for disciplinary reasons) and 10 of the 20 points assessed under risk factor 13 (for unsatisfactory conduct while confined, with sexual misconduct). The Supreme Court agreed with the defendant as to risk factor 11, such that no points were assessed by the court, and as to risk factor 13, such that only 10 points were assessed by the court. Still within the range of a presumptive level three designation, the defendant was assessed a total of 140 points. The court then denied the defendant’s request for a downward departure and designated him a level three sex offender. The defendant appeals. While the People concede on appeal that the defendant should have been assessed only 10 points instead of 15 points under risk factor 12, this adjustment only reduces the defendant’s total points to 135, and he remains a presumptive level three sex offender. A defendant seeking a downward departure from the presumptive risk level has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Wyatt, 89 AD3d 112, 128; see People v. Gillotti, 23 NY3d 841, 861; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant’s dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 NY3d at 861; People v. Champagne, 140 AD3d 719, 720). Here, the defendant failed to demonstrate that a downward departure from his presumptive risk level was warranted. The defendant’s score on the Static-99R, which is a risk assessment tool different from New York’s RAI (see People v. Curry, 158 AD3d 52, 60), suggesting a “low” likelihood of reoffense, does not, by itself, constitute a mitigating factor justifying a downward departure from the presumptive risk level (see People v. Santos, 174 AD3d 658, 659). Although advanced age may constitute a basis for a downward departure (see Guidelines at 5; People v. Benoit, 145 AD3d 687, 688; People v. Santiago, 137 AD3d 762, 765), we agree with the Supreme Court’s determination that the defendant’s age of 48 years did not qualify for such consideration or result in an overassessment of the defendant’s risk to public safety. The defendant’s claim of a lower likelihood of reoffense due to his age is belied by his disciplinary record while incarcerated. The support of the defendant’s family was adequately taken into account under the Guidelines (see People v. Adams, 174 AD3d 828; People v. MacCoy, 155 AD3d 897, 898). With respect to the additional factors in favor of a downward departure alleged by the defendant, he failed to prove the existence of these factors by a preponderance of the evidence (see People v. Wyatt, 89 AD3d at 128). Accordingly, we agree with the Supreme Court’s determination denying the defendant’s request for a downward departure from the presumptive risk level and designating him a level three sex offender. RIVERA, J.P., AUSTIN, HINDS-RADIX and CHRISTOPHER, JJ., concur. By Chambers, J.P.; Leventhal, Duffy, Nelson, JJ. THE PEOPLE, ETC., res, v. NOOR HUSSAIN, app (Index No. 2674/11) Lebedin Kofman LLP, New York, NY (Russ Kofman of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and Denise Pavlides of counsel), for respondent. Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew D’Emic, J.), rendered July 9, 2014, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence. ORDERED that the judgment is affirmed. The defendant was charged, inter alia, with murdering his wife on April 3, 2011. At a nonjury trial, the defendant’s attorney described the defendant as a “classic batterer” who “had hit [his wife] during at least 15 or 16 years.” Trial counsel further conceded that “by hitting his wife a number of times in her head and over her body,” the defendant had either recklessly caused her death, or had intentionally caused serious physical injury that resulted in her death. On appeal, the defendant contends that his constitutionally protected autonomy right to assert his innocence of the criminal acts charged (see McCoy v. Louisiana, 584 US ___, 138 S Ct 1500 [2018]; People v. Maynard, 176 AD3d 512, 513) was violated when his trial counsel conceded the defendant’s guilt of manslaughter in the second degree or, in the alternative, manslaughter in the first degree. Since the defendant’s claim “implicates his relationship with his trial attorney and is to be proved, if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10″ (People v. Johnson, 51 NY2d 986, 988), we decline to review it on this direct appeal. Similarly, the defendant’s contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a “mixed claim of ineffective assistance” (People v. Maxwell, 89 AD3d 1108, 1109; see People v. Evans, 16 NY3d 571, 575 n 2). Since the defendant’s claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 AD3d 805, 806; People v. Maxwell, 89 AD3d at 1109). The defendant’s remaining contentions regarding alleged prosecutorial misconduct are unpreserved for appellate review and, in any event, without merit (see People v. Morrow, 143 AD3d 919, 921). CHAMBERS, J.P., LEVENTHAL, DUFFY and BRATHWAITE NELSON, JJ., concur. By Chambers, J.P.; Leventhal, Duffy, Nelson, JJ. IN THE MATTER OF MARGUERITE CAMAIORE, res, v. FRANK FARANCE, app (Index No. F-4307-13/17G) Salvatore C. Adamo, New York, NY, for appellant. Marguerite Camaiore, Astoria, NY, respondent pro se. In a proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Queens County (Joan L. Piccirillo, J.), dated September 10, 2018, and (2) a modified order of commitment of the same court (Dean T. Kusakabe, J.), dated February 14, 2019. The order dated September 10, 2018, denied the father’s objections to amended findings of fact of the same court (Solange N. Grey-Humphreys, S.M.) dated July 18, 2018, and, in effect, confirmed so much of an order of disposition of the same court (Solange N. Grey-Humphreys, S.M.) dated April 23, 2018, made after a hearing, as determined that the father willfully violated a prior order of child support. The modified order of commitment dated February 14, 2019, upon confirmation of the determination that the father willfully violated a prior order of child support, committed the father to the custody of the New York City Department of Correction for a period of six months unless he paid the purge amount of $7,500. ORDERED that the order dated September 10, 2018, is affirmed, without costs or disbursements; and it is further, ORDERED that the appeal from so much of the modified order of commitment as committed the father to the custody of the New York City Department of Correction for a period of six months is dismissed, without costs or disbursements, as the period of incarceration has expired (see Matter of Konig v. Fabrizio, 176 AD3d 1066); and it is further, ORDERED that the modified order of commitment is affirmed insofar as reviewed, without costs or disbursements. The mother, the custodial parent of the parties’ two children, commenced this proceeding alleging that the father was in willful violation of an order of child support dated August 4, 2016, obligating him to pay the sum of $924 per month for the support of the parties’ two children. On April 23, 2018, after a hearing, the Support Magistrate issued findings of fact and an order of disposition, finding that the father was in willful violation of the prior order of child support. The father then filed objections and by order dated June 22, 2018, the Family Court confirmed the willfulness finding but remitted the matter to the Support Magistrate for certain issues, permitting the father to file further objections once again after said remittal. On July 18, 2018, the Support Magistrate issued amended findings of fact. The father filed objections again and by order dated September 10, 2018, the Family Court denied his objections. In a modified order of commitment dated February 14, 2019, the father was committed to the custody of the New York City Department of Correction for a period of six months unless he paid the purge amount of $7,500. The father appeals. We agree with the Family Court’s confirmation of the Support Magistrate’s finding that the father did not satisfy his burden of showing an inability to pay that would defeat the mother’s prima facie case of willful violation (see Matter of Martin v. Claesgens, 165 AD3d 1392; Matter of Schad v. Schad, 158 AD3d 705). The father’s remaining contentions are without merit. CHAMBERS, J.P., LEVENTHAL, DUFFY and BRATHWAITE NELSON, JJ., concur. By Chambers, J.P.; Leventhal, Duffy, Nelson, JJ. IN THE MATTER OF MARGUERITE CAMAIORE, res, v. FRANK FARANCE, app (Index No. F-04307-13/17G, F-04307-13/17H, F-04307-13/17I) Frank Farance, New York, NY, appellant pro se. Marguerite Camaiore, Astoria, NY, respondent pro se. In related proceedings pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Queens County (Joan L. Piccirillo, J.), dated June 22, 2018, (2) an order of the same court also dated June 22, 2018, and (3) an order of the same court dated June 10, 2019. The first order dated June 22, 2018, insofar as appealed from, denied the father’s objections to an order of disposition of the same court (Solange N. Grey-Humphreys, S.M.) dated April 23, 2018, which, after a hearing and upon finding of facts dated April 23, 2018, granted the mother’s violation petition and remitted certain issues to the Support Magistrate. The second order dated June 22, 2018, denied the father’s objections to an order of the same court (Solange N. Grey-Humphreys, S.M.) also dated April 23, 2018, which, after a hearing, denied the father’s petition for a downward modification of his child support obligation. The order dated June 10, 2019, denied the father’s objections to an order of the same court (Solange N. Grey-Humphreys, S.M.) dated April 9, 2019, which, after a hearing, denied the father’s separate petition for a downward modification of his child support obligation. ORDERED that the appeal from so much of the first order dated June 22, 2018, as remitted issues to the Support Magistrate is dismissed, without costs or disbursements; and it is further, ORDERED that the first order dated June 22, 2018, is affirmed insofar as reviewed, without costs or disbursements; and it is further, ORDERED that the second order dated June 22, 2018, and the order dated June 10, 2019, are affirmed, without costs or disbursements. The portion of the first order dated June 22, 2018, that remitted certain matters to the Support Magistrate is not dispositional and, therefore, not appealable as of right (see Matter of Doughtry v. Jacobs, 155 AD3d 947), and we decline to grant leave to appeal from that portion of the order. Contrary to the father’s contentions, the record supports the Support Magistrate’s April 9, 2019, determination, made after a hearing, that the father did not demonstrate a substantial change in circumstances and was thus not entitled to a downward modification of his child support obligation, as set forth in a child support order dated August 4, 2016 (see Matter of Evans v. White, 173 AD3d 864; Matter of Berg v. Berg, 166 AD3d 766). The father’s remaining contentions are without merit. CHAMBERS, J.P., LEVENTHAL, DUFFY and BRATHWAITE NELSON, JJ., concur. By Scheinkman, P.J.; Balkin, Chambers, Wooten, JJ. IN THE MATTER OF RED WING PROPERTIES, INC., app, v. TOWN OF RHINEBECK, ET AL., res (Index No. 194/17) Bond, Schoeneck & King, PLLC, Syracuse, NY (Kevin M. Bernstein and Ryan P. Keleher of counsel), for appellant. Warren S. Replansky, P.C., Rhinebeck, NY, for respondents Town of Rhinebeck and Town of Rhinebeck Town Board, and Grant & Lyons, LLP, Rhinebeck, NY (John F. Lyons and Kimberly A. Garrison of counsel), for respondents Town of Rhinebeck Zoning Enforcement Officer and Town of Rhinebeck Zoning Board of Appeals (one brief filed). In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Town of Rhinebeck Zoning Board of Appeals dated December 21, 2016, confirming a determination of a zoning enforcement officer dated February 25, 2016, denying the petitioner/plaintiff’s application for a determination that it has a vested right to mine its entire parcel of property as a prior nonconforming use, and action, inter alia, for a declaratory judgment, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated July 27, 2017. The order and judgment, insofar as appealed from, denied the petitioner/plaintiff’s motion, in effect, for summary judgment declaring that it has a vested right to mine its entire parcel of property as a prior nonconforming use, denied the petition, and dismissed the proceeding. ORDERED that the order and judgment is modified, on the law, (1) by deleting the provision thereof denying the petitioner/plaintiff’s motion, in effect, for summary judgment declaring that it has a vested right to mine its entire parcel of property as a prior nonconforming use, and substituting therefor a provision granting the motion to the extent of declaring that the petitioner/plaintiff has a vested right to mine 94 acres of its property, and (2) by deleting the provision thereof denying the petition and dismissing the proceeding, and substituting therefor a provision granting the petition to the extent of annulling so much of the determinations dated December 21, 2016, and February 25, 2016, as found that the petitioner/plaintiff does not have a vested right to mine 94 acres of its property as a prior nonconforming use; as so modified, the order and judgment is affirmed insofar as appealed from, with costs to the petitioner/plaintiff payable by the respondents/defendants Town of Rhinebeck, Town of Rhinebeck Town Board, and Town of Rhinebeck Zoning Enforcement Officer, and the matter is remitted to the Supreme Court, Dutchess County, for the entry of an amended judgment, inter alia, declaring that the petitioner/plaintiff has a vested right to mine 94 acres of its property as a prior nonconforming use. The petitioner/plaintiff (hereinafter the petitioner) is the owner of an approximately 241-acre parcel of property in the Town of Rhinebeck. It has operated a sand and gravel mine on the property since 1993. A New York State Department of Environmental Conservation (hereinafter DEC) permit issued in 2005 allowed the petitioner to mine 37.5 acres of the property. In 2008, an application was submitted to the DEC for a permit allowing the petitioner to expand the life of mine area to 141 acres, along with a draft environmental impact statement. On a number of occasions, the DEC requested that additional information and/or studies be submitted to support the application, and the petitioner complied with those requests. One of the studies requested by the DEC was a study of an endangered turtle species on the property. That study spanned the course of six years and cost the petitioner in excess of $125,000. In 2010, a revised draft environmental impact statement was submitted to the DEC, which reduced the scope of the proposed expansion to 124 acres. In February 2015, the petitioner submitted another revised draft environmental impact statement to the DEC, which further reduced the scope of the proposed expansion to 94 acres. In September 2015, while the petitioner’s expansion application to the DEC was still pending, the Town enacted a new zoning law that allowed mining on only those lands in the Town upon which there were existing, DEC-permitted mining operations. The petitioner then submitted an application to the Town’s Zoning Enforcement Officer (hereinafter ZOE) for a determination that it has a vested right to mine on the entirety of the subject property in spite of the new zoning law based on a prior nonconforming use. In a determination dated February 25, 2016, the ZOE denied the petitioner’s application. Upon the petitioner’s appeal, the Town’s Zoning Board of Appeals (hereinafter ZBA) confirmed the ZOE’s determination. The petitioner subsequently commenced this hybrid proceeding pursuant to CPLR article 78, inter alia, to review the ZBA’s determination and action, among other things, for a declaratory judgment, and moved, in effect, for summary judgment declaring that it has a vested right to mine its entire parcel of property as a prior nonconforming use. The Supreme Court denied the motion and the petition, and dismissed the proceeding. The petitioner appeals. “‘[N]onconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance’” (Glacial Aggregates LLC v. Town of Yorkshire, 14 NY3d 127, 135, quoting People v. Miller, 304 NY 105, 107). “‘By its very nature, quarrying involves a unique use of land.[A]s a matter of practicality as well as economic necessity, a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed’” (Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, 13 NY3d 88, 98, quoting Matter of Syracuse Aggregate Corp. v. Weise, 51 NY2d 278, 285). “[W]herethe owner engages in substantial quarrying activities on a distinct parcel of land over a long period of time and these activities clearly manifest an intent to appropriate the entire parcel to the particular business of quarrying, the extent of [the] protection afforded by the nonconforming use will extend to the boundaries of the parcel even though extensive excavation may have been limited to only a portion of the property” (Matter of Syracuse Aggregate Corp. v. Weise, 51 NY2d at 286). Here, on its motion, in effect, for summary judgment, the petitioner demonstrated that it engaged in substantial quarrying activities on a distinct parcel of land over a long period of time. The petitioner also demonstrated that in 2008, it manifested its intention to engage in mining activities throughout its entire parcel by submitting a permit application to the DEC, which permit was necessary in order for any mining activity, or preparatory activity, to proceed. Until the DEC issued a permit, the petitioner could not enlarge its extant mining operation. The petitioner also showed that it was pursuing its application with the DEC as expeditiously as possible. In February, 2015, before the Town enacted the subject ordinance, the petitioner amended its application so as to cover only 94 acres. Consequently, while the petitioner’s original DEC application manifested its intention to mine its entire parcel, its 2015, pre-ordinance amendment, in effect, reflected its intention to utilize only 94 acres. Thus, the petitioner demonstrated that it has a vested right to mine those 94 acres as a prior nonconforming use (see Jones v. Town of Carroll, 15 NY3d 139, 144-146; Glacial Aggregates LLC v. Town of Yorkshire, 14 NY3d at 138; Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, 13 NY3d at 103; Matter of Syracuse Aggregate Corp. v. Weise, 51 NY2d at 286-287). In opposition, the respondents/defendants failed to raise a triable issue of fact. Further, for the same reasons, the petitioner demonstrated that so much of the ZBA’s determination as found that the petitioner does not have a vested right to mine those 94 acres was affected by an error of law, arbitrary, and capricious (see CPLR 7803[3]). Accordingly, the Supreme Court should have granted the petitioner’s motion to the extent of declaring that the petitioner has a vested right to mine 94 acres of its property as a prior nonconforming use, and should have annulled the determinations of the ZOE and the ZBA to the extent that they found otherwise. Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Dutchess County, for the entry of an amended judgment declaring, inter alia, that the petitioner has a vested right to mine 94 acres of its property as a prior nonconforming use (see Lanza v. Wagner, 11 NY2d 317, 334). SCHEINKMAN, P.J., BALKIN, CHAMBERS and WOOTEN, JJ., concur. By Rivera, J.P.; Maltese, Barros, Nelson, Iannacci, JJ. THE PEOPLE, ETC., res, v. VANDY BRANDENBURG, app (Index No. 1090/18) Paul Skip Laisure, New York, NY (Tammy E. Linn of counsel; Chelsea Lopez on the memorandum), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle S. Fenn of counsel; Deanna Russo on the memorandum), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Suzanne J. Melendez, J.), imposed September 11, 2018, upon his plea of guilty, on the ground that the sentence was excessive. ORDERED that the sentence is affirmed. The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur. By Rivera, J.P.; Maltese, Barros, Nelson, Iannacci, JJ. THE PEOPLE, ETC., res, v. ELIAS GARCIA, app (Index No. 2562/18) Paul Skip Laisure, New York, NY (Iskuhi Grigoryev of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce of counsel; Maria Torres on the memorandum), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Matthew D’Emic, J.), imposed January 28, 2019, upon his plea of guilty, on the ground that the sentence was excessive. ORDERED that the sentence is affirmed. The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur. By Rivera, J.P.; Maltese, Barros, Nelson, Iannacci, JJ. THE PEOPLE, ETC., res, v. JABARI JEMMOTT, app (Index No. 2120/17) Janet E. Sabel, New York, NY (Desiree Sheridan of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Alastair Allen on the memorandum), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Cassandra Mullen, J.), imposed February 7, 2018, upon his plea of guilty, on the ground that the sentence was excessive. ORDERED that the sentence is reversed, on the law, and the matter is remitted to Supreme Court, Kings County, for resentencing in accordance herewith. As the People concede, since the Supreme Court did not pronounce the length of the term of probation in open court, the sentence must be reversed and the matter remitted to the Supreme Court, Kings County, for resentencing in accordance with CPL 380.20 (see People v. Lingle, 16 NY3d 621, 634-635; People v. Sparber, 10 NY3d 457, 465; People v. Petrangelo, 159 AD3d 1559, 1560; People v. Guadalupe, 129 AD3d 989). In light of our determination, we need not reach the defendant’s remaining contentions. RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur. By Rivera, J.P.; Maltese, Barros, Nelson, Iannacci, JJ. THE PEOPLE, ETC., res, v. MICHAEL J. LAWRENCE, app (Index No. 1888/16) Janet E. Sabel, New York, NY (Harold V. Ferguson, Jr., of counsel) for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle S. Fenn of counsel; Lorrie A. Zinno on the memorandum), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Leslie Leach, J.), imposed August 27, 2018, upon his plea of guilty, on the ground that the sentence was excessive. ORDERED that the sentence is affirmed. We agree with the defendant that his written waiver of the right to appeal included incorrect statements of the applicable law (see People v. Wilkinson, 176 AD3d 879, 880). However, the Supreme Court’s oral colloquy with the defendant at the plea proceeding was sufficient to remedy the misleading written waiver, and established a knowing, intelligent, and voluntary waiver of the right to appeal under the totality of the circumstances (see People v. Thomas, __ NY3d __, 2019 NY Slip Op 08545, *5-6; People v. Sanders, 25 NY3d 337, 340-341). The defendant’s valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 NY3d 248, 256). RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur. By Rivera, J.P.; Maltese, Barros, Nelson, Iannacci, JJ. THE PEOPLE, ETC., res, v. ANTHONY DUBOSE, app (Index No. 18-00608) Walter J. Storey, Goshen, NY, for appellant. David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Orange County (Craig Stephen Brown, J.), imposed March 7, 2019, upon his plea of guilty, on the ground that the sentence was excessive. ORDERED that the sentence is affirmed. Contrary to the People’s contention, the record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 NY3d 257). The County Court’s colloquy did not ensure that the defendant understood the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty (see People v. Lopez, 6 NY3d 248, 257; People v. Portillo, 178 AD3d 860; People v. Batista, 167 AD3d 69, 76). Also, the court’s colloquy suggested that the appellate rights waived encompassed an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief (see People v. Thomas, __ NY3d __, 2019 NY Slip Op 08545, *8). Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur. By Scheinkman, P.J.; Rivera, Balkin, Iannacci, JJ. IN THE MATTER OF ANTHONY MONTEBELLO, res, v. ANNA MONTEBELLO, app (Index No. V-11368-11) Darla A. Filiberto, Islandia, NY, for appellant. Brian A. Picarello, Islandia, NY, for respondent. Jeanne R. Burton, Central Islip, NY, attorney for the child. In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Heather P.S. James, Ct. Atty. Ref.), dated June 13, 2019. The order, after a hearing, in effect, granted the father’s petition for sole custody of the subject child and awarded parental access to the mother. ORDERED that the order is affirmed, without costs or disbursements. The parties are the parents of one child, born in July 2017. During the first year of the child’s life, the parties and the child lived at the child’s maternal grandmother’s home in Brooklyn. On July 29, 2018, the father moved with the child to the father’s grandparents’ home in Suffolk County. The father filed a petition for sole custody of the child the following day in the Family Court, Suffolk County. Following a hearing, the court awarded the father sole custody of the child and awarded the mother parental access. The mother appeals. “‘The court’s determination with respect to custody depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parties. Given the court’s opportunity to make firsthand assessments of these crucial considerations, we accord great deference to its credibility findings and will not disturb them unless they lack a sound and substantial basis in the record’” (Matter of Lopez v. Prudencio, 179 AD3d 690, 690-691, quoting Matter of Vaysman v. Conroy, 165 AD3d 954, 954-955). “The court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child” (Matter of Scott v. Thompson, 166 AD3d 627, 628 [internal quotation marks omitted]). “In determining an initial petition for child custody, the court must consider, among other things, (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent’s relative fitness, including his or her ability to guide the child, provide for the child’s overall well being, and foster the child’s relationship with the noncustodial parent; and (5) the child’s desires” (id. [internal quotation marks omitted]). Here, we agree with the Family Court’s determination that it is in the child’s best interests for the father to be awarded sole custody (see id.). The court found that the father testified more credibly than the mother and, contrary to the mother’s contention, there is no basis to disturb that finding (see id.). The parties’ testimony supported the court’s finding that the father had demonstrated a stronger emotional bond with the child and a deeper connection to the child’s daily activities in light of his work schedule. Contrary to the mother’s argument, the father’s actions the day of and immediately after filing the custody petition did not amount to willful interference with the mother’s right to parental access so as to render him an unfit custodial parent (cf. Matter of Jarvis v. Lashley, 169 AD3d 1043, 1044). Moreover, the mother’s contention that the father was not involved in the child’s medical care is not supported by the record. “The determination of parental access is within the sound discretion of the hearing court based upon the best interests of the child” (Matter of Parris v. Wright, 170 AD3d 731, 731). “Parental access is a joint right of the noncustodial parent and of the child” (id. at 731 [internal quotation marks omitted]). “Parental access with a noncustodial parent is presumed to be in the best interests of the child” (id.). Here, we agree with the Family Court’s exercise of discretion in setting the schedule for the mother’s parental access (see id.). The remaining contention of the attorney for the child is without merit. SCHEINKMAN, P.J., RIVERA, BALKIN and IANNACCI, JJ., concur. By Scheinkman, P.J.; Dillon, Leventhal, Miller, JJ. CHRISTIANA TRUST, ETC., res, v. HIMON BARUA, app, ET AL., def (Index No. 611910/15) APPEAL by the defendant Himon Barua, in an action to foreclose a mortgage, from an order of the Supreme Court (Peter H. Mayer, J.) dated September 7, 2017, and entered in Suffolk County. The order, insofar as appealed from, denied that defendant’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred and to cancel a lis pendens filed against the subject property. Ehsanul Habib, Forest Hills, NY, for appellant. Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (Jordan J. Manfro of counsel), for respondent. DILLON, J. This is an appeal that involves the commencement of a mortgage foreclosure action that accelerated the full balance of the debt, the discontinuance of that action, the later commencement of a second action on the same note, and the statute of limitations. For reasons set forth below, we hold that the second action was time-barred, as it was commenced beyond the applicable six-year statute of limitations of CPLR 213(4). We also address whether the mere discontinuance of an action, in and of itself, nullifies any debt acceleration demanded in a foreclosure plaintiff’s complaint, absent other communication to the borrower that de-acceleration is also intended by the discontinuance. I. Relevant Facts On July 25, 2006, the defendant Himon Barua (hereinafter the defendant) executed a note in the sum of $312,000 in favor of JPMorgan Chase Bank, N.A. (hereinafter Chase). The note was secured by a residential mortgage executed by both the defendant and the defendant Emon Barua encumbering certain real property located in Brentwood (hereinafter the subject property). The defendant allegedly defaulted in his monthly payment obligations on the note beginning on April 1, 2009. On November 6, 2009, Chase commenced a mortgage foreclosure action against the defendant and others by the filing of a summons and complaint in the Supreme Court (hereinafter the first action). Chase alleged in paragraph 9 of the complaint that the named defendants defaulted on their payment obligations under the note and mortgage by failing to make the payment that had become due on April 1, 2009. In paragraph 11 of the complaint, it was alleged that Chase “elected and does hereby elect to declare the entire principal balance [of the note] to be due and owing.” Later, according to an eCourts printout contained in the record, Chase moved to discontinue the first action, and the motion was granted in an order dated October 15, 2013. In a summons with notice and complaint filed on November 10, 2015, Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, as trustee for Normandy Mortgage Loan Trust, Series 2013-18 (hereinafter the plaintiff), commenced an action against the defendant and others to foreclose the mortgage on the subject property (hereinafter the second action). The plaintiff alleged that it was the holder of the note and the assignee of the mortgage, and that the defendant was in default of his payment obligations. Paragraph III(E) of the complaint alleged that the plaintiff “elected to and hereby accelerate[s] the mortgage and declare[s] the entire mortgage indebtedness immediately due and payable.” On March 10, 2016, the defendant moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him on the ground that the second action was time-barred and to cancel a lis pendens that had been filed against the subject property. The defendant argued that since the first action was commenced on November 6, 2009, and accelerated the full amount due on the note at that time, the second action, commenced on November 10, 2015, was commenced beyond the six-year statute of limitations of CPLR 213(4) and was therefore untimely. In opposition, the plaintiff argued, inter alia, that the discontinuance of the first action without prejudice, which occurred within six years of that action’s acceleration of the full balance due on the note, operated as a de-acceleration of the debt. The plaintiff further argued that the discontinuance of the first action “leaves the situation as if the action had never been filed” (internal quotation marks omitted), in effect erasing the acceleration of the debt which occurred when the first action was commenced on November 6, 2009. The plaintiff concluded that the commencement of the second action on November 10, 2015, constituted a new acceleration rendering the second action timely. In the order appealed from, dated September 7, 2017, the Supreme Court, inter alia, denied the defendant’s motion. The court agreed with the plaintiff that when the first action was discontinued, everything that had occurred within that action, including Chase’s acceleration of the loan debt, was annulled. The court concluded that since the first action had been voluntarily discontinued by Chase, that affirmative act revoked the 2009 acceleration of the debt, and the debt acceleration of the second action in 2015 was therefore timely. For the reasons we discuss below, we reverse the order insofar as appealed from. II. The Effect of De-acceleration Upon the Statute of Limitations The parties do not dispute that the controlling statute of limitations for breach of contract actions is six years (see CPLR 213[4]; Milone v. US Bank N.A., 164 AD3d 145, 151; Wells Fargo Bank, N.A. v. Eitani, 148 AD3d 193, 197; Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 AD3d 985, 986), and that the first action had the stated effect of accelerating the balance of the debt owed on the defendant’s note, which triggered the limitations period (see Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 AD3d at 986; EMC Mtge. Corp. v. Patella, 279 AD2d 604, 605). The plaintiff and the defendant differ about whether the 2009 debt acceleration was thereafter extinguished by the affirmative discontinuance of the first action on October 15, 2013. Two years ago, this Court addressed similar issues in Milone v. US Bank N.A. (164 AD3d 145). In Milone, a lender commenced an action to foreclose a mortgage upon residential property on January 13, 2009, as a result of the borrower’s default in making monthly installment payments on the note. The acceleration of the full mortgage debt in that action had the effect of commencing the six-year statute of limitations set forth in CPLR 213(4). In an order of the Supreme Court dated February 29, 2012, the action was dismissed after more than three years had run against the statute of limitations. On October 21, 2014, approximately three months before the statute of limitations was to expire, the lender’s servicer transmitted a letter to the borrower advising that the note, which had previously been accelerated, was de-accelerated, that any prior demand for full payment on the note was withdrawn, and that the debt was reinstituted as an installment loan (see Milone v. US Bank N.A., 164 AD3d at 149). On March 10, 2015, after the six-year statute of limitations had expired as measured from the initial debt acceleration, the borrower in Milone commenced an action pursuant to RPAPL 1501 to cancel and discharge the mortgage and note, arguing that no new foreclosure action had been commenced on the note within six years from its acceleration. The lender moved to dismiss the complaint in the RPAPL 1501 action on the ground that since a de-acceleration of the loan balance had occurred within six years of the acceleration, there was no violation of the statute of limitations and a new six-year limitations period would only begin to run if the full balance of the same note were to be accelerated at some time in the future (see Milone v. US Bank N.A., 164 AD3d at 149-150). The borrower cross-moved for summary judgment on the complaint. The Supreme Court granted the lender’s motion to dismiss the complaint with prejudice and denied the borrower’s cross motion for summary judgment on the complaint. On appeal, this Court modified the order, concluding that the Supreme Court should have denied the lender’s motion to dismiss the complaint because there was a question of fact as to the lender’s standing to de-accelerate the loan debt. This Court used the occasion in Milone to sort out the law and procedures governing the acceleration and de-acceleration of notes. We recognized well-established precedent that lenders may revoke the acceleration of full mortgage loan balances, so long as the revocation is accomplished by an affirmative act occurring within six years of the earlier acceleration (see id. at 154, citing Deutsche Bank Natl. Trust Co. v. Adrian, 157 AD3d 934, 935, MSMJ Realty, LLC v. DLJ Mtge. Capital, Inc., 157 AD3d 885, 887, NMNT Realty Corp. v. Knoxville 2012 Trust, 151 AD3d 1068, 1069-1070, U.S. Bank N.A. v. Barnett, 151 AD3d 791, 793, Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 AD3d at 987, UMLIC VP, LLC v. Mellace, 19 AD3d 684, Clayton Natl. v. Guldi, 307 AD2d 982, and EMC Mtge. Corp. v. Patella, 279 AD2d at 606; see also HSBC Bank USA, N.A. v. Gold, 171 AD3d 1029, 1030; Freedom Mtge. Corp. v. Engel, 163 AD3d 631, 632, lv granted in part 33 NY3d 1039; Deutsche Bank Natl. Trust Co. v. Adrian, 157 AD3d at 935). We then held for the first time that just as acceleration notices must be clear and unambiguous (see Nationstar Mtge., LLC v. Weisblum, 143 AD3d 866, 867; Wells Fargo Bank, N.A. v. Burke, 94 AD3d 980, 983; Sarva v. Chakravorty, 34 AD3d 438, 439; see also J & JT Holding Corp. v. Deutsche Bank Natl. Trust Co., 173 AD3d 704), the de-acceleration of note balances must also be clear and unambiguous to convey the fact that the previous demand for full payment of the note has been affirmatively revoked (see Milone v. US Bank N.A., 164 AD3d at 153). We further held in Milone, for the first time, that just as standing is a prerequisite to a valid acceleration, a party must also have standing to effect a de-acceleration of the debt (see id. at 155). Moreover, recognizing that the foreclosure of mortgages encumbering residential properties involves elements of equity, we held in Milone that the declaration of a de-acceleration cannot be utilized as a mere pretext to avoid the onerous effect of the statute of limitations. “[A] de-acceleration letter is not pretextual ifit contains an express demand for monthly payments on the note, or, in the absence of such express demand, it is accompanied by copies of monthly invoices transmitted to the homeowner for installment payments, or is supported by other forms of evidence demonstrating that the lender was truly seeking to de-accelerate and not attempting to achieve another purpose under the guise of de-acceleration” (id. at 154, citing Deutsche Bank Natl. Trust Co. Ams. v. Bernal, 56 Misc 3d 915, 923-924 [Sup Ct, Westchester County, Scheinkman, J.]). The Milone case involved a de-acceleration letter from a servicer that clearly and unambiguously demanded a resumption of monthly installment payments on the note. Here, by contrast, we are faced not with a letter of de-acceleration, but a discontinuance of the first action, which had sought full payment of the accelerated debt. Beyond Milone, this Court has repeatedly held that a lender’s mere act of discontinuing an action, without more, does not constitute, in and of itself, an affirmative act revoking an earlier acceleration of the debt (see Bank of N.Y. Mellon v. Yacoob, ___ AD3d ___, 2020 NY Slip Op 02451 [2d Dept]; HSBC Bank, N.A. v. Vaswani, 174 AD3d 514, 515; Federal Natl. Mtge. Assn. v. Schmitt, 172 AD3d 1324, 1326; Aquino v. Ventures Trust 2013-I-H-R by MCM Capital Partners, 172 AD3d 663; Bank of N.Y. Mellon v. Craig, 169 AD3d 627, 629; U.S. Bank Trust, N.A. v. Aorta, 167 AD3d 807, 809; Freedom Mtge. Corp. v. Engel, 163 AD3d at 633; Beneficial Homeowner Serv. Corp. v. Tovar, 150 AD3d 657, 658).1 Various reported trial level decisions and orders holding to the contrary should no longer be followed. The reason for requiring that a valid de-acceleration requires more than a bare discontinuance of a foreclosure action is that the full balance of a mortgage debt cannot be sought without an acceleration, whereas the voluntary discontinuance of a foreclosure action may be occasioned for any number of different reasons, including those that have nothing to do with an intent to revoke the acceleration. A bare discontinuance does not disclose its underlying reasons nor say anything about the discontinuing party’s intent to de-accelerate the full debt. There are sound legal and public policy reasons in requiring that a lender or servicer, upon de-accelerating a loan balance, demonstrate its good-faith and bona fide intentions in rescinding its demand for the full loan balance and in seeking a resumption of monthly installment payments. Once a mortgage debt is accelerated, the borrower’s right and obligation to make monthly installments ceases and all sums and penalties become immediately due and payable (see Federal Natl. Mtge. Assn. v. Mebane, 208 AD2d 892, 894). A borrower so circumstanced may typically, necessarily, and detrimentally rely upon the acceleration for not tendering further monthly payments on the note, knowing that monthly installments will no longer be accepted (see Deutsche Bank Natl. Trust Co. Ams. v. Bernal, 56 Misc 3d at 923). While the borrower might have defaulted in the first instance as a result of a financial inability to pay monthly installments, it is entirely possible in some cases that a borrower may acquire, after the loan balance is accelerated, the ability to pay arrears and maintain current payments, though lacking the ability to pay off the entire accelerated debt (see id.). A de-acceleration of the full debt revives the borrower’s right to make the monthly payments that became due between the time the loan was accelerated and the time the acceleration was revoked, together with the right to make future monthly installment payments. Since the borrower may continue to assume that its lender or servicer will not accept post-acceleration monthly payments, the lender, in order to effectively rescind the acceleration, should be required to notify the borrower that the right to make monthly payments is restored and that the lender will accept the tender of such payments (see id.). Indeed, for residential mortgage loans subject to the federal Real Estate Settlement Procedures Act (hereinafter RESPA), the rules promulgated by the Consumer Financial Protection Board pursuant to RESPA require the issuance of statements for each periodic billing period (see 12 USC 2617; 12 CFR 1026.41[a][2]; [b], [d]). Here, the plaintiff did not submit to the Supreme Court, and hence could not include in the appellate record (see CPLR 5526; Matter of Dondi, 63 NY2d 331, 339; Yauchler v. Serth, 114 AD3d 1069; Singer v. Board of Educ. of City of N.Y., 97 AD2d 507; Renelique v. American Tr. Ins. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50482[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists]), a copy of the earlier motion papers that sought to discontinue the first action. The plaintiff also did not provide to the court, and could not include in the appellate record, the order dated October 15, 2013, that granted the motion to discontinue the first action, as it instead relied at all times upon a mere eCourts printout of the motion history of the first action. As a result, the plaintiff failed to demonstrate any language in the motion to discontinue, or in the order rendered thereon, that clearly and unambiguously repudiated the statement in Chase’s verified complaint that Chase had elected to accelerate the full amount of the outstanding loan debt (see Bank of New York Mellon v. Yacoob, ___ AD3d ___, 2020 NY Slip Op 02451; HSBC Bank, N.A. v. Vaswani, 174 AD3d at 515; Federal Natl. Mtge. Assn. v. Schmitt, 172 AD3d at 1326; Aquino v. Ventures Trust 2013-I-H-R by MCM Capital Partners, 172 AD3d at 663; Bank of N.Y. Mellon v. Craig, 169 AD3d at 629; U.S. Bank Trust, N.A. v. Aorta, 167 AD3d at 809; Freedom Mtge. Corp. v. Engel, 163 AD3d at 633; Deutsche Bank Natl. Trust Co. v. Adrian, 157 AD3d at 935-936; cf. Beneficial Homeowner Serv. Corp. v. Tovar, 150 AD3d at 658). The plaintiff also failed to establish that it ever demanded a resumption of monthly mortgage installment payments, invoiced the defendant for such payments, or offered any other evidence demonstrating that it was truly seeking to de-accelerate the debt in addition to its discontinuance of the action (see Milone v. US Bank N.A., 164 AD3d at 155). Other evidence of a valid de-acceleration may include, but is not limited to, the voluntary vacatur of a lender’s filed lis pendens (see CPLR 6514[d]), and a forbearance agreement evincing a clear intent to revoke a prior acceleration and reinstate the homeowner’s right to repay the underlying debt in monthly installments (see U.S. Bank Trust, N.A. v. Rudick, 172 AD3d 1430, 1431), but the record is devoid of evidence of those activities as well. Our developed law that the discontinuance of residential mortgage foreclosure actions is not tantamount to an automatic de-acceleration of the full loan debt is further buttressed by the fact that these actions are not only creatures of contract law. Mortgage foreclosure actions are not purely contractual, but are a unique hybrid of contract (the note) and equity (foreclosure on the premises and eviction of the homeowner). “‘A foreclosure action is equitable in nature and triggers the equitable powers of the court’” (Onewest Bank, FSB v. Kaur, 172 AD3d 1392, 1393-1394, quoting Rajic v. Faust, 165 AD3d 716, 717). We are therefore not persuaded by our dissenting colleague that courts cannot examine the subjective intent of the discontinuing party in these instances. If residential mortgage foreclosure actions are flavored with a twist of equity, as they are, then the decisional authority that has developed in Milone and its progeny, and in Bernal, has a valid equitable basis, without representing any judicial drift on the part of our Court. Moreover, the acceleration of a debt in a residential mortgage foreclosure action survives a simple discontinuance of the action, because the right to exercise an acceleration independently arises from the provisions of the note between the parties, and not from the existence of the potential judicial remedies of the court. In other words, the mere discontinuance of an action is not tantamount to a withdrawal of the acceleration itself, but merely withdraws the prayer that the court assist the lender in collecting the accelerated amount. The right to collect the full debt, once accelerated, exists under paragraph 7(c) of the parties’ note independent of the lawsuit unless, as we have previously held, a de-acceleration is clearly and unambiguously communicated to the borrower as such. To the extent our dissenting colleague suggests that the discontinuance of an action withdraws all requests for relief, including any demand for recovering the accelerated debt, citing Loeb v. Willis (100 NY 231) and Mahon v. Remington (256 App Div 889), those cases are inapplicable, as an acceleration springs from the parties’ note, and not from the collateral right to commence an action upon it. Indeed, as noted by the Court of Appeals, “[t]he fact of election [to accelerate a mortgage debt] should not be confused with the notice or manifestation of such election” (Albertina Realty Co. v. Rosbro Realty Corp., 258 NY 472, 476). An acceleration may be communicated in different forms by a letter to the borrower clearly and unambiguously advising that because of a default in payment the full loan balance was being called due (see Nationstar Mtge., LLC v. Weisblum, 143 AD3d at 867; Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 982-983; Sarva v. Chakravorty, 34 AD3d at 439), by a self-executing balloon payment due at the end of the payback period (see Trustco Bank N.Y. v. 37 Clark St., 157 Misc 2d 843, 844 [Sup Ct, Saratoga County]), or, as relevant here, by commencing an action where the complaint seeks to recover the full amount of the loan balance (see Albertina Realty Co. v. Rosbro Realty Corp., 258 NY at 476; Wells Fargo Bank, N.A. v. Lefkowitz, 171 AD3d 843, 844; Clayton Natl. v. Guldi, 307 AD2d 982; City Sts. Realty Corp. v. Jan Jay Constr. Enters. Corp., 88 AD2d 558, 559). Those activities are unilaterally initiated by the lender or servicer as a matter of right or, as in the case of a final balloon payment, by prior contractual agreement of the parties. A bare discontinuance of litigation does not nullify the fact that a contractual right to accelerate has been unilaterally exercised pursuant to the terms of a note. An acceleration of loan debt by the transmittal of a letter or by the commencement of an action in a court of law has legal implications, such as the financial penalties authorized under the note, the potential negative effect upon the borrower’s credit rating, and reliance by the borrower that monthly payments will no longer be expected or accepted and thereby prevent any pay-down of the balance owed. To occur, none of these or other consequences of an acceleration require any permission, ruling, stipulation, decision, or order of a court, as they are independent of the litigation. Here, since Chase accelerated the loan balance by commencing the first action on November 6, 2009, and the second action was not commenced until November 10, 2015, the defendant met his initial burden of demonstrating, prima facie, that the second action is time-barred by operation of CPLR 213(4) and 3211(a)(5) by four days (see HSBC Bank USA, N.A. v. Gold, 171 AD3d at 1030; Bank of N.Y. Mellon v. Dieudonne, 171 AD3d 34, 36; U.S. Bank N.A. v. Joseph, 159 AD3d 968, 969; U.S. Bank N.A. v. Gordon, 158 AD3d 832, 834; Campone v. Panos, 142 AD3d 1126, 1127; Stewart v. GDC Tower at Greystone, 138 AD3d 729, 730). In opposition, where the burden of going forward shifted, the plaintiff failed to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether it actually commenced the second action within the applicable limitations period (see HSBC Bank USA, N.A. v. Gold, 171 AD3d at 1030; U.S. Bank N.A. v. Joseph, 159 AD3d at 969; U.S. Bank N.A. v. Gordon, 158 AD3d at 834; Stewart v. GDC Tower at Greystone, 138 AD3d at 730; Barry v. Cadman Towers, Inc., 136 AD3d 951, 952), as there is no evidence in the record that Chase or the plaintiff ever communicated a de-acceleration of the demand for payment of the full debt. Therefore, the Supreme Court should have granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint in the second action insofar as asserted against him as time-barred. III. The Interplay of CPLR 204(a) and RPAPL 1304 The plaintiff argues that the second action is timely pursuant to CPLR 204(a) because the 90-day period required for mailing a statutory notice of default under RPAPL 1304 operates as a toll of the statute of limitations for that same period of time. Although the plaintiff’s argument is raised for the first time on appeal, we are able to reach it since it is an issue of law which appears on the face of the record and could not have been avoided had it been raised before the Supreme Court (see Countrywide Bank, FSB v. Singh, 173 AD3d 673, 675). The notice period of RPAPL 1304 does not operate to toll the statute of limitations. CPLR 204(a) authorizes the tolling of a statute of limitations where the commencement of an action is stayed by a court order or by a statutory prohibition (see Torsoe Bros. Constr. Corp. v. McKenzie, 271 AD2d 682, 682-683). There is a difference between a “statutory prohibition,” on the one hand, which tolls the statute of limitations, and a “condition precedent” to suit, on the other, which does not generate a toll (see Barchet v. New York City Tr. Auth., 20 NY2d 1, 6; HSBC Bank USA v. Kirschenbaum, 159 AD3d 506, 506-507). RPAPL 1304 is not a statutory prohibition within the scope of CPLR 204(a), but is instead a condition precedent to the commencement of mortgage foreclosure actions (see Citibank, N.A. v. Conti-Scheurer, 172 AD3d 17; Marchai Props., L.P. v. Fu, 171 AD3d 722, 724-725; Wells Fargo Bank, N.A. v. Trupia, 150 AD3d 1049, 1050; Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 106). As such, RPAPL 1304 does not trigger a toll of the applicable statute of limitations under CPLR 204(a) (see HSBC Bank USA v. Kirschenbaum, 159 AD3d at 507; cf. Singh v. New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.], 107 AD3d 780, 782; Pilgrim v. New York City Tr. Auth., 235 AD2d 527, 527-528; Costa v. Deutsche Bank Natl. Trust Co. for GSR Mtge. Loan Trust 2006-OA1, 247 F Supp 3d 329, 344-348 [SD NY]). CPLR 201 cautions that “[n]o court shall extend the time limited by law for the commencement of an action.” Here, were it relevant, the plaintiff does not even detail how or in what manner its compliance with RPAPL 1304 caused its commencement of the second action to occur four days beyond the expiration of the six-year statute of limitations (see HSBC Bank USA v. Kirschenbaum, 159 AD3d at 506-507; cf. Capital One, N.A. v. Saglimbeni, 170 AD3d 508, 509). IV. Miscellaneous In light of our determination to grant that branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against him, we also grant that branch of the defendant’s motion which was to cancel the lis pendens that had been filed against the subject property (see Gallagher Removal Serv. v. Duchnowski, 179 AD2d 622). The parties’ remaining contentions are without merit or have been rendered academic by other aspects of this opinion and order. In light of the foregoing, the order is reversed insofar as appealed from, on the law, and the defendant’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred and to cancel the lis pendens filed against the subject property is granted. SCHEINKMAN, P.J., and LEVENTHAL, J., concur. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Himon Barua pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred and to cancel a lis pendens filed against the subject property is granted. MILLER, J., concurs in part and dissents in part, and votes to modify the order, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Himon Barua which was pursuant to CPLR 3211(a)(5) to dismiss so much of the complaint as sought to recover damages for any unpaid installments that were due prior to November 10, 2009, insofar as asserted against him, and substituting therefor a provision granting that branch of the motion, and, as so modified, to affirm the order insofar as appealed from, with the following memorandum: It is rare, given the centuries of jurisprudence upon which we may draw, for a court to encounter a truly novel legal issue. This is especially true when legal issues arise from a well-developed practice area such as contract law. When legal precedent is available, it should be applied in accordance with the doctrine of stare decisis. That doctrine, among other things, “reassures the public that our decisions arise from a continuum of legal principle rather than the personal caprice of the members of [a] Court” (People v. Peque, 22 NY3d 168, 194; see Matter of Brooke S.B. v. Elizabeth A.C.C., 28 NY3d 1, 23). In this case, we are urged to announce and extend an entirely new set of legal rules to govern the issues that have arisen in this relatively straightforward mortgage foreclosure action. The issues implicated by this case are not new, however, and the legal precedents that have developed to address these situations should not be so lightly cast aside with vague references to “equity” or through the invocation of one-sided hypotheticals that have no bearing on the facts of this case. Instead of restoring clarity and predictability, the decision to ignore precedent will foster additional confusion in this important area of the law. And while the public policy views underlying the decision to create these new rules are no doubt laudable, they are realized here without any legislative basis, and at the expense of the parties’ contract. Accordingly, and for the reasons that follow, I must respectfully dissent in part. 1. Factual and Procedural Background With summons and notice dated August 5, 2015, and filed November 10, 2015, the plaintiff, Christiana Trust, commenced this action to foreclose a mortgage. The complaint alleged that the defendant Himon Barua (hereinafter the borrower) executed a note in the sum of $312,000 in favor of the defendant JPMorgan Chase Bank, N.A. (hereinafter Chase). The complaint alleged that the borrower defaulted under the terms of the note by failing to make required monthly payments beginning with the payment due on April 1, 2009, and “each subsequent month thereafter.” The complaint alleged that in light of the borrower’s default, the plaintiff was electing to accelerate the mortgage debt and declare the entire indebtedness immediately due and payable. The plaintiff sought a judicial sale of the property to satisfy the amounts due under the terms of the note and, if necessary, a deficiency judgment against the borrower. There is no indication in the record that the borrower has ever interposed an answer in response to the complaint. In any event, with notice dated March 10, 2016, the borrower moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him on the ground that the action is barred by the statute of limitations. In support of his motion, the borrower submitted, inter alia, a complaint in a prior foreclosure action that had been commenced by Chase in 2009 (hereinafter the 2009 action), and an eCourts printout indicating that the prior action had been discontinued by Chase sometime in 2013. The borrower argued that Chase had unequivocally elected to accelerate the mortgage debt by commencing the 2009 action, and that the present action was time-barred by virtue of the fact that it had been commenced more than six years later. The plaintiff opposed the borrower’s motion. The plaintiff argued that the motion was not properly before the court because the borrower had defaulted in this action and had failed to set forth a reasonable excuse for his default. In any event, the plaintiff contended that the voluntary discontinuance in the 2009 action constituted a revocation of Chase’s election to accelerate the mortgage debt and foreclose the mortgage. In an order dated September 7, 2017, the Supreme Court, among other things, denied the borrower’s motion, inter alia, to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(5). The court noted that, generally, the holder of a note is entitled to revoke its election to accelerate a mortgage debt so long as it does so within six years of the acceleration, i.e., before the six-year statute of limitations period has run. The court determined that, in this case, Chase had revoked its election to accelerate the mortgage debt and foreclose the mortgage by voluntarily discontinuing the 2009 action, which had been effected in an order dated October 15, 2013. In light of the evidence that Chase had revoked its election to accelerate the mortgage debt less than six years prior to the commencement of the instant action, the court concluded that the instant action was timely commenced. The borrower appeals from the Supreme Court’s order. On appeal, the borrower contends that the court erred in denying his motion, inter alia, to dismiss the complaint insofar as asserted against him as time-barred. The borrower contends that Chase’s voluntary discontinuance of the 2009 action did not constitute an affirmative act revoking Chase’s election to accelerate the mortgage debt and foreclose the mortgage. In response, the plaintiff contends that, in accordance with this Court’s case law, the court properly denied the borrower’s motion since the evidence that Chase voluntary discontinued the 2009 action raised a question of fact as to whether Chase revoked its election to accelerate the mortgage debt and foreclose the mortgage. 2. Legal Analysis The statute of limitations is an affirmative defense (see CPLR 3018[b]). At a trial, “[t]he defendant interposing the Statute of Limitations as an affirmative defense has the burden of proving its applicability” (Connell v. Hayden, 83 AD2d 30, 39). “However, a plaintiff relying upon an exception thereto has the burden of proving that [it] comes within the exception” (id. at 39). “[T]he Statute of Limitations is generally viewed as a personal defense” (John J. Kassner & Co. v. City of New York, 46 NY2d 544, 550). “[A]s a general rule a party who has not raised the Statute of Limitations as a defense in the answer or by a motion to dismiss is held to have waived it” (id. at 552; see CPLR 3211[e]; see also Weinstein-Korn-Miller, NY Civ Prac CPLR 201.11 [2020]). The CPLR authorizes “[a] party [to] move for judgment dismissing one or more causes of action asserted against [them] on the ground thatthe cause of action may not be maintained because of[a] statute of limitations” (CPLR 3211[a][5]). “In resolving a motion to dismiss pursuant to CPLR 3211(a)(5), the court must accept the facts as alleged in the complaint as true, and accord the plaintiff the benefit of every possible favorable inference” (U.S. Bank N.A. v. Gordon, 158 AD3d 832, 834; see Faison v. Lewis, 25 NY3d 220, 224; Ford v. Phillips, 121 AD3d 1232, 1234; 6D Farm Corp. v. Carr, 63 AD3d 903, 905; see also Leon v. Martinez, 84 NY2d 83, 87-88). “To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired” (Stewart v. GDC Tower at Greystone, 138 AD3d 729, 729; see Campone v. Panos, 142 AD3d 1126, 1127). “If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period” (Barry v. Cadman Towers, Inc., 136 AD3d 951, 952; see U.S. Bank N.A. v. Gordon, 158 AD3d at 834-835; Stewart v. GDC Tower at Greystone, 138 AD3d at 730). As relevant here, “an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein” “must be commenced within six years” (CPLR 213[4]). “The time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed” (CPLR 203[a]; see Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 NY3d 765, 770). Accordingly, to meet its initial burden on a motion pursuant to CPLR 3211(a)(5), a defendant must establish, as a matter of law, “when the causes of action accrued” (Philip F. v. Roman Catholic Diocese of Las Vegas, 70 AD3d 765, 766; see Swift v. New York Med. Coll., 25 AD3d 686, 687). Generally, “[a] cause of action does not accrue until its enforcement becomes possible” (Jacobus v. Colgate, 217 NY 235, 245). This occurs “as soon as a claimant is able to state the elements of that cause of action, and hence, to assert a valid right to some sort of legal relief” (Roldan v. Allstate Ins. Co., 149 AD2d 20, 26; see Bank of N.Y. Mellon v. Dieudonne, 171 AD3d 34, 36; New York City Tr. Auth. v. Morris J. Eisen, P.C., 276 AD2d 78, 85). Since nominal damages are always available to enforce the promises given in a contract (see Kronos, Inc. v. AVX Corp., 81 NY2d 90, 95; cf. Schmidt v. Merchants Despatch Transp. Co., 270 NY 287, 300), all of the elements necessary to maintain a cause of action alleging breach of contract are present at the time the contract is breached (see Ely-Cruikshank Co. v. Bank of Montreal, 81 NY2d 399, 402). Accordingly, “[i]n New York, a breach of contract cause of action accrues at the time of the breach” (id. at 402; see Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 NY3d at 770). Where, as here, the alleged breach is a default in the making of a monthly installment payment, a separate breach occurs for each installment that is not paid, and the statute of limitations begins to run on each cause of action “on the date each installment becomes due” (Wells Fargo Bank, N.A. v. Burke, 94 AD3d 980, 982; see Wells Fargo Bank, N.A. v. Cohen, 80 AD3d 753, 754; Loiacono v. Goldberg, 240 AD2d 476, 477; Pagano v. Smith, 201 AD2d 632, 633). “[T]he cause of action accrues when the plaintiff possesses a legal right to demand payment” (Swift v. New York Med. Coll., 25 AD3d at 687 [internal quotation marks omitted]; see Minskoff Grant Realty & Mgt. Corp. v. 211 Mgr. Corp., 71 AD3d 843, 845; Kuo v. Wall St. Mtge. Bankers, Ltd., 65 AD3d 1089, 1090). Accordingly, an action may generally be brought on each unpaid installment within six years of the time it matured or became due (see 1 Bergman on New York Mortgage Foreclosures 5.11[2] [2020]). Conversely, and without more, “recovery is barred for installments due more than six years before the mortgage foreclosure action was commenced” (id.). In this case it is clear, based on the factual allegations in the complaint alone, that the statute of limitations bars recovery of a portion of the damages sought in this action. As previously indicated, this action was commenced with the filing of the summons with notice on November 10, 2015 (see CPLR 304[a]; see also CPLR 2102). The complaint specifically seeks to recover damages for unpaid installments that were due beginning on April 1, 2009more than six years before this action was interposed. The borrower’s submissions established, prima facie, that recovery is time-barred for any unpaid installments that were due prior to November 10, 2009to wit, from the installment due on April 1, 2009, up to and including the installment due on November 1, 2009 (see CPLR 203[a]; 213[4]; see also General Construction Law 20). In response to the borrower’s motion, the plaintiff failed to raise a question of fact as to whether the action was timely with respect to any unpaid installments that were due before November 10, 2009. The plaintiff did not address the fact that, on its face, the complaint seeks to recover payments that were due more than six years before this action was commenced. Accordingly, the Supreme Court should have granted the borrower’s motion to the extent of dismissing so much of the complaint as sought to recover damages for any unpaid installments that were due prior to November 10, 2009, insofar as asserted against him (see e.g. Elia v. Perla, 150 AD3d 962, 965; Central Gen. Hosp. v. Bramex Ltd., 174 AD2d 556, 556). The borrower contends that the plaintiff is also barred from recovering damages for any unpaid installments that were due less than six years prior to the commencement of this action, as well as barred from recovering damages for installments that have not yet come due under the terms of the parties’ agreements. Notably, in this regard, the borrower agreed in the note to make monthly installment payments until August 1, 2036. The borrower contends that, upon his default, Chase validly exercised its option to accelerate the maturity of the entire unpaid portion of the mortgage debt. Since this acceleration occurred more than six years prior to the commencement of this action, the borrower contends that the statute of limitations has run on the entire unpaid portion of the mortgage debt, and that the Supreme Court should have granted dismissal of the entire complaint as time-barred. “[E]ven if a mortgage is payable in installments, the terms of the mortgage may contain an acceleration clause that gives the lender ‘the option to demand due the entire balance of principal and interest upon the occurrence of certain events delineated in the mortgage’” (Bank of N.Y. Mellon v. Dieudonne, 171 AD3d at 37, quoting 1 Bergman on New York Mortgage Foreclosures 4.02; see Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 982-983). “Once [a] mortgage debt [is] accelerated, the borrowers’ right and obligation to make monthly installments cease[s] and all sums [become] immediately due and payable” (Federal Natl. Mtge. Assn. v. Mebane, 208 AD2d 892, 894; see EMC Mtge. Corp. v. Patella, 279 AD2d 604, 605). A lender’s right to accelerate a mortgage debt does not arise from the common law or a statute, but from the terms of the parties’ agreement. Accordingly, the specific terms of each note and mortgage dictate the circumstances under which a holder may demand due the entire balance of principal and interest (cf. Real Property Law 254[2]). Generally speaking, the holder’s option to accelerate the mortgage debt becomes operable when the borrower commits what amounts to a material breach of the parties’ agreement, as defined in the agreement itself (cf. Awards.com v. Kinko’s, Inc., 42 AD3d 178, 187, affd 14 NY3d 791). Thus, it has been recognized that “an acceleration clauseis merely a deviceintended to secure the [borrower's] obligation to perform a material element of the bargain” (Fifty States Mgt. Corp. v. Pioneer Auto Parks, 46 NY2d 573, 578). An option to accelerate is properly viewed as a remedy “for the benefit of the mortgagee, in whose control it should repose” (1 Bergman on New York Mortgage Foreclosures 4.03). It need hardly be said that the holder of a note and mortgage is not required to seek or obtain the borrower’s consent to an acceleration, as the decision of whether to exercise an option to accelerate a mortgage debt is reserved solely to the discretion of the holder, as one of the remedies available to compensate it for a material breach committed by the borrower (see Cohn v. Spitzer, 145 App Div 104, 107, affd 207 NY 738; cf. U.S. Bank Trust, N.A. v. Rudick, 172 AD3d 1430, 1431). The decision of whether to exercise an option to accelerate a mortgage debt in response to a qualifying breach constitutes the election of a remedy. Until the holder affirmatively elects to take advantage of the option to accelerate the mortgage debt, “[it] has no operation” (Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 983; see Esther M. Mertz Trust v. Fox Meadow Partners, 288 AD2d 338, 340; Ward v. Walkley, 143 AD2d 415, 417; see also 1 Bergman on New York Mortgage Foreclosures 4.05, 5.11[2]; cf. Phoenix Acquisition Corp. v. Campcore, Inc., 81 NY2d 138, 142-144). Accordingly, until it is affirmatively exercised, a holder’s “right to accelerate the debt [does] not affect the Statute of Limitations,” which, under such circumstances, continues to run “only upon the maturity of [each] discrete [payment] obligation” (Vigilant Ins. Co. of Am. v. Housing Auth. of City of El Paso, Tex., 87 NY2d 36, 44). As a general matter, in order to constitute a valid election to accelerate, the entity making the election must have the contractual authority, or “standing,” to make the election, and that authority must be exercised in accordance with the terms of the note and mortgage (Milone v. US Bank N.A., 164 AD3d 145, 155; see U.S. Bank N.A. v. Gordon, 158 AD3d at 836; Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 982-983; see also Avail Holding LLC v. Ramos, 2019 WL 6498170, 2019 US Dist LEXIS 208524 [ED NY, No. 19-CV-117 (BMC)]). Accordingly, where the parties’ agreements “provide what the holder of the mortgage must do to evidence its election to declare the whole amount due,” those terms must be followed (Albertina Realty Co. v. Rosbro Realty Corp., 258 NY 472, 475). “Where the acceleration of the maturity of a mortgage debt on default is made optional with the holder of the note and mortgage, some affirmative action must be taken evidencing the holder’s election to take advantage of the accelerating provision” (Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 982-983). In order for a holder’s election to be enforceable against the borrower, the borrower must generally be provided “with notice of the lender’s decision to exercise an option to accelerate the maturity of a loan” (Bank of N.Y. Mellon v. Dieudonne, 171 AD3d at 38; see EMC Mtge. Corp. v. Smith, 18 AD3d 602, 603). To be enforceable, notice of the holder’s election must be “clear and unequivocal” (Sarva v. Chakravorty, 34 AD3d 438, 439; see Arbisser v. Gelbelman, 286 AD2d 693, 694; Colonie Block & Supply Co. v. Overmyer Co., 35 AD2d 897, 897). In commencing an action to enforce the terms of a note, the holder must set forth the remedy it seeks for the alleged breach. Where the plaintiff is the holder of both the note and mortgage, it must first elect whether to proceed “at law in a suit on the debt as evidenced by the note [or] in equity to foreclose the mortgage” (Copp v. Sands Point Mar., 17 NY2d 291, 293; see generally Motor Veh. Mfrs. Assn. v. State of New York, 75 NY2d 175, 181). If the holder elects to foreclose the mortgage, it must choose whether to foreclose the entire mortgage debt or proceed with a “partial foreclosure” (Golden v. Ramapo Improvement Corp., 78 AD2d 648, 649; see 2 Bergman on New York Mortgage Foreclosures 17.01; accord RPAPL 1351[2]). Partial foreclosure “permits a lender to recover unpaid installments that have become due, without accelerating the remaining portion of the debt” (Aurora Loan Servs., LLC v. Tobing, 172 AD3d 975, 977; see Golden v. Ramapo Improvement Corp., 78 AD2d at 650-651; see also 2 Bergman on New York Mortgage Foreclosures 17.03). If the holder of a note and mortgage elects to foreclose a portion of the mortgage debt that has not yet come due, it must necessarily exercise its option to accelerate the maturity of that portion of the debt. Under such circumstances, proper service of a pleading setting forth an election to foreclose the entire mortgage debt will ordinarily be sufficient “to put the borrower on notice that the option to accelerate the debt has been exercised” (Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 983; see Albertina Realty Co. v. Rosbro Realty Corp., 258 NY at 476; EMC Mtge. Corp. v. Smith, 18 AD3d at 603; Clayton Natl. v. Guldi, 307 AD2d 982, 982; Arbisser v. Gelbelman, 286 AD2d at 694). Indeed, “[t]he commencement of an action on one of two or more theories has traditionally been considered the decisive act that constitutes [an] election” (Weinstein-Korn-Miller, NY Civ Prac CPLR 3002.01). However, “[e]ven if the bringing of an action for one remedy is a manifestation of choice of that remedy, it does not preclude the plaintiff from shifting to another remedy as long as the defendant has not materially changed his [or her] position” (Restatement [Second] of Contracts 378, Comment a; see 12 Corbin on Contracts 66.6). Put another way, “a binding election occurs only where an estoppel is created” (12 Corbin on Contracts 66.7 n 3, citing Twentieth Century-Fox Film Corp. v. National Publs., Inc., 294 F Supp 10, 12 [SD NY]). Accordingly, even after the holder of a note and mortgage has elected to accelerate the entire mortgage debt, the holder retains the right to “revoke its election to accelerateprovided that there is no change in the borrower’s position in reliance thereon” (Federal Natl. Mtge. Assn. v. Mebane, 208 AD2d at 894; see Golden v. Ramapo Improvement Corp., 78 AD2d at 650; see also 1 Bergman on New York Mortgage Foreclosures 4.03[1]). The decision of whether to revoke an acceleration and seek an alternative remedy for the borrower’s breach “is discretionary with the [holder]” (Golden v. Ramapo Improvement Corp., 78 AD2d at 650), and unless and until prejudice to the borrower is shown, the holder of a note and mortgage is “ under no restraint in changing [its] mind” (id.). However, in order to be effective against the borrower, notice of the revocation must be “clear and unambiguous” (Milone v. US Bank N.A., 164 AD3d at 153). Since a valid acceleration gives the holder the immediate right to the accelerated portion of the mortgage debt, the statute of limitations begins to run on that portion of the debt from the date of the acceleration (see Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 982; EMC Mtge. Corp. v. Patella, 279 AD2d at 605; Loiacono v. Goldberg, 240 AD2d at 477). Accordingly, without more, an action to foreclose an accelerated portion of a mortgage debt is untimely if it is commenced more than six years after that mortgage debt was validly accelerated (see CPLR 213[4]). The holder “may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation” within six years after the election to accelerate was validly made (NMNT Realty Corp. v. Knoxville 2012 Trust, 151 AD3d 1068, 1069; see EMC Mtge. Corp. v. Patella, 279 AD2d at 606). As is the case with an acceleration, an entity must have the contractual authority or “standing” to validly revoke an election to accelerate, and that authority must be exercised in accordance with the terms of the note and mortgage (Milone v. US Bank N.A., 164 AD3d at 155). If an acceleration is validly revoked, the default principles of accrual apply and the statute of limitations continues to run “only upon the maturity of [each] discrete [payment] obligation” (Vigilant Ins. Co. of Am. v. Housing Auth. of City of El Paso, Tex., 87 NY2d at 44), such that installment payments that were due more than six years prior to the commencement of an action will still be time-barred (see Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 982). Here, in support of his motion to dismiss pursuant to CPLR 3211(a)(5), the borrower submitted, inter alia, the complaint from the 2009 action. As the borrower correctly contends, in its complaint in the 2009 action, Chase sought to recover the entire outstanding principal sum of the mortgage debt and unequivocally elected to accelerate that debt. Without more, the submission of the complaint in the 2009 action alone would have been sufficient to establish, prima facie, that the present action is time-barred, as it had been commenced more than six years after an acceleration of the entire mortgage debt had occurred (see Albertina Realty Co. v. Rosbro Realty Corp., 258 NY at 476; Bank of N.Y. Mellon v. Dieudonne, 171 AD3d at 38; Milone v. US Bank N.A., 164 AD3d at 152-153). However, the borrower’s submissions also included evidence indicating that Chase discontinued the 2009 action sometime in 2013. As the Supreme Court in this case properly concluded, the voluntary discontinuance of the 2009 action by Chase constituted formal and unequivocal notice that it was withdrawing its complaint and all of the requests for relief contained therein (see Mahon v. Remington, 256 App Div 889, 889; see also Loeb v. Willis, 100 NY 231, 235). Under these circumstances, Chase “destroy[ed] the effect” of the election that it had made in the complaint in the 2009 action by affirmatively discontinuing that action and formally withdrawing its only request for that relief (Albertina Realty Co. v. Rosbro Realty Corp., 258 NY at 476; cf. Beneficial Homeowner Serv. Corp. v. Tovar, 150 AD3d 657, 658). Inasmuch as the complaint in the 2009 action constituted the only evidence in the record showing that Chase had ever demanded the immediate payment of the entire mortgage debt, evidence showing that it had been affirmatively withdrawn by Chase in connection with a voluntary discontinuance raised a question of fact as to whether Chase revoked its election to accelerate (see NMNT Realty Corp. v. Knoxville 2012 Trust, 151 AD3d at 1070; see also U.S. Bank N.A. v. Charles, 173 AD3d 564, 565; Capital One, N.A. v. Saglimbeni, 170 AD3d 508, 509). Since the only demand for payment of the full debt that is contained in the record was formally and voluntarily withdrawn by Chase, I cannot agree with my colleagues’ conclusion that there is no evidence in the record that Chase ever affirmatively revoked its demand for payment of the full debt (see majority op at 7). Under the circumstances, since the borrower submitted this evidence of the voluntary discontinuance in support of his motion, he failed to sustain his initial burden of eliminating all questions of fact as to whether the entire action is time-barred (see U.S. Bank N.A. v. Gordon, 158 AD3d at 834-835). Under such circumstances, the Supreme Court should have denied the borrower’s motion to the extent that it pertained to the portions of the complaint that sought to recover damages for any unpaid installments that were due on or after November 10, 2009. My colleagues in the majority, relying on recent pronouncements from this Court, conclude that the evidence that Chase formally and affirmatively withdrew its only demand for the full payment of the debt was insufficient to raise a question of fact as to whether Chase revoked its election to accelerate. The cases relied upon my colleagues appear to be the product of judicial drift, as they fail to articulate any applicable legal theory, much less legal authority, to support their deviation from this Court’s prior precedent. In order to provide perspective on this issue, it is necessary to review this Court’s prior case law in this area. In Golden v. Ramapo Improvement Corp. (78 AD2d at 648), the plaintiff commenced an action to foreclose a mortgage and “elected to accelerate the remainder due under the mortgage.” The plaintiff subsequently “moved for a severance and for partial summary judgment on so much of her claim as sought foreclosure and sale for all payments due as of October 20, 1976, when defendant had been formally notified of its default pursuant to the terms of the mortgage” (id.). In rejecting the defendant’s position that the plaintiff either did not or could not revoke her election to accelerate, this Court stated that the “[p]laintiff’s purpose in moving for severance and partial summary judgment and in submitting a judgment containing the provision for continuing the mortgage was clearly to limit her recovery to those sums already past due under the payment schedules of the mortgage note” (id. at 650). In Federal Natl. Mtge. Assn. v. Mebane (208 AD2d at 894), the plaintiff “commenced a foreclosure actionand exercised its option to accelerate all sums due under the mortgage by making demand in the complaint.” That action was later dismissed due to the plaintiff’s failure to prosecute (see id.). More than six years after the mortgage debt had been accelerated, the plaintiff commenced a second action to recover on the same debt (see id.). This Court rejected the plaintiff’s contention that the court’s dismissal of the first action constituted evidence that it had revoked its election to accelerate the mortgage debt, concluding that “[i]t cannot be said that a dismissal by the court constituted an affirmative act by the lender to revoke its election to accelerate” (id.). This Court adhered to this principle in a number of subsequent determinations (see Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 AD3d 985, 987 ["the dismissal of the prior foreclosure action by the court did not constitute an affirmative act by the lender revoking its election to accelerate, and the record is barren of any affirmative act of revocation occurring during the six-year limitations period subsequent to the initiation of the prior action"]; Clayton Natl. v. Guldi, 307 AD2d at 982 ["the dismissal of the 1992 action for lack of personal jurisdiction did not constitute an affirmative act by the lender to revoke its election to accelerate"]; EMC Mtge. Corp. v. Patella, 279 AD2d at 606 ["the dismissal of the prior foreclosure action by the court did not constitute an affirmative act by the lender revoking its election to accelerate, and the record is barren of any affirmative act of revocation occurring during the six-year Statute of Limitations period"]). This Court first addressed the issue presented on this appeal in NMNT Realty Corp. v. Knoxville 2012 Trust (151 AD3d 1068). In that case, the plaintiff commenced the action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage on the ground that any action to foreclose was barred by the statute of limitations (see NMNT Realty Corp. v. Knoxville 2012 Trust, 151 AD3d at 1069). In moving for summary judgment, the plaintiff submitted a complaint from a prior action that had been commenced by the predecessor in interest of the holder of the note and mortgage to recover the entire mortgage debt (see id. at 1070). This Court concluded that the submission of the complaint established the plaintiff’s prima facie entitlement to summary judgment since it established that an action to foreclose the mortgage was time-barred (see id.). However, this Court determined that, in opposition to the plaintiff’s showing, the holder of the note and mortgage raised a triable issue of fact as to whether it’s predecessor in interest had revoked its election to accelerate the mortgage debt (see id.). In reaching this conclusion, this Court cited to evidence that the holder’s predecessor in interest had “moved for, andwas granted, an order that discontinued the foreclosure action” (id.). This Court distinguished cases where the prior foreclosure action was never withdrawn by the lender, but rather, dismissed by the court, since, in those cases, there was no affirmative act by the lender to show that it had revoked its election to accelerate (see id.). This Court also rejected evidence from the original mortgagors that the “‘Order of Discontinuance was the result of procedural deficiencies in the proceedings,’” finding that such allegations “do not disprove an affirmative act of revocation” (id.). This Court’s determination in NMNT Realty Corp. v. Knoxville 2012 Trust (151 AD3d 1068) has been cited and followed by the Appellate Division, First Department, in at least two subsequent cases (see U.S. Bank N.A. v. Charles, 173 AD3d at 565 [concluding that "[t]here is an issue of fact in this particular case regarding whether plaintiff’s discontinuance of the prior foreclosure action de-accelerated the mortgage,” despite the fact that “neither the motion seeking discontinuance [n]or the order entered granting that relief provided that the mortgage was de-accelerated or that plaintiff would now be accepting installment payments from the defendant”]; Capital One, N.A. v. Saglimbeni, 170 AD3d at 509 [concluding that "an issue of fact exists regarding whether the action is time-barred, which is dependent on whether plaintiff's assignor's voluntary discontinuance of the prior action due to a 'defective default notification' de-accelerated the mortgage debt"]; see also U.S. Bank Trust, N.A. v. Adhami, 2019 WL 486086, *6, 2019 US Dist LEXIS 19599, *13 [ED NY, No. 18-CV-530 (PKC) (AKT)] [concluding that action should not be dismissed as time-barred since "Plaintiff has sufficiently alleged, at this stage, that the prior voluntary discontinuance tolled the statute of limitations"]; Zucker v. HSBC Bank, USA, 2018 WL 2048880, *7, 2018 US Dist LEXIS 74478, *17 [ED NY, No. 17-CV-2192 (DRH) (SIL)] [noting generally that "Appellate Courts in New York have held that when a mortgagee moves for and is granted an order of discontinuance, it raises a question of fact as to [whether] there was an affirmative act to revoke its election to accelerate”]). Moreover, as recently as last year, “ten of the thirteen New York trial courts that have considered this issue have found that [w]ithdrawing the prior foreclosure action is an affirmative act of revocation that tolls the statute of limitations” (U.S. Bank Trust, N.A. v. Adhami, 2019 WL 486086, *5, 2019 US Dist LEXIS 19599, *12-13 [footnote and internal quotation marks omitted]; see e.g. Wilmington Sav. Fund Socy. v. DeCanio, 55 Misc 3d 1215[A], 2017 NY Slip Op 50585[U] [Sup Ct, Suffolk County]; 4 Cosgrove 950 Corp. v. Deutsche Bank Natl. Trust Co., 2016 NY Slip Op 32854[U], *3 [Sup Ct, NY County]). In Freedom Mtge. Corp. v. Engel (163 AD3d 631, lv granted in part 33 NY3d 1039), however, this Court departed from its prior precedent, without acknowledgment or explanation. In that case, the defendant established that the action was time-barred by showing that “the six-year statute of limitations began to run on the entire debtwhen the plaintiff accelerated the mortgage debt by commencing [a] prior foreclosure action” (id. at 632-633). In opposition, the plaintiff submitted evidence that it had voluntarily entered into a stipulation discontinuing the prior foreclosure action (see id. at 633). This Court, for the first time, held that evidence of a voluntary discontinuance was only sufficient to raise a triable issue of fact if the stipulation or discontinuance explicitly stated that it was being executed in order to revoke the election to accelerate, or otherwise specifically provided that the holder of the note and mortgage would resume accepting monthly installment payments until the next default (see id.). The new evidentiary burden imposed in Freedom Mtge. Corp. v. Engel (163 AD3d 631) finds no support in the prior case law, and its imposition is based on a misconstruction of the respective burdens imposed on a motion pursuant to CPLR 3211(a)(5). Indeed, as previously noted, in opposition to a prima facie showing under CPLR 3211(a)(5), a plaintiff is not required to conclusively establish, as a matter of law, that the action is timely. Rather, it need only rebut the defendant’s prima facie showing with evidence that raises a question of fact (see Pennymac Corp. v. McGlade, 176 AD3d 963, 965-966). As this Court has previously recognized, in this very context, “‘[s]ometimeswhether maturity has arrived through acceleration can be a question of fact’” (Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 983, quoting 1 Bergman on New York Mortgage Foreclosures 5.11[3]; cf. LPP Mtge. Ltd. v. Gold, 44 AD3d 718, 719). Inasmuch as there is no basis to require the plaintiff to establish, as a matter of law, that this action is timely, there is no basis to require the production of evidence that would conclusively establish that the plaintiff formally agreed to continue to accept prospective monthly payments (cf. Connell v. Hayden, 83 AD2d at 39). Such a showing would satisfy, as a matter of law, the plaintiff’s ultimate burden of proof on this issue, as it would unequivocally constitute “‘an affirmative act of revocation’” (Milone v. US Bank N.A., 164 AD3d at 154, quoting NMNT Realty Corp. v. Knoxville 2012 Trust, 151 AD3d at 1069). In the wake of Freedom Mtge. Corp. v. Engel (163 AD3d 631), there has been a proliferation of cases holding that a stipulation or a motion for a voluntary discontinuance must explicitly state that an acceleration has been revoked in order to raise a triable issue of fact in this context. But neither these cases, nor Freedom Mtge. Corp. v. Engel, has ever cited to any positive authority to support the imposition of this new burden. Nor do any of those cases acknowledge or explain their deviation from this Court’s prior determination in NMNT Realty Corp. v. Knoxville 2012 Trust (151 AD3d 1068) or from the numerous other conflicting determinations that have been reached by other courts in this State (see U.S. Bank N.A. v. Charles, 173 AD3d at 565; Capital One, N.A. v. Saglimbeni, 170 AD3d at 509; see also Wilmington Sav. Fund Socy. v. DeCanio, 55 Misc 3d 1215[A], 2017 NY Slip Op 50585[U]; 4 Cosgrove 950 Corp. v. Deutsche Bank Natl. Trust Co., 2016 NY Slip Op 32854[U], *3; U.S. Bank Trust, N.A. v. Adhami, 2019 WL 486086, 2019 US Dist LEXIS 19599). As this case illustrates, it is vital to advise the bench and bar if case law has been overruled, or it will continue to be relied upon, generating additional appeals. Given this confusion, it is hardly surprising that it has been recently observed that “New York State appellate courts have provided limited guidance on the mortgage acceleration question at issue here” (U.S. Bank Trust, N.A. v. Adhami, 2019 WL 486086, *5, 2019 US Dist LEXIS 19599, *11). Although never fully explained, the heightened evidentiary burden imposed by this Court in Freedom Mtge. Corp. v. Engel (163 AD3d 631) apparently reflects the idea that the subjective motivation behind any decision to revoke an acceleration is relevant because a revocation will not be effective if it was “a pretext to avoid the onerous effect of an approaching statute of limitations and to defeat the property owner’s right pursuant to RPAPL 1501 to cancel and discharge a mortgage and note” (Milone v. US Bank N.A., 164 AD3d at 154; see Deutsche Bank Natl. Trust Co. Ams. v. Bernal, 56 Misc 3d 915, 924 [Sup Ct, Westchester County]). This notion, that an otherwise valid revocation may be rendered invalid based on the subjective motivations of the lender, finds no support in the case law and is at odds with well-established principles of contract law. The Court of Appeals has expressly considered the limitations on the right of a lender to revoke its election to accelerate a mortgage debt, and has applied the well-established equitable principles of estoppel to this situation (see Kilpatrick v. Germania Life Ins. Co., 183 NY 163, 168). There is absolutely no authority, in either law or equity, to support the imposition of additional, noncontractual restraints on a party’s right to choose the remedy it will seek as redress for its adversary’s breach. To the contrary, this Court has already recognized the circumstances under which equity may intervene: “only if a mortgagor can show substantial prejudice will a court in the exercise of its equity jurisdiction restrain the [holder] from revoking its election to accelerate” (Golden v. Ramapo Improvement Corp., 78 AD2d at 650 [emphasis added]; see Kilpatrick v. Germania Life Ins. Co., 183 NY at 168; Ost v. Mindlin, 170 App Div 558, 559, affd 224 NY 668). Accordingly, in order to invoke the court’s “equitable powers” of estoppel, a borrower must affirmatively “demonstrateprejudice resulting from plaintiff’s revocation of [its] election to accelerate” (Golden v. Ramapo Improvement Corp., 78 AD2d at 650; see Kilpatrick v. Germania Life Ins. Co., 183 NY at 168; see generally First Union Natl. Bank v. Tecklenburg, 2 AD3d 575, 576-577; Deutsche Bank Natl. Trust Co. Ams. v. Bernal, 56 Misc 3d at 923). Prejudice, in this context, generally “involves impairment of the [borrower's] ability to defend on the merits, rather than merely foregoing such a procedural or technical advantage” as a statute of limitations defense (National Union Fire Ins. Co. of Pittsburgh, Pa. v. Barney Assoc., 130 FRD 291, 294 [SD NY]; see Kilpatrick v. Germania Life Ins. Co., 183 NY at 168; see also Beauge v. New York City Tr. Auth., 282 AD2d 416, 416; Busler v. Corbett, 259 AD2d 13, 16). Of course, there has been no such showing or allegation of prejudice in this case. Inasmuch as existing principles of equity serve to protect a borrower from the misuse of a contractual right (see First Union Natl. Bank v. Tecklenburg, 2 AD3d at 576-577), there is no reason to introduce an entirely novel “intent” element to this well-established area of the law. An acceleration is either revoked, in fact, or it is not. Evidence of the amount demanded by the holder during the relevant period is dispositive on this point. There is no reason to add a mens rea component or inject an additional layer of analysis to explore the holder’s metaphysical motivations in choosing their contractual remedy. Regardless of intent, an acceleration has not been revoked, “in fact,” if the holder of the note and mortgage continues to demand the immediate payment of the entire mortgage debt or refuses to accept prospective monthly installment payments in accordance with the terms of the original agreements (Milone v. US Bank N.A., 164 AD3d at 154; see Lavin v. Elmakiss, 302 AD2d 638, 639). Here, the borrower has not alleged that Chase or any subsequent holder continued to demand the immediate payment of the entire mortgage debt after it discontinued the 2009 action, or that it otherwise refused to accept any tendered monthly installment payments. Nor is there any evidence in the record indicating that Chase engaged in any such conduct. Rather, the evidence in the record shows that Chase formally and affirmatively withdrew its only demand for the immediate payment of the entire mortgage debt. This evidence is relevant because it has a tendency to make it more likely that Chase had revoked its election to accelerate to pursue a different remedy than the one it sought in the withdrawn complaint (see generally Guide to NY Evid rule 4.01, Relevant Evidence; 1 McCormick on Evidence 185 [8th ed 2020]). Accordingly, the order should be modified by deleting the provision thereof denying that branch of the borrower’s motion which was pursuant to CPLR 3211(a)(5) to dismiss so much of the complaint as sought to recover damages for any unpaid installments that were due prior to November 10, 2009, insofar as asserted against him, and substituting therefor a provision granting that branch of the borrower’s motion, and, as so modified, the order should be affirmed. 1. The number of reported appellate cases holding that the mere discontinuance of an action does not singularly qualify as a clear and unambiguous repudiation of a prior debt acceleration are now quite numerousso numerous, in fact, that NMNT Realty Corp. v. Knoxville 2012 Trust (151 AD3d 1068), which may be construed as holding to the contrary on this one discrete legal point, appears to be an outlier. By Rivera, J.P.; Roman, Hinds-Radix, Duffy, JJ. STEVEN M. WEISS, app, v. OKUJI O. ARUNSI, def, LEO YANJKILEVICH, ET AL., res (Index No. 504014/12) Leav & Steinberg, New York, NY (Edward R. Averbuch of counsel), for appellant. Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum and Brian J. Daly], of counsel), for respondent Leo Yanjkilevich. McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Carle Place, NY (Patrick M. Murphy of counsel), for respondents Eric J. Geredien and Daniel S. Paluszek. James G. Bilello, Hicksville, NY (Patricia McDonagh of counsel), for defendant Okuji O. Arunsi. In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Debra Silber, J.), dated January 10, 2019. The order, insofar as appealed from, granted those branches of the separate motions of the defendant Leo Yanjkilevich and the defendants Eric J. Geredien and Daniel S. Paluszek which were for summary judgment dismissing the complaint insofar as asserted against each of them. ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs to the plaintiff payable by the respondents appearing separately and filing separate briefs, and those branches of the separate motions of the defendant Leo Yanjkilevich and the defendants Eric J. Geredien and Daniel S. Paluszek which were for summary judgment dismissing the complaint insofar as asserted against each of them are denied. The instant action involves a four-vehicle, chain reaction accident. The plaintiff, who was operating the lead vehicle, commenced this action against the defendants Eric J. Geredien and Daniel S. Paluszek, the owner and operator of the second vehicle, respectively, the defendant Leo Yanjkilevich, the operator of the third vehicle, and the defendant Okuji O. Arunsi, the operator of the fourth vehicle. After discovery, Yanjkilevich moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him. Thereafter, Geredien and Paluszek moved, among other things, for the same relief as to them. The Supreme Court granted those branches of the motions. The plaintiff appeals, and we reverse. “‘A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle’” (Jimenez v. Ramirez, 171 AD3d 902, 903, quoting Nsiah-Ababio v. Hunter, 78 AD3d 672, 672; see Vehicle and Traffic Law 1129[a]). Hence, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Tutrani v. County of Suffolk, 10 NY3d 906; Mihalatos v. Barnett, 175 AD3d 492). “‘Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation’” (Williams v. Sala, 152 AD3d 729, 729, quoting Ortiz v. Haidar, 68 AD3d 953, 954). A party moving for summary judgment has the burden of establishing his or her entitlement to judgment as a matter of law by coming forward with evidentiary proof, in admissible form, demonstrating the absence of any triable issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Zuckerman v. City of New York, 49 NY2d 557, 562). Here, the moving defendants failed to make such a showing. In support of the respective motions for summary judgment, the moving defendants submitted, inter alia, the deposition testimony of the plaintiff, Arunsi, and Paluszek, each of whom provided varying accounts of the accident. This evidence raised triable issues of fact as to how the accident occurred and whether Yanjkilevich and Paluszek were at fault in the happening of the accident (see Delgado v. Butt, 48 AD3d 735, 735-736). Accordingly, the Supreme Court should have denied those branches of the motions which were for summary judgment dismissing the complaint insofar as asserted against Yanjkilevich, Geredien, and Paluszek, without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). RIVERA, J.P., ROMAN, HINDS-RADIX and DUFFY, JJ., concur. By Mastro, J.P.; Cohen, Christopher, Wooten, JJ. BAC HOME LOANS SERVICING, L.P., ETC., plf, v. KEVIN KIRNON, def, TERESA WILLIAMS, app; PMT NPL FINANCING 2014-1, nonparty-res (Index No. 4505/08) Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellant. Davidson Fink LLP, Rochester, NY (Larry T. Powell of counsel), for nonparty-respondent. In a consolidated action to foreclose a mortgage, the defendant Teresa Williams appeals from a judgment of foreclosure and sale of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered December 6, 2017. The judgment of foreclosure and sale, upon an order of the same court, also entered December 6, 2017, inter alia, granting that branch of the plaintiff’s motion which was for a judgment of foreclosure and sale, and denying the cross motion of the defendant Teresa Williams pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her as abandoned, inter alia, directed the sale of the subject property. ORDERED that the judgment of foreclosure and sale is reversed, on the law, with costs, that branch of the plaintiff’s motion which was for a judgment of foreclosure and sale is denied, the cross motion of the defendant Teresa Williams pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her as abandoned is granted, and the order entered December 6, 2017, is modified accordingly. The plaintiff commenced an action in March 2008, under Index No. 4505/08, against Teresa Williams (hereinafter the defendant), among others, to foreclose a mortgage (hereinafter the 2008 action). An order of reference was issued in July 2008, and a judgment of foreclosure and sale was subsequently entered on November 7, 2008 (hereinafter the 2008 judgment). Following a motion by the defendant, inter alia, for a framed-issue hearing with respect to the validity of service of process, the hearing court determined that the defendant was “not properly served.” In an order entered September 22, 2009, the Supreme Court vacated so much of the 2008 judgment as was against the defendant, and directed dismissal of the complaint in the 2008 action insofar as asserted against the defendant. The plaintiff commenced a second action in November 2009, under Index No. 23430/09, against the defendant, among others, to foreclose the same mortgage (hereinafter the 2009 action). The defendant did not appear or answer the complaint. In May 2017, the plaintiff moved for, among other things, a judgment of foreclosure and sale. The defendant opposed the motion and cross-moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her as abandoned. The Supreme Court, upon granting the motion and denying the cross motion, entered a judgment of foreclosure and sale, inter alia, directing the sale of the subject property. The defendant appeals. The Supreme Court should have denied that branch of the plaintiff’s motion which was for a judgment of foreclosure and sale and granted the defendant’s cross motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her as abandoned. CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” In order to show sufficient cause, a plaintiff is required to “‘demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action’” (HSBC Bank USA, N.A. v. Jean, 165 AD3d 632, 634, quoting Aurora Loan Servs., LLC v. Hiyo, 130 AD3d 763, 764). Here, the plaintiff failed to take steps to initiate proceedings for the entry of a default judgment against the defendant within one year after her default in the 2009 action, and has set forth no reasonable excuse for said failure (see Chase Home Fin., LLC v. Fernandez, 175 AD3d 1381, 1382; Deutsche Bank Natl. Trust Co. v. Booker, 173 AD3d 683, 685). We reject the contention of the nonparty-respondent that the defendant failed to assemble a sufficient record for this Court to reach an informed decision on the merits and provide meaningful appellate review of the judgment appealed from (see US Bank, N.A. v. Morrison, 160 AD3d 679, 680). Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was for a judgment of foreclosure and sale and should have granted the defendant’s cross motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her. In view of the foregoing, we need not reach the remaining contentions of the defendant, and the remaining contention of the nonparty-respondent is without merit. MASTRO, J.P., COHEN, CHRISTOPHER and WOOTEN, JJ., concur. By Dillon, J.P.; Miller, Barros, Connolly, JJ. U.S. BANK NATIONAL ASSOCIATION, ETC., res, v. STUART BIENENSTOCK, ETC., ET AL., app, ET AL., def (Index No. 1270/10) Law Offices of Sanford F. Young, P.C., New York, NY, for appellants. McCabe, Weisberg & Conway, LLC (Blank Rome LLP, New York, NY [Timothy W. Salter and Diana M. Eng], of counsel), for respondent. In an action to foreclose a mortgage, the defendants Stuart Bienenstock and Erica Bienenstock appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered April 10, 2017. The order denied those defendants’ motion, in effect, pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale of the same court entered December 18, 2013, upon their failure to appear or answer the complaint, and to dismiss the complaint insofar as asserted against them, inter alia, for lack of personal jurisdiction, or, in the alternative, to compel the plaintiff to accept a late answer. ORDERED that the order is affirmed, with costs. Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308 (see Washington Mut. Bank v. Murphy, 127 AD3d 1167, 1174; Emigrant Mtge. Co., Inc. v. Westervelt, 105 AD3d 896, 896-897). The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void (see Emigrant Mtge. Co., Inc. v. Westervelt, 105 AD3d at 897; Krisilas v. Mount Sinai Hosp., 63 AD3d 887, 889). “[A] process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service” (Wells Fargo Bank, NA v. Chaplin, 65 AD3d 588, 589; see U.S. Natl. Bank Assn. v. Melton, 90 AD3d 742, 743). A bare and unsubstantiated denial of service is insufficient to rebut the presumption of proper service created by a duly executed affidavit of service, and a hearing is not required where “the defendant fails to swear to specific facts rebutting the statements in the process server’s affidavit” (U.S. Natl. Bank Assn. v. Melton, 90 AD3d at 743; see U.S. Bank, N.A. v. Arias, 85 AD3d 1014, 1015). Here, the affidavits of service of the plaintiff’s process server constituted prima facie evidence of proper service on the defendants Stuart Bienenstock and Erica Bienenstock (hereinafter together the defendants) (see Real Estate Mtge. Network, Inc. v. Martinez, 166 AD3d 1028), and the claimed discrepancies between the appearance of Erica Bienenstock and the description in the process server’s affidavits were either too minor or insufficiently substantiated to warrant a hearing (see Wells Fargo Bank, NA v. Johnston, 175 AD3d 744). Accordingly, we agree with the Supreme Court’s determination to deny the defendants’ motion, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against them, inter alia, for lack of personal jurisdiction, or, in the alternative, to compel the plaintiff to accept a late answer. In view of our determination, we need not address the defendants’ remaining contentions. DILLON, J.P., MILLER, BARROS and CONNOLLY, JJ., concur. By Leventhal, J.P.; Maltese, Duffy, Christopher, JJ. TARSHA M. WILLIAMS, ETC., ET AL., app, v. MARIA GEORGOPOULOS, ET AL., res, ET AL., def (Index No. 523/17) Stuart Meltzer & Associates, P.C. (Norman A. Olch, New York, NY, of counsel), for appellants. Vigorito, Barker, Patterson, Nichols & Porter, LLP, New York, NY (Adonaid C. Medina of counsel), for respondents. In an action, inter alia, to recover damages for negligence, the plaintiffs appeal from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated November 30, 2018. The order granted the motion of the defendants Maria Georgopoulos and New York Methodist Hospital for leave to reargue (1) that branch of their prior motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them, which had been denied in an order the same court (Gloria M. Dabiri, J.) dated April 19, 2018, and (2) their opposition to the plaintiffs’ prior cross motion for leave to amend the complaint, which had been granted in the order dated April 19, 2018, and, upon reargument, in effect, vacated the order dated April 19, 2018, and thereupon, granted that branch of the prior motion of the defendants Maria Georgopoulos and New York Methodist Hospital which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them, and denied the plaintiffs’ prior cross motion for leave to amend the complaint. ORDERED that the order dated November 30, 2018, is affirmed, with costs. The plaintiff Tarsha M. Williams gave birth to her daughter in the first week of February 2014, at the defendant New York Methodist Hospital (hereinafter NYMH). On the date of the birth, the New York City Administration for Children’s Services (hereinafter ACS) removed the child from Williams’s custody after the defendant Maria Georgopoulos, an employee of NYMH, reported to ACS that Williams was not a fit mother. The child was returned to Williams’s custody on February 20, 2014. On February 21, 2017, the plaintiffs commenced this action against Georgopoulos, and NYMH (hereinafter together the defendants), among others, seeking damages for, inter alia, the defendants’ allegedly false report to ACS. The defendants moved, among other things, to dismiss the complaint insofar as asserted against them, and the plaintiffs cross-moved for leave to amend the complaint to add causes of action to recover damages for negligence, negligence per se, breach of fiduciary duty, intentional infliction of emotional distress, and negligent hiring, supervision, and retention. In an order dated April 19, 2018, the Supreme Court, Kings County (Gloria M. Dabiri, J.), denied the defendants’ motion to dismiss the complaint insofar as asserted against them and granted the plaintiffs’ cross motion for leave to amend the complaint. Due to Justice Dabiri’s retirement, the matter was administratively reassigned to Justice Edwards. The defendants moved for leave to reargue that branch of their prior motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them and their opposition to the plaintiffs’ cross motion for leave to amend the complaint. The Supreme Court granted leave to reargue and, upon reargument, granted that branch of the defendants’ prior motion and denied the plaintiffs’ cross motion on the ground that the plaintiffs’ causes of action were time-barred. The plaintiffs appeal. Contrary to the plaintiffs’ contention, Justice Edwards had the authority to decide the defendants’ motion for leave to reargue their prior motion to dismiss the complaint insofar as asserted against them and their opposition to the plaintiffs’ prior cross motion for leave to amend the complaint because Justice Dabiri, who signed the order on the prior motion and cross motion, was unable to hear the motion (see CPLR 2221[a]; see also 22 NYCRR 202.8[a]). Contrary to the plaintiffs’ contention, neither CPLR 9002 nor the doctrine of law of the case prevented Justice Edwards from granting the defendants’ motion (see Matter of Quattrone v. Erie 2-Chautauqua-Cattaraugus Bd. of Coop. Educ. Servs., 148 AD3d 1553, 1554). We agree with the Supreme Court’s determination that the plaintiffs’ causes of action accrued on the date of the child’s birth, when the defendants allegedly failed to investigate Williams’s fitness and filed a false report with ACS (see Matter of Salomon v. Town of Wallkill, 174 AD3d 720, 721-722; Bratge v. Simons, 167 AD3d 1458, 1459-1460, Harrington v. Suffolk County, 102 AD3d 923, 923-924). Since the plaintiffs filed their complaint more than three years after their causes of action accrued, their causes of action are barred by the applicable statutes of limitations (see CPLR 214[5]; 215[3]; Calamari v. Panos, 131 AD3d 1088, 1090; Elmakies v. Sunshine, 113 AD3d 814, 815). Contrary to the plaintiffs’ contention, the continuing wrong doctrine does not apply here, because ACS’s custody of the child from the date of birth to February 20 was a continuing effect of the defendants’ earlier, allegedly negligent conduct, and not a series of independent, distinct wrongs (see Matter of Salomon v. Town of Wallkill, 174 AD3d at 721-722; Bratge v. Simons, 167 AD3d at 1460; Harrington v. Suffolk County, 102 AD3d at 924). Accordingly, we agree with the Supreme Court’s determination to grant the defendants’ motion for leave to reargue and, upon reargument, to grant that branch of the defendants’ prior motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them and to deny the plaintiffs’ prior cross motion for leave to amend the complaint. LEVENTHAL, J.P., MALTESE, DUFFY and CHRISTOPHER, JJ., concur. By Leventhal, J.P.; Roman, Cohen, Maltese, JJ. IN THE MATTER OF BRYCE L. (ANONYMOUS). ADMINISTRATION FOR CHILDREN’S SERVICES, res; DAVID B. (ANONYMOUS), app (Proceeding No. 1); IN THE MATTER OF HARLEY B. (ANONYMOUS). ADMINISTRATION FOR CHILDREN’S SERVICES, res; DAVID B. (ANONYMOUS), app (Proceeding No. 2) (Index No. N-7281-19, N-7282-19) Brooklyn Defender Services, Family Defense Practice, Brooklyn, NY (Piyali Basak and Kathryn V. Lissy of counsel), for appellant. James E. Johnson, Corporation Counsel, New York, NY (Deborah A. Brenner and Julia Bedell of counsel), for respondent. Janet E. Sabel, New York, NY (Dawne A. Mitchell and Judith Stern of counsel), attorney for the children. In related proceedings pursuant to Family Court Act article 10, the father appeals from an order of the Family Court, Kings County (Ilana Gruebel, J.), dated June 12, 2019. The order, after a hearing, found that the father willfully violated a temporary order of protection issued on March 18, 2019, and committed him to a three-month term of incarceration. By decision and order on motion of this Court dated July 8, 2019, enforcement of the order dated June 12, 2019, was stayed pending the hearing and determination of the appeal. ORDERED that the order is reversed, on the law, without costs or disbursements. The failure of the Family Court to personally serve the appellant with the order to show cause upon initiation of the contempt proceeding was a jurisdictional defect (see Matter of Howard T.P. v. Maria B., 237 AD2d 443; Matter of Minter, 132 AD2d 701). Accordingly, we reverse the order. LEVENTHAL, J.P., ROMAN, COHEN and MALTESE, JJ., concur. By Rivera, J.P.; Roman, Miller, Wooten, JJ. IN THE MATTER OF JOLANI P. (ANONYMOUS). WESTCHESTER COUNTY DEPARTMENT OF SOCIAL SERVICES, pet-res; PARRIS M. (ANONYMOUS), app, ET AL., res (Index No. N-7844-18, N-7846-18) George E. Reed, Jr., White Plains, NY, for appellant. John M. Nonna, County Attorney, White Plains, NY (Linda M. Trentacoste and Dave H. Chen of counsel; Miy Mahran on the brief), for petitioner-respondent. Carton & Rosoff, P.C., White Plains, NY (Robin D. Carton of counsel), attorney for the child. In a proceeding pursuant to Family Court Act article 10, the mother appeals from a permanency hearing order of the Family Court, Westchester County (Michelle I. Schauer, J.), entered January 24, 2019. The order, insofar as appealed from, after a hearing, continued the child’s placement with the petitioner until the completion of the next permanency hearing or pending further orders of the court. ORDERED that the appeal is dismissed as academic, without costs or disbursements. The mother appeals from so much of the permanency hearing order entered on January 24, 2019, as continued the child’s placement with the petitioner until the completion of the next permanency hearing or pending further orders of the court. A subsequent permanency hearing order was entered on July 25, 2019. The mother’s appeal from so much of the permanency hearing order as continued the child’s placement in the custody of the petitioner until the completion of the next permanency hearing or pending further orders of the court, is dismissed as academic, as that portion of the order has expired (see Matter of Peter T. [Shay S.P.], 173 AD3d 1046, 1047; Matter of Peter T. [Shay S.P.], 173 AD3d 1043, 1045; Matter of Victoria B. [Jonathan M.], 164 AD3d 578, 580). Contrary to the mother’s contention, this case does not warrant the invocation of the exception to the mootness doctrine (see Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 714-715). RIVERA, J.P., ROMAN, MILLER and WOOTEN, JJ., concur. By Dillon, J.P.; Maltese, Barros, Connolly, JJ. IN THE MATTER OF ALEXANDER Y. (ANONYMOUS). ADMINISTRATION FOR CHILDREN’S SERVICES, pet-res; CHRISTOPHER P. (ANONYMOUS), app, ET AL., res (Index No. N-30285-15) Cheryl Charles-Duval, Brooklyn, NY, for appellant. James E. Johnson, Corporation Counsel, New York, NY (Aaron M. Bloom and Jamison Davies of counsel), for petitioner-respondent. Janet E. Sabel, New York, NY (Dawne A. Mitchell and Diane Pazar of counsel), attorney for the child. In a proceeding pursuant to Family Court Act article 10, Christopher P. appeals from an order of the Family Court, Kings County (Ilana Gruebel, J.), dated February 22, 2019. The order denied Christopher P.’s motion pursuant to Family Court Act 1061 to vacate so much of an order of fact-finding and disposition of the same court dated May 3, 2018, as, upon his consent to the entry of an order of fact-finding without admission pursuant to Family Court Act 1051(a), found that he neglected the subject child. ORDERED that the order dated February 22, 2019, is affirmed, without costs or disbursements. In December 2015, the Administration for Children’s Services (hereinafter ACS) filed a petition alleging that Christopher P., a person legally responsible for the subject child, neglected the child by inflicting excessive corporal punishment on him. In an order of fact-finding and disposition dated May 3, 2018, issued upon Christopher P.’s consent without admission pursuant to Family Court Act 1051(a), the Family Court found that Christopher P. neglected the child as alleged in the petition. The court suspended judgment without the promise of an automatic vacatur of the finding of neglect. The child was released to the custody of his biological father under ACS supervision for a period of six months, and Christopher P. was directed to, inter alia, abide by an order of protection. In November 2018, Christopher P. moved pursuant to Family Court Act 1061 to vacate the finding of neglect. ACS and the attorney for the child opposed the motion. In an order dated February 22, 2019, the Family Court denied Christopher P.’s motion. Christopher P. appeals. Pursuant to Family Court Act 1061, the Family Court may set aside, modify, or vacate any order issued in the course of a child protective proceeding “[f]or good cause shown.” “‘The statute expresses the strong Legislative policy in favor of continuing Family Court jurisdiction over the child and family so that the court can do what is necessary in the furtherance of the child’s welfare’” (Matter of Aaliyah B. [Althea R.], 170 AD3d 712, quoting Matter of Boston G. [Jennifer G.], 157 AD3d 675, 677). As a general rule, compliance with the terms and conditions of a suspended judgment does not eradicate the prior neglect finding (see Matter of Anoushka G. [Cyntra M.], 132 AD3d 867, 868). Here, the record demonstrates that Christopher P. failed to establish good cause to vacate the prior finding of neglect (see Family Ct Act 1061; Matter of Inocencia W. [Yasha W.], 147 AD3d 865, 866). Accordingly, we agree with the determination of the Family Court to deny his motion. DILLON, J.P., MALTESE, BARROS and CONNOLLY, JJ., concur. By Mastro, J.P.; Cohen, Christopher, Wooten, JJ. AVI VIZEL, app-res, v. BRIAN VITALE, ETC., res-app (Index No. 502107/16) Bruck LLP, Brooklyn, NY (Yair M. Bruck of counsel), for appellant-respondent. Cornicello, Tendler & Baumel-Cornicello, LLP, New York, NY (Anthony J. Cornicello, Marianna L. Picciocchi, and Jay H. Berg of counsel), for respondent-appellant. In an action, inter alia, for a judgment declaring that the plaintiff has a valid lease for certain premises, the plaintiff appeals, and the defendant cross-appeals, from an order of the Supreme Court, Kings County (Pamela L. Fisher, J.), dated September 18, 2018. The order, insofar as appealed from, denied those branches of the plaintiff’s cross motion which were for summary judgment on the first and second causes of action in the amended complaint, and granted those branches of the defendant’s motion which were for summary judgment, in effect, declaring that the subject lease did not contain a valid and enforceable option and that the lease had expired by its own terms on June 30, 2015, and on the second counterclaim. The order, insofar as cross-appealed from, denied those branches of the defendant’s motion which were for summary judgment on the fifth and sixth counterclaims. ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the subject lease did not contain a valid and enforceable option and that the lease had expired by its own terms on June 30, 2015. In 2010, the plaintiff, as tenant, entered into a five-year lease with the defendant, as landlord, for certain commercial premises in Brooklyn. The agreement set forth fixed dollar amounts for annual rent, which increased for each successive year of the lease. The lease also contained an option to renew for an additional five-year term, conditioned upon the plaintiff not being in default under any provision of the lease. The option to renew was silent with regard to the rent to be paid during the renewal term. In addition, the lease obligated the plaintiff to pay to the defendant the previous tenant’s outstanding financial obligations, and also to purchase fixtures and equipment left behind by the previous tenant (hereinafter the purchase debt). The purchase debt was to be paid by the plaintiff in installments as additional rent. Several months before the expiration date of the lease, the plaintiff advised the defendant in writing of his election to renew the lease. A few weeks after the original lease term expired, the defendant sent the plaintiff an amended lease which, among other things, set forth a fixed rent schedule for the renewal period that was substantially higher than the rent for the original lease term. The plaintiff did not execute the amended lease and instead continued to make rent payments in the amount he had been paying in the final year of the original lease term, contending that he had properly exercised the option to renew and was entitled to continue paying the rent charged under the original lease term during the renewal term. In January 2016, the defendant returned to the plaintiff six undeposited rent checks and notified the plaintiff that his tenancy was terminated. When the plaintiff refused to vacate the premises, the defendant commenced a holdover proceeding against him. The plaintiff commenced this action, inter alia, for a judgment declaring that the subject lease had been validly renewed through June 30, 2020, and for injunctive relief staying the holdover proceeding commenced by the defendant. Noting that the annual rent increases under the original term of the lease amounted to three percent per year, the plaintiff alleged that the parties “understood” that the rent for the renewal period would likewise increase at a rate of three percent annually from the rent charged under the original lease term. The defendant asserted six counterclaims in his answer. In relevant part, the first counterclaim sought a judgment declaring that the lease did not contain a valid and enforceable option and that the lease had expired by its terms on June 30, 2015. The second counterclaim sought to recover damages for the plaintiff’s use and occupancy of the leasehold premises during the holdover period. The fifth and sixth counterclaims sought to recover damages for the outstanding balance of the purchase debt and for late charges in connection therewith, respectively. In an order dated September 18, 2018, the Supreme Court, inter alia, granted that branch of the defendant’s motion which was for summary judgment, in effect, declaring that the lease did not contain a valid and enforceable option and that the lease had expired by its own terms on June 30, 2015, and on the second counterclaim, and determined that the defendant was entitled to recover damages for the plaintiff’s use and occupancy of the leasehold premises in an amount to be determined at a subsequent framed-issue hearing. The court further determined that triable issues of fact precluded an award of summary judgment in favor of the defendant on the fifth and sixth counterclaims to recover the balance of the purchase debt and late charges. The court denied the plaintiff’s cross motion for summary judgment. The plaintiff appeals, and the defendant cross-appeals, from the order. We agree with the Supreme Court’s granting of those branches of the defendant’s motion which were for summary judgment, in effect, declaring that the lease did not contain a valid and enforceable option and that the lease had expired by its terms on June 30, 2015, and on the second counterclaim, as the option to renew was unenforceable for lack of definiteness. “The doctrine of definiteness or certainty is well established in contract law. In short, it means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to” (Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 NY2d 88, 91). Among the terms of a lease that must be known is the amount of rent that is to be paid (see Joseph Martin, Jr., Delicatessen v. Schumacher, 52 NY2d 105, 109; Mur-Mil Caterers, Inc. v. Werner, 166 AD2d 565, 566). The doctrine of definiteness, however, is not applied rigidly, and “where it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain” (Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 NY2d at 91). In the absence of an explicit contract term, the requirement of definiteness may be satisfied where: (1) the agreement itself sets forth an agreed methodology for determining the missing term within its four corners or (2) the agreement invites recourse to an objective extrinsic event, condition, or standard to ascertain the term (see id. at 91-92; Joseph Martin, Jr., Delicatessen v. Schumacher, 52 NY2d at 109). Here, the parties’ failure to set forth either the amount of rent to be paid during the renewal period, or an agreed formula, methodology, or objective extrinsic event by which that rent could be determined, rendered the option to renew an unenforceable agreement to agree (see generally Joseph Martin, Jr., Delicatessen v. Schumacher, 52 NY2d at 109; NHD Nigani, LLC v. Angelina Zabel Props., Inc., 161 AD3d 758, 761; Total Telcom Group Corp. v. Kendal on Hudson, 157 AD3d 746, 747). Thus, the defendant demonstrated his prima facie entitlement to judgment as a matter of law on the first and second counterclaims. The plaintiff’s contention that the fixed rent amounts under the original lease term effectively evidenced the parties’ agreement to a formula whereby rent would continue to increase by three percent annually during the renewal term was insufficient to raise a triable issue of fact in opposition to the motion, since this claim is belied not only by the omission of such a term from the lease itself, but also by the plaintiff’s own failure to pay any such three percent increase after the expiration of the original lease term. Accordingly, we agree with the Supreme Court’s determination granting those branches of the defendant’s motion which were for summary judgment, in effect, declaring that the lease did not contain a valid and enforceable option and that the lease had expired by its terms on June 30, 2015, and on the second counterclaim, and denying those branches of the plaintiff’s cross motion which were for summary judgment on the first and second causes of action in the amended complaint. We further agree with the Supreme Court’s denial of those branches of the defendant’s motion which were for summary judgment on the fifth and sixth counterclaims to recover the purchase debt and late charges. “Generally, a written agreement which prohibits oral modification can only be changed by an ‘executory agreementin writing’” (Calica v. Reisman, Peirez & Reisman, 296 AD2d 367, 368, quoting General Obligations Law 15-301[1]). “However, an oral modification is enforceable if the party seeking enforcement can demonstrate partial performance of the oral modification, which performance must be unequivocally referable to the modification” (Calica v. Reisman, Peirez & Reisman, 296 AD2d at 369; see Rose v. Spa Realty Assoc., 42 NY2d 338, 343-344; Matter of Latin Events, LLC v. Doley, 120 AD3d 501). Here, the defendant demonstrated, prima facie, that the plaintiff defaulted under the terms of lease when the plaintiff ceased to make monthly payments towards the purchase debt (see Renali Realty Group 3 v. Robbins MBW Corp., 259 AD2d 682). However, in opposition, the plaintiff submitted sufficient evidence to raise a triable issue of fact as to whether there was partial performance of a modification of the lease whereby the defendant waived the plaintiff’s obligation to pay the balance of the purchase debt (see Rose v. Spa Realty Assoc., 42 NY2d at 343-344; Matter of Latin Events, LLC v. Doley, 120 AD3d at 501-502). In view of the foregoing, we do not reach the parties’ remaining contentions. Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the subject lease did not contain a valid and enforceable option and that the lease had expired by its terms on June 30, 2015 (see Lanza v. Wagner, 11 NY2d 317, 334). MASTRO, J.P., COHEN, CHRISTOPHER and WOOTEN, JJ., concur. AVI VIZEL, app-res, v. BRIAN VITALE, ETC., res-app (Index No. 502107/16) Motion by the respondent-appellant on an appeal and cross appeal from an order of the Supreme Court, Kings County, dated September 18, 2018, inter alia, to dismiss the appeal on the ground that it has been rendered academic. By decision and order on motion of this Court dated July 15, 2019, that branch of the motion was held in abeyance and referred to the panel of Justices hearing the appeal and cross appeal for determination upon the argument or submission thereof. Upon the papers filed in support of the motion, and the papers filed in opposition thereto, and upon the argument of the appeal and cross appeal, it is ORDERED that the branch of the motion which is to dismiss the appeal on the ground that it has been rendered academic is denied. MASTRO, J.P., COHEN, CHRISTOPHER and WOOTEN, JJ., concur. By Scheinkman, P.J.; Mastro, Balkin, Hinds-Radix, JJ. IN THE MATTER OF STEPHEN C. MAHONEY, res, v. SIBIA B. RAMOS-ORTIZ, app (Index No. V-5367-17) Salihah R. Denman, Harrison, NY, for appellant. Christopher E. Gurda, Middletown, NY, for respondent. Theoni Stamos-Salotto, Hopewell Junction, NY, attorney for the child. In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated October 18, 2018. The order, insofar as appealed from, after a hearing, awarded the father physical custody of the parties’ child. ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements. The parties are the parents of one child, who was born in 2011. In 2017, the father commenced this proceeding seeking custody of the child. After a hearing that included the testimony of both parents and an in camera interview with the child, the Family Court awarded the mother and the father joint legal custody of the child, with physical custody to the father. The mother appeals from so much of the order as awarded the father physical custody of the child. “‘The court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child’” (Matter of Gooler v. Gooler, 107 AD3d 712, 712, quoting Matter of Julie v. Will, 73 AD3d 777, 777; see Eschbach v. Eschbach, 56 NY2d 167, 171). In determining an initial petition for child custody, the court must consider, among other things, “(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent’s relative fitness, including his or her ability to guide the child, provide for the child’s overall well being, and foster the child’s relationship with the noncustodial parent; and (5) the child’s desires” (Matter of Supangkat v. Torres, 101 AD3d 889, 890). Custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, and therefore, deference is accorded to the trial court’s findings in this regard (see Matter of Gooler v. Gooler, 107 AD3d at 712). Such findings will not be disturbed unless they lack a sound and substantial basis in the record (see id.; see also Matter of Frankiv v. Kalitka, 105 AD3d 1045). Here, the Family Court’s determination that the child’s best interest would be served by awarding physical custody to the father has a sound and substantial basis in the record and will not be disturbed (see Matter of Gooler v. Gooler, 107 AD3d 712; Matter of Gasby v. Chung, 88 AD3d 709; Matter of Quinones v. Gonzalez, 79 AD3d 893). SCHEINKMAN, P.J., MASTRO, BALKIN and HINDS-RADIX, JJ., concur. By Chambers, J.P.; Roman, Barros, Christopher, JJ. THE PEOPLE, ETC., res, v. DYLAN LENTINI, app (Index No. 15-497) Dylan Lentini, Attica, NY, appellant pro se. Thomas E. Walsh II, District Attorney, New City, NY (Carrie A. Ciganek of counsel), for respondent. Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated May 15, 2019 (People v. Lentini, 172 AD3d 1099), affirming a judgment of the Supreme Court, Rockland County, rendered November 29, 2016. ORDERED that the application is denied. The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277). CHAMBERS, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur. By Scheinkman, P.J.; Cohen, Lasalle, Wooten, JJ. MARY P. RICCIO, app, v. GENWORTH FINANCIAL, ET AL., res, ET AL., def (Index No. 11790/14) John L. O’Kelly, East Williston, NY, for appellant. Drinker Biddle & Reath LLP, New York, NY (Robert J. Mancuso of counsel), for respondent Genworth Life Insurance Company of New York, sued herein as Genworth Financial, Genworth Life & Annuity, Genworth Life, and Genworth Life of New York. Lazer, Aptheker, Rosella & Yedid, P.C., Melville, NY (Joseph C. Savino and Jennifer L. Silvestro of counsel), for respondent Capital One, N.A. In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Julianne T. Capetola, J.), dated October 3, 2017. The order, insofar as appealed from, granted the motion of the defendant Genworth Life Insurance Company of New York, sued herein as Genworth Financial, Genworth Life & Annuity, Genworth Life, and Genworth Life of New York for summary judgment dismissing the amended complaint insofar as asserted against it, granted that branch of the motion of the defendant Capital One, N.A., which was for summary judgment dismissing the amended complaint insofar as asserted against it, denied the plaintiff’s motion for summary judgment on the amended complaint insofar as asserted against the defendant Genworth Life Insurance Company of New York, sued herein as Genworth Financial, Genworth Life & Annuity, Genworth Life, and Genworth Life of New York, and denied the plaintiff’s cross motion for summary judgment on the amended complaint insofar as asserted against the defendant Capital One, N.A. ORDERED that the order is affirmed insofar as appealed from, with one bill of costs. The plaintiff commenced this action, inter alia, to recover damages for breach of contract in connection with the alleged looting of her annuity account (hereinafter the account) by her daughter, the defendant Patricia A. Riccio (hereinafter Patty), by means of seven unauthorized telephone withdrawal requests made by Patty on the account. The plaintiff appeals from an order granting the motion of the defendant Genworth Life Insurance Company of New York, sued herein as Genworth Financial, Genworth Life & Annuity, Genworth Life, and Genworth Life of New York (hereinafter Genworth) for summary judgment dismissing the amended complaint insofar as asserted against it, granting that branch of the motion of the defendant Capital One, N.A. (hereinafter Capital One), which was for summary judgment dismissing the amended complaint insofar as asserted against it, denying the plaintiff’s motion for summary judgment on the amended complaint insofar as asserted against Genworth, and denying the plaintiff’s cross motion for summary judgment on the amended complaint insofar as asserted against Captial One. The plaintiff alleges that Genworth breached its contractual obligations to her by permitting Patty to become a third party on the account for purposes of the withdrawal of funds, and by allowing Patty to initiate unauthorized withdrawals of funds from the account by check. “‘The essential elements of a breach of contract cause of action are “the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of his or her contractual obligations, and damages resulting from the breach”‘” (Victory State Bank v. EMBA Hylan, LLC, 169 AD3d 963, 965, quoting Canzona v. Atanasio, 118 AD3d 837, 838; quoting Dee v. Rakower, 112 AD3d 204, 208-209). Genworth met its prima facie burden of demonstrating its entitlement to summary judgment dismissing the breach of contract cause of action insofar as asserted against it by furnishing evidence reflecting that Genworth strictly complied with the terms of the parties’ unambiguous contractual agreement, and precisely followed Genworth’s internal procedures in connection with same, such that it did not materially breach any agreement with the plaintiff (see e.g. Whitecap [US] Fund I, LP v. Siemens First Capital Commercial Fin. LLC, 121 AD3d 584, 591-592; Canzona v. Atanasio, 118 AD3d at 838-839; DB Mansfield LLC v. BNY Capital Funding LLC, 116 AD3d 636, 637; Jacobs v. Mostow, 69 AD3d 575, 576). Such evidence included, inter alia, (a) the annuity contract entered into between the plaintiff and Genworth; (b) a “Systematic or auto interest withdrawal request for fixed annuities,” signed by the plaintiff, authorizing Genworth to begin making monthly payments to the plaintiff in the amount of “$1,100.00 GROSS”; (c) a “Fixed annuity withdrawal authorization” (hereinafter the FAWA) form executed by the plaintiff, which modified the plaintiff’s original annuity contract so as to grant Patty telephone withdrawal authorization privileges, allowing Patty to request withdrawals from the account by check in any amount desired, gross or net, and initiated a fixed withdrawal in the amount of $10,000; (d) 21 recordings of telephone calls made to Genworth’s customer service department; and (e) relevant excerpts from the plaintiff’s deposition testimony. Genworth also established that the plaintiff was not overcharged as to early withdrawal charges, known as surrender charges. All fixed withdrawals from the account were made on a net basis, the contractual surrender charge was 7%, and the plaintiff’s annual account statement shows that no more than 7% in surrender charges was subtracted from her account balance for each net withdrawal. In opposition to Genworth’s prima facie showing with respect to the breach of contract cause of action, the plaintiff failed to raise a triable issue of fact. The plaintiff’s claim that she never authorized Patty to make withdrawals from the account is belied by the record as reflected in documents signed by the plaintiff as well as by the telephone recordings furnished by Genworth. The telephone recordings confirm that the plaintiff in fact signed the FAWA, which contains her signature. Moreover, contrary to the plaintiff’s contentions, an earlier election by the plaintiff in a separate form to receive her monthly systematic annuity payments by electronic funds transfer was both separate and apart from, and superseded by, the terms of the FAWA. As the telephone recordings demonstrate, the plaintiff authorized Patty to discuss her account with Genworth, agreed to sign the FAWA, and requested that Patty fax the signed FAWA to Genworth and cash the resulting check herself. The plaintiff participated in Patty’s first, second, and seventh telephone withdrawal phone calls to Genworth, as well as several other calls to Genworth regarding questions and concerns on the account. The plaintiff’s unsubstantiated and self-serving assertion that Patty may have forged her signature on both the FAWA and the checks from Genworth amounts to nothing more than a bald assertion of forgery that fails to raise a genuine issue of material fact (see Banco Popular N. Am. v. Victory Taxi Mgt., 1 NY3d 381, 383-384). The plaintiff’s name is signed on the FAWA, and the telephone recordings reflect her intention to execute the same. Moreover, the checks from Genworth all bear the plaintiff’s signature, the telephone recordings indicate that the plaintiff asked Patty whether the plaintiff could cash the checks, and the plaintiff acknowledged at her deposition that the plaintiff was present when the checks were cashed at a Pay-O-Matic check-cashing location, which undercuts the unsubstantiated claim of forgery. Therefore, we agree with the Supreme Court’s determination to grant Genworth’s motion for summary judgment dismissing the breach of contract cause of action insofar as asserted against it. The plaintiff’s contentions on appeal with respect to the negligence, gross negligence, and breach of fiduciary duty causes of action are all premised upon her allegation that in January 2014, a representative of Capital One called Genworth to warn about unauthorized withdrawals. However, the recording of the subject call demonstrates that the representative did not warn Genworth about any unauthorized withdrawals during that call, but rather, sought information based on a call from the plaintiff’s son, who helped her set up the annuity originally and was inquiring about making a fixed withdrawal of between five thousand and six thousand dollars. During the course of that call, the representative calling from Capital One learned from Genworth that several withdrawals had been made on the account, and that over $10,000 in surrender charges had been charged against the account. While the Capital One representative stated that he was surprised by the amounts that had been withdrawn, he did not once state that the withdrawals had not been authorized, surmising at times that something might have happened in the world of the plaintiff or that the withdrawals might be part of a strategy, and indicating that he would call them to discuss what he had learned from Genworth on the call. After the same Capital One representative later called Genworth back in March of 2014 to report that the plaintiff’s son had called Capital One alleging elder abuse by Patty as against the plaintiff and that Patty had stolen the funds from the account, Genworth immediately froze the account, and Patty made no further withdrawals. Accordingly, Genworth and Capital One made a prima facie showing of their entitlement to summary judgment dismissing the negligence, gross negligence, and breach of fiduciary duty causes of action insofar as asserted against each of them, and in opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). The plaintiff’s remaining contentions are without merit. SCHEINKMAN, P.J., COHEN, LASALLE and WOOTEN, JJ., concur. By Rivera, J.P.; Roman, Miller, Wooten, JJ. IN THE MATTER OF ROSA Y. A. P. (ANONYMOUS), res, v. JOSE B. P. T. (ANONYMOUS), app (Index No. P-14904-18, P-14905-18) Linda C. Braunsberg, Staten Island, NY, for appellant. Sandra M. Munoz, Jamaica, NY, for respondent. Joseph H. Rotkowitz, Flushing, NY, attorney for the children. In related proceedings pursuant to Family Court Act article 5, Jose B. P. T. appeals from an order of the Family Court, Queens County (Dweynie E. Paul, J.), dated June 7, 2019. The order, after a hearing, granted the petitions and adjudicated Jose B. P. T. to be the father of the subject children. ORDERED that the order is affirmed, without costs or disbursements. Jose B. P. T. (hereinafter the appellant) and the petitioner (hereinafter the mother), who are originally from the Dominican Republic, were in a intimate relationship, though never married, during the time of conception of both of the subject children. The children were born in the Dominican Republic in 2003 and 2004, respectively. At the time of their birth, the appellant recognized both children as his own, he was present at the hospital during their delivery, and he registered both children’s birth certificates, which list him as their father. Sometime during the children’s early childhood, the parties separated, but the appellant continued to support the children financially, and occasionally visited with the children on weekends and during the summer. The children would also visit with the appellant’s mother every summer, whom they identified as their grandmother. Both of the children know the appellant as their father. In or around 2016, the appellant emigrated to New York, and the mother and the children followed in February 2018. While in New York, the children spoke to the appellant over the phone, but they did not visit with him until July 2018. That same month the mother filed the instant petitions. During the proceedings, the appellant sought genetic marker testing. There is no evidence or claim that any other person could be the father of the children beyond the appellant’s claim that the mother has circulated a rumor that he is not the father, a claim the mother denies, and which the appellant asserts as the basis for requesting genetic marker testing. Following a hearing, the Family Court concluded that the appellant was equitably estopped from denying paternity, denied his application for genetic marker testing, and adjudicated him to be the children’s father. This appeal ensued. “‘Before a party can be estopped from denying paternity or from obtaining a DNA test that may establish that he is not the child’s biological parent, the court must be convinced that applying equitable estoppel is in the child’s best interest’” (Matter of Guy M.J. v. Abiola N.S., 158 AD3d 764, 765, quoting Matter of Commissioner of Social Servs. v. Julio J., 20 NY3d 995, 997; see Matter of Shondel J. v. Mark D., 7 NY3d 320, 327). Here, where the appellant had long-assumed the role of a parent, led the children to believe he was their father, and provided financial support to the children for most of their lives, we agree with the Family Court’s determination that it was in the children’s best interests to apply the doctrine of equitable estoppel (see Matter of Shondel J. v. Mark D., 7 NY3d at 327; Matter of Guy M.J. v. Abiola N.S., 158 AD3d at 765; Matter of Merritt v. Allen, 99 AD3d 1006, 1007). Neither the rumor allegedly perpetrated by the mother that the appellant was not the father, nor the deterioration of the appellant’s relationship with the children beginning around the time the petitions in this matter were filed, militate against the application of the doctrine of equitable estoppel (see Matter of Shondel J. v. Mark D., 7 NY3d at 331-332; Brian B. v. Dionne B., 267 AD2d 188, 188). The appellant’s remaining contentions are without merit. RIVERA, J.P., ROMAN, MILLER and WOOTEN, JJ., concur. By Dillon, J.P.; Maltese, Barros, Connolly, JJ. IN THE MATTER OF LEON HENRY, app, v. STEFANIE FIALA, res (Index No. V-1231-17, V-1232-17) Joseph H. Nivin, Forest Hills, NY, for appellant. Francine Scotto, Staten Island, NY, for respondent. Marc A. Berk, Staten Island, NY, attorney for the children. In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Richmond County (Peter F. DeLizzo, J.), dated February 27, 2019. The order, insofar as appealed from, after a hearing, denied the father’s petition, in effect, to modify a prior order of parental access of the same court. ORDERED that the order dated February 27, 2019, is affirmed insofar as appealed from, without costs or disbursements. An existing order of parental access may be modified only upon a showing that there has been such a change in circumstances since the issuance of the order that modification is necessary to ensure the continued best interests and welfare of the child (see Matter of Licato v. Jornet, 146 AD3d 787; Matter of Rogan v. Guida, 143 AD3d 830; Matter of Rambali v. Rambali, 102 AD3d 797). Moreover, because determinations with regard to parental access depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, this Court accords deference to the Family Court’s findings and will not set them aside unless they lack a sound and substantial basis in the record (see Matter of Clarke v. Wiltshire, 145 AD3d 776). Furthermore, considerable deference must be accorded to the court’s assessment of the parties, inasmuch as the assessment rests on that court’s superior position to evaluate the witnesses’ demeanor and credibility (see Matter of Wright v. Stewart, 131 AD3d 1256; Matter of Santano v. Cezair, 106 AD3d 1097). When determining issues of custody and parental access, the most important factor to be considered is the best interests of the child (see Eschbach v. Eschbach, 56 NY2d 167, 171; Matter of Jules v. Corriette, 76 AD3d 1016). Here, there is a sound and substantial basis in the record for the Family Court’s determination to deny the father’s petition, in effect, to modify the prior order of parental access so as to allow him unsupervised parental access with the children. Accordingly, the court’s determination will not be disturbed. DILLON, J.P., MALTESE, BARROS and CONNOLLY, JJ., concur. By Balkin, J.P.; Roman, Cohen, Wooten, JJ. THE PEOPLE, ETC., res, v. CARLOS ROMERO, app (Index No. 399-09) Carlos Romero, Coxsackie, NY, appellant pro se. Timothy D. Sini, District Attorney, Riverhead, NY (Grazia DiVincenzo of counsel), for respondent. Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), former appellate counsel. Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated December 12, 2012 (People v. Romero, 101 AD3d 906), affirming a judgment of the County Court, Suffolk County, rendered January 14, 2010. ORDERED that the application is denied. The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277). BALKIN, J.P., ROMAN, COHEN and WOOTEN, JJ., concur. By Dillon, J.P.; Balkin, Cohen, Barros, JJ. THE PEOPLE, ETC., res, v. JAMES GOODMAN, app (Index No. 11772/09) James Goodman, Malone, NY, appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Thomas M. Ross, and Terrence F. Heller of counsel), for respondent. Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated August 13, 2014 (People v. Goodman, 120 AD3d 587), affirming a judgment of the Supreme Court, Kings County, rendered February 28, 2011. ORDERED that the application is denied. The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277). DILLON, J.P., BALKIN, COHEN and BARROS, JJ., concur. By Rivera, J.P.; Austin, Lasalle, Connolly, JJ. IN THE MATTER OF ADAM MORALES, pet, v. MADELINE SINGAS, ETC., ET AL., res Adam Morales, West Hempstead, NY, petitioner pro se. Madeline Singas, District Attorney, Hempstead, NY (Michelle Burke of counsel), respondent pro se. Letitia James, Attorney General, New York, NY (Charles F. Sanders of counsel), for respondent Douglas J. Lerose. Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition and mandamus to prohibit the respondents from proceeding with an underlying criminal prosecution entitled People v. Morales, pending in the District Court, Nassau County, under Indictment No. CR-021434-18NA, and to compel the respondents to dismiss the criminal charges in that action. ADJUDGED that the petition and the proceeding are dismissed, without costs or disbursements. This Court does not have subject matter jurisdiction to entertain this proceeding (see CPLR 7804[b]; 506[b]; Matter of Nolan v. Lungen, 61 NY2d 788, 789-790; Matter of Wheeler v. Kahn, 153 AD3d 926, 927; Matter of Canestro v. Pineda-Kirwan, 132 AD3d 863, 863). RIVERA, J.P., AUSTIN, LASALLE and CONNOLLY, JJ., concur. By Scheinkman, P.J.; Mastro, Rivera, Dillon, Roman, JJ. IN THE MATTER OF KELLY DOUGLAS TALCOTT, A SUSPENDED ATTORNEY. GRIEVANCE COMMITTEE FOR THE TENTH JUDICIAL DISTRICT, pet; KELLY DOUGLAS TALCOTT, res (Index No. 2256097) On the Court’s own motion, it is ORDERED that the opinion and order of this Court dated May 27, 2020, in the above-entitled case is recalled and vacated, and the following opinion and order is substituted therefor: The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on March 1, 1989. By order to show cause dated July 29, 2019, the respondent was directed to show cause why a final order of suspension, censure, or disbarment should not be made based on his conviction of a serious crime. In addition, the respondent was immediately suspended from the practice of law pursuant to Judiciary Law 90(4)(f) and 22 NYCRR 1240.12(c)(2)(ii), based upon his conviction of a serious crime, continuing until further order of this Court. Catherine A. Sheridan, Hauppauge, NY (Ian P. Barry of counsel), for petitioner. PER CURIAM. On September 16, 2010, in the County Court, Nassau County, the respondent was convicted, upon a plea of guilty, of criminal tax fraud in the fifth degree, in violation of Tax Law 1802, a class A misdemeanor, and was sentenced to a one-year conditional discharge, and directed to pay $98,470 in restitution and a $5,000 fine, which were both paid. The respondent’s plea of guilty was made in satisfaction of two underlying indictments, the first charging him with criminal tax fraud in the third degree (Tax Law 1804), a class D felony, for failing to file a tax return for the year 2008, and the second charging him with repeated failure to file personal income taxes (Tax Law 1808[a]), a class E felony, for failing to file a tax return for the years 2002, 2003, 2004, and 2005, with the intent to evade tax payment due for each tax year. In entering his plea of guilty, the respondent admitted that he “did, in fact, defraud New York State Government by failing to pay taxes as required under the law.” Despite being served personally with this Court’s order to show cause dated July 29, 2019, the respondent has neither served a response nor requested additional time to do so. In determining the appropriate measure of final discipline, this Court notes that the respondent’s plea of guilty was made in satisfaction of two felony charges, and he failed to honor his tax obligations over a prolonged period, totaling five tax years. Such a repeated failure to file taxes evidences a pattern of conduct that cannot be characterized as aberrational. This Court also views the respondent’s complete failure to participate in this matter as an aggravating factor, particularly in light of his failure to inform this Court of his 2010 conviction, as required by Judiciary Law 90(4)(c). The one mitigating factor drawn from the record, and considered by this Court, is that the respondent has no prior disciplinary history. Under the totality of the circumstances, we find that a suspension from the practice of law for a period of one year is warranted, effective immediately, without credit for the time the respondent has already served under the interim suspension imposed by this Court by the order of this Court dated July 29, 2019 (see Matter of Eagan, 142 AD3d 182; Matter of Gamliel, 122 AD3d 125; Matter of Tartaglia, 66 AD3d 10). SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and ROMAN, JJ., concur. ORDERED that the respondent, Kelly Douglas Talcott, is suspended from the practice of law for a period of one year, effective immediately, and continuing until further order of this Court. The respondent shall not apply for reinstatement earlier than March 3, 2021. In such application (see 22 NYCRR 691.11, 1240.16), the respondent shall furnish satisfactory proof that during said period he (1) refrained from practicing or attempting to practice law, (2) fully complied with this opinion and order and with the terms and provisions of the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15), (3) complied with the applicable continuing legal education requirements of 22 NYCRR 691.11, and (4) otherwise properly conducted himself; and it is further, ORDERED that the respondent, Kelly Douglas Talcott, shall continue to comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); and it is further, ORDERED that pursuant to Judiciary Law 90, during the period of suspension and until further order of this Court, the respondent, Kelly Douglas Talcott, is commanded to continue to desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further, ORDERED that if the respondent, Kelly Douglas Talcott, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 1240.15(f). By Dillon, J.P.; Leventhal, Connolly, Christopher, JJ. THE PEOPLE, ETC., res, v. D. A. (ANONYMOUS), app (Index Nos. 2721/16, 9985/16) Motion by the appellant, in effect, to recall and vacate a decision and order of this Court dated March 6, 2019 (170 AD3d 739), which determined appeals from two judgments of the Supreme Court, Kings County (Cassandra Mullen, J.), both rendered February 8, 2017, and to amend the caption to make it anonymous. Upon the papers filed in support of the motion and the papers filed in relation thereto, it is ORDERED that the motion is granted, the decision and order of this Court dated March 6, 2019, is recalled and vacated, the caption is amended, and the following decision and order is substituted for the prior decision and order: Paul Skip Laisure, New York, NY (Alice R. B. Cullina of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross of counsel; Ruby D. Andrade on the brief), for respondent. Appeals by the defendant from two judgments of the Supreme Court, Kings County (Cassandra Mullen, J.), both rendered February 8, 2017, convicting him of criminal possession of a firearm under Indictment No. 2721/16, and attempted criminal possession of a weapon in the second degree under Indictment No. 9985/16, upon his pleas of guilty, and imposing sentences. ORDERED that the judgment rendered under Indictment No. 2721/16 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, Kings County, for further proceedings consistent herewith; and it is further, ORDERED that the judgment rendered under Indictment No. 9985/16 is affirmed. The defendant pleaded guilty under Kings County Indictment No. 2721/16 to criminal possession of a firearm for acts he committed when he was 18 years old. The defendant pleaded guilty under Kings County Indictment No. 9985/16 to attempted criminal possession of a weapon in the second degree for acts he committed when he was 19 years old. The Supreme Court sentenced the defendant under both indictments on February 8, 2017. The defendant appeals from both judgments. “CPL 720.20(1) provides, in relevant part, that upon the conviction of an eligible youth, ‘at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender’” (People v. Hall, 160 AD3d 896, 896, quoting CPL 720.20[1]). “Compliance with this statutory mandate requires that the sentencing court actually consider and make a determination of whether an eligible youth is entitled to youthful offender treatment, ‘even where [the] defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request’” (People v. Hall, 160 AD3d at 896-897, quoting People v. Rudolph, 21 NY3d 497, 499). Here, as the People correctly concede, the defendant “was a youth eligible to be found a youthful offender” with respect to his conviction of criminal possession of a firearm, “and the record does not demonstrate that the Supreme Court considered and determined whether the defendant should be afforded youthful offender status” (People v. Hall, 160 AD3d at 897). “Where, as here, the sentencing court failed to comply with CPL 720.20, this Court must vacate the sentence and remit the matter to the sentencing court for resentencing after determining whether the defendant should be treated as a youthful offender” (People v. Thomas, 157 AD3d 723, 724-725). Contrary to the People’s contention, holding the appeal in abeyance pending a youthful offender determination is not appropriate in this case, as the defendant has not yet completed his sentence and there is no issue on appeal that we do not decide herein (see id. at 725). The defendant contends that the Supreme Court lacked the authority to issue an order of protection at the time of sentencing, as the individual named in the order of protection was not a victim, victim’s relative or household member, or witness as defined by CPL 530.13(4). However, the defendant failed to preserve this argument for appellate review (see CPL 470.05[2]; People v. May, 138 AD3d 1146, 1147), and we decline to review it in the exercise of our interest of justice jurisdiction since the defendant agreed to the issuance of an order of protection as part of his plea agreement (see People v. Smith, 83 AD3d 1213, 1214). “A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v. Lopez, 6 NY3d 248, 256; see People v. Daniels, 160 AD3d 979, 980; People v. Pressley, 116 AD3d 794, 795-796). An appeal waiver is made knowingly, intelligently, and voluntarily where “a defendant has a full appreciation of the consequences of such waiver” (People v. Brown, 122 AD3d 133, 136 [internal quotation marks omitted]). Here, the People correctly concede that the record does not demonstrate that the defendant knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Lopez, 6 NY3d at 256). In light of the defendant’s age, ninth grade education, and lack of experience with the criminal justice system, the Supreme Court’s cursory colloquy regarding the appeal waiver was insufficient (see e.g. People v. Fuller, 163 AD3d 715, 715). The court twice improperly suggested that the appeal waiver was mandatory, failed to explain the defendant’s right to appeal and the consequences of waiving that right, and did not ensure that the defendant understood that his right to appeal was separate from the rights that he would automatically forfeit upon pleading guilty (see People v. Lopez, 6 NY3d at 256; People v. Daniels, 160 AD3d at 980; People v. Brown, 122 AD3d at 141-142). Although the defendant was represented by counsel, his attorney “did not participate during the proceedings other than to acknowledge to the court that he was the defendant’s attorney, and counsel did not sign the defendant’s written appeal waiver form[s]” (People v. Latham, 162 AD3d 1068, 1070). Nor did the fact that the court asked the defendant if his attorney had spoken to him about the appeal waiver demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, as it is not “ sufficient for the trial court to defer to the defendant’s off-the-record conversations with defense counsel by merely confirming with defense counsel that he or she has discussed the waiver of the right to appeal with the defendant” (People v. Brown, 122 AD3d at 141). Finally, “although the record on appeal reflects that the defendant signed the written appeal waiver form[s], a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal” (People v. Latham, 162 AD3d at 1070 [internal quotation marks omitted]). Thus, the appeal waiver does not preclude review of the defendant’s claim that his sentence under Indictment No. 9985/16 was excessive. However, the sentence imposed under that indictment was not excessive (see People v. Suitte, 90 AD2d 80). DILLON, J.P., LEVENTHAL, CONNOLLY and CHRISTOPHER, JJ., concur.