Appellate Division, First Department: March 20, 2023

Appeals List released on: March 16, 2023 By Friedman, J.P., González, Kennedy, Shulman, Pitt-Burke, JJ. 651088/19.    SHAHID BUTTAR ET AL., plf-res, v. ELITE LIMOUSINE PLUS, INC., ET AL., def-app, FIRST CORPORATE SEDANS, INC., et al., def — Tuch & Cohen LLP, Westbury (Laurence I. Cohen of counsel), for appellants — Slarskey LLC, New York (Evan Fried of counsel), for respondents — Order, Supreme Court, New York County (Melissa Crane, J.), entered June 16, 2022, which denied defendants Elite Limousine Plus, Inc. and Shafquat Chaudhary’s (collectively Elite defendants) motion to vacate or modify the court’s prior order denying discovery of plaintiffs’ collateral sources of income, unanimously affirmed, with costs. The motion court providently denied the Elite defendants’ motion to vacate or modify an order denying discovery of tax documents associated with plaintiffs’ collateral employment (see Yong F. Ke v. 85 Fourth Ave., Inc., 2009 WL 1058627, *4, 2009 US Dist LEXIS 33250, *15 [SD NY, Apr. 20, 2009, No. 07 Civ 6897(BSJ)(JCF)]; see also Matter of Monaco, 117 AD3d 1593, 1594 [4th Dept 2014], appeal dismissed 24 NY3d 943 [2014]). Plaintiffs, livery cab drivers, do not make a general claim of lost earnings and therefore did not put their entire incomes at issue (see Picart v. New York City Tr. Auth., 226 AD2d 165, 165-166 [1st Dept 1996]; Ortiz v. Mary Immaculate Hosp., 48 AD2d 704, 704 [2d Dept 1975]). Instead, plaintiffs claim that the Elite defendants violated the terms of their franchise agreements by manipulating their software to dispatch and favor drivers who were connected to defendant Chaudhary, Elite’s president. Accordingly, information concerning whether plaintiffs accepted employment from other companies is irrelevant to the Elite defendants’ defense against plaintiffs’ claims. Furthermore, the Elite defendants can defend against plaintiffs’ claims using already disclosed income tax returns, 1099s generated by Elite and defendant First Corporate Sedans, Inc., and data from Elite’s own software that tracked driver log-in and log-out times, assignments, and job wait times. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Friedman, J.P., González, Kennedy, Shulman, Pitt-Burke, JJ. 33475/18E.    MURRAY CLENDENIN, plf-res, v. VOA OF AMERICA — GREATER NEW YORK INC, DOING BUSINESS AS VOLUNTEERS OF AMERICA, SANFORD LEWIS, ET AL., def-app — Bond, Schoeneck & King, PLLC, Garden City (Jessica C. Moller of counsel), for appellants — Order, Supreme Court, Bronx County (Kim Adair Wilson, J.), entered March 15, 2022, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, and the motion granted, without costs. The Clerk is directed to enter judgment accordingly. Defendants established prima facie entitlement to summary judgment dismissing plaintiff’s complaint alleging retaliation in violation of Labor Law §740, the Whistleblower Law. Defendants showed that plaintiff failed to proffer any admissible evidence raising a triable issue of fact as to whether an actual violation occurred, as opposed to plaintiff’s reasonable belief that a violation occurred (see Webb-Weber v. Community Action for Health Servs., Inc., 23 NY3d 448, 453-54 [2014]). Indeed, in his response to defendants’ interrogatory requesting that he identify every law, rule, or regulation that defendants allegedly violated, plaintiff simply pointed back to the “legal causes of action alleged in [his] complaint,” which contained only one cause of action under §740. In opposition to defendant’s motion, plaintiff failed to raise an issue of fact. Although plaintiff has asserted that defendants violated the employee handbook governing employees of defendant VOA of America — Greater New York Inc., this assertion is insufficient to support his §740 claim, as a plaintiff must demonstrate an actual violation of law to sustain a cause of action under that section of the Labor Law (Green v. Saratoga A.R.C., 233 AD2d 821, 822 [3d Dept 1996]). Defendants’ motion is not premature, as plaintiff has not demonstrated that facts essential to support opposition to the motion may exist but could not be stated without disclosure of particular information (see Mayorga v. 75 Plaza LLC, 191 AD3d 606, 608 [1st Dept 2021]; Guerrero v. Milla, 135 AD3d 635, 636 [1st Dept 2016]). We note that Labor Law §740 was amended to, among other things, protect employees who disclose or threaten to disclose a practice that an employee “reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety” (Labor Law §740 [2][a]). However, the amendments became effective on January 26, 2022, well after plaintiff made his complaints to defendants or commenced this action. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Webber, J.P., Oing, Scarpulla, Mendez, Rodriguez, JJ. 153384/18.    DR. SPRING COOPER, plf-app, v. RYAN BROEMS, def-res, CALIDADDY26 ET AL., def — Daniel Szalkiewicz & Associates, P.C., New York (Daniel S. Szalkiewicz of counsel), for appellant — Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered March 8, 2022, which denied plaintiff’s motion to vacate and restore the action, unanimously reversed, on the law, without costs, the motion granted, and the complaint reinstated. Appeals from orders, same court and Justice, entered February 4, 2022 and March 22, 2022, unanimously dismissed, without costs, as taken from nonappealable papers. Supreme Court improvidently exercised its discretion in denying the unopposed motion to vacate dismissal order, as plaintiff gave both a reasonable excuse for her default and a potentially meritorious claim (Pena v. Pinnacle Assoc. II NY LLC, 178 AD3d 407, 407 [1st Dept 2019]). Plaintiff presented a substantiated excuse of law office failure in the form of an affirmation from counsel, along with a copy of counsel’s office electronic calendar showing that his office had inadvertently failed to calendar the due date on which they were to update the court on the progress of discovery (see Melikov v. 66 Overlook Terrace Corp., 211 AD3d 537, 538 [1st Dept 2022]; Willner v. S Norsel Realties LLC, 206 AD3d 545, 545-546 [1st Dept 2022]; see Pena, 178 AD3d at 407). Plaintiff also showed that she was actively prosecuting the claims. In addition, plaintiff submitted evidence supporting a potentially meritorious claim by submitting the plea minutes from the attendant criminal case where defendant admitted to the actions complained of (see Winters v. Atlantic Dev. Corp., 205 AD3d 447, 447 [1st Dept 2022]). Under these circumstances, dismissal of the action unfairly penalized only plaintiff (see Melikov, 211 AD3d at 538; Genesis R. v. City of New York, 162 AD3d 471, 472 [1st Dept 2018]). Vacating the dismissal order is consistent with the public policy of this State to dispose of cases on their merits (Harwood v. Chaliha, 291 AD2d 234, 234 [1st Dept 2002]), and upholds the principle that a trial court’s power to dismiss an action sua sponte should be used “sparingly and only in extraordinary circumstances” (Grant v. Rattoballi, 57 AD3d 272, 273 [1st Dept 2008]; see Mateo v. City of New York, 274 AD2d 337, 337 [1st Dept 2000]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Manzanet-Daniels, J.P., Kapnick, Singh, Mendez, Rodriguez, JJ. 655821/21.    FLORENCE CAPITAL ADVISORS, LLC ET AL., plf-app-res, v. THOMPSON FLANAGAN & CO., LLC, def-res-app — AXIS INSURANCE COMPANY ET AL., def-res — Kim & Serritella, LLP, New York (James R. Serritella of counsel), for appellants-respondents — Milber Makris Plousadis & Seiden, LLP, Woodbury (Sarah M. Ziolkowski of counsel), for respondent-appellant — Wiley Rein LLP, Washington, DC (Jason P. Cronic of the bar of the District of Columbia admitted pro hac vice of counsel), for AXIS Insurance Company, respondent — Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for World Insurance Associates LLC, respondent — Order, Supreme Court, New York County (Jennifer Schecter, J.), entered June 23, 2022, which, to the extent appealed from, granted defendant-respondent AXIS Insurance Company’s (AXIS) motion to dismiss the first amended complaint as against it and declared it has no duty to defend or indemnify plaintiffs in an underlying California action, granted in part the motions of defendants Thompson Flanagan & Co., LLC (Thompson Flanagan) and World Insurance Associates LLC (WIA) to dismiss the sixth (declaratory judgment), seventh (negligence), and ninth (breach of fiduciary duty) causes of action, and denied Thompson Flanagan’s motion as to the eighth (breach of contract) cause of action, unanimously modified, on the law, to reinstate the seventh cause of action for negligence against Thompson Flanagan and WIA, and otherwise affirmed, without costs. This complaint arises out of (i) AXIS’s alleged improper denial of insurance coverage to plaintiffs based on its reliance on exclusions that it added to Florence’s insurance policies upon renewal, which it allegedly did in bad faith and without giving notice to Florence of the coverage reductions and increased retentions, in violation of New York Insurance Law §3426; and (ii) the procurement by Florence’s insurance brokers of insufficient professional liability coverage, and their failure to properly advise Florence of the changes under AXIS’s renewal insurance policies. The complaint was correctly dismissed as to AXIS, because even if there had been a violation of Insurance Law §3426 when the Hedge Fund Exclusion was added to the 2018 policy, coverage would have been afforded for only one additional policy period, not the 2020 policy period after that, when the claim was made and denied under the exclusion (see Insurance Law §3426[e][5][C][i] ["In the event that a late conditional renewal notice or a late nonrenewal notice is provided by the insurer on or after the expiration date of the policy, coverage shall remain in effect on the same terms and conditions of the expiring policy for another required policy period"] [emphasis added]). “[C]ourts around the country have disfavored notions of perpetual coverage and have held that an improperly canceled or non-renewed policy may be extended to the end of the policy term and for no longer than one additional renewal term” (House v. Hartford Cas. Ins. Co., 189 AD3d 1556, 1557 [2d Dept 2020], citing Zeman v. Zack Agency, 75 AD2d 261, 267 [2d Dept 1980], and Canora Family, Inc., v. Universal Underwriters Ins. Co., 2007 WL 1789017, *4, 2007 US Dist LEXIS 44939, *10 [SD NY June 20, 2007, No. 06 Civ 15418 (CLB)], affd 30 Fed Appx 914 [2d Cir 2008]). Plaintiffs’ reliance on the Second Department case of Essex Ins. Co. v. George E. Vickers, Jr. Enters., Inc. (103 AD3d 684, 689 [2d Dept 2013]) to argue that the Hedge Fund Exclusion contained in the 2020 policy is unenforceable is misplaced. There, in connection with a commercial liability insurance policy, the general contractor added the owners as additional insureds on the policy for a one-year period. Thereafter, despite the contractor’s requests that the owners be maintained as additional insureds for the next two subsequent policy periods, the insurer failed to do so. The Second Department found that the owners met their prima facie burden on their counterclaim for reformation of the policy to include them as additional insureds by “showing a mutual mistake by clear and convincing evidence” and noted that “the plaintiff [insurer] failed to proffer any evidence establishing that its failure to provide the requested coverage was anything other than mistake” (Essex, 103 AD3d at 688 [internal quotation marks omitted]). The Court’s additional discussion and finding that the insurer did not comply with Insurance Law §3426 is secondary to its finding of mutual mistake that warranted reformation of the policy. In the instant matter, unlike Essex, plaintiffs did not plead a cause of action for reformation and raised it for the first time on appeal. In addition, there are no facts to suggest mutual mistake here. Rather, the record shows that AXIS expressly indicated in its quote for the 2018 policy that it was including a “new” Hedge Fund Exclusion. Thus, the facts here are distinguishable from Essex and do not support a finding that the Hedge Fund Exclusion contained in the 2020 policy is unenforceable. However, Supreme Court improperly dismissed plaintiffs’ causes of action for negligence against Thompson Flanagan and WIA, the brokers. Plaintiffs sufficiently pleaded a cause of action for negligence against the brokers which was distinct and not duplicative of their breach of contract claim. “‘The law is reasonably settled…that insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so’” (Utica First Ins. Co. v. Floyd Holding, 5 AD3d 762, 763 [2d Dept 2004], quoting Murphy v. Kuhn, 90 NY2d 266, 270 [1997]). Thus, “‘a party who has engaged a person to act as an insurance broker to procure adequate insurance is entitled to recover damages [for breach of contract] from the broker if the policy obtained does not cover a loss for which the broker contracted to provide insurance, and the insurance company refuses to cover the loss’” (Broecker v. Conklin Prop., LLC, 189 AD3d 751, 753 [2d Dept 2020], quoting Bruckmann, Rosser, Sherrill & Co., L.P. v. Marsh USA, Inc., 65 AD3d 865, 866 [1st Dept 2009]). Additionally, “[a]n insurance agent or broker can be held liable in negligence if he or she fails to exercise due care in an insurance brokerage transaction” and “[t]hus, a plaintiff may seek to hold a defendant broker liable under a theory of either negligence or breach of contract” (Bruckmann, 65 AD3d at 866). Here, in addition to alleging both brokers breached a contract to procure adequate insurance coverage, plaintiffs also assert that they failed to inform them of the definitions and terms of the policy. The latter allegations implicate a duty and potential breach by the brokers independent from the contract (Houston Cas. Co. v. Cavan Corp. of NY, 161 AD3d 427, 428 [1st Dept 2018]). The breach of fiduciary duty cause of action was correctly dismissed as the facts established that the parties had nothing more than a typical insurance broker-customer relationship (see Dae Assoc., LLC v. AXA Art Ins. Corp, 158 AD3d 493, 494 [1st Dept 2018]; Bruckmann, 65 AD3d at 867; Batas v. Prudential Ins. Co. of Am., 281 AD2d 260, 264 [1st Dept 2001]). The declaratory judgment cause of action fails because the existing claims for negligence and breach of contract provided full and complete relief (see James v. Alderton Dock Yards., 256 NY 298, 305 [1931]; Moghtaderi v. Apis Capital Advisors, 205 AD3d 504, 506 [1st Dept 2022]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Kapnick, J.P., Friedman, Gesmer, Moulton, Mendez, JJ. 26843/20.    TANYA GONZALEZ, plf-res, v. DALY IV HOUSING DEVELOPMENT FUND COMPANY, INC., ET AL., def-app — Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellants — Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondent — Order, Supreme Court, Bronx County (Paul L. Alpert, J.), entered August 17, 2022, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Plaintiff seeks to recover for injuries she sustained when she fell on a stairway in a building owned and managed by defendants. Plaintiff testified at her deposition that she fell after stepping on a broken chip, three inches wide and deep, in the middle of the third step from the bottom of the stairway, which she circled on a photograph. In support of their motion for summary judgment, defendants submitted contemporaneous video footage of the accident that they assert contradicts plaintiff’s testimony, as well as still photographs culled from the video. We agree with plaintiff that this evidence does not conclusively demonstrate that the alleged defect had nothing to do with her fall, and that there is a triable issue of fact, inter alia, concerning the proximate cause of the accident. The grainy video and stills derived from it, taken from an angle, do not definitively show that plaintiff did not step on the alleged defect (see Derouen v. Savoy Park Owner L.L.C., 109 AD3d 706 [1st Dept 2013]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Kern, J.P., Gesmer, Scarpulla, Rodriguez, JJ. 500294/2018.    IN THE MATTER OF EDGAR V.L., AN INCAPACITATED PERSON. ALISON L., pet-res, v. RACHIDA NACIRI, res-app, JUDY S. MOCK, ESQ., Guardian-app, GARY ELIAS, ESQ., Court-Appointed Counsel-app — Akerman LLP, New York (Donald N. David and Paul J. Collins of counsel), for Rachida Naciri, appellant — Abrams, Fensterman, LLP, Brooklyn (Robert Abrams and Jeffrey R. Neuman of counsel), for Judy C. Mock, appellant — Lewis Brisbois Bisgaard & Smith LLP, New York (Mark K. Anesh of counsel), for Gary Elias, appellant — Farrell Fritz, P.C., Uniondale (Frank T. Santoro of counsel), for Alison L., respondent — Meenan & Associates, LLC, New York (Coleen M. Meenan and Lissett C. Ferreira of counsel), for Special Guardian Lissett C. Ferreira, respondent — Orders, Supreme Court, New York County (Carol Sharpe, J.), entered on or about August 24, 2021, on or about February 24, 2022, and on or about March 8,2022, which appointed a Special Guardian to Incapacitated Person Edgar V.L. (IP), removed Judy S. Mock, Esq. as court-appointed guardian and discharged Gary Elias, Esq. as court-appointed counsel, and appointed Donald Duboulay, Esq. as successor counsel and Katherine B. Huang, Esq. as successor guardian, unanimously affirmed, without costs. Appeals from order, same court and Justice, entered on or about June 21, 2022, which, to the extent appealed from as limited by the briefs, directed the parties to appear for a hearing on the Special Guardian’s motion to remove Mock as guardian and discharge Elias as counsel, unanimously dismissed, without costs, as moot. On October 2, 2018, Alison L., the sister and only sibling of Edgar V.L., brought a petition for the appointment of an article 81 guardian for her then 74-year-old brother. The petition alleged that Edgar, who is wealthy, but suffers from mental health issues and has some physical limitations, was the victim of systematic financial exploitation by Rachida Naciri. Naciri filed a cross petition to dismiss Alison’s petition, or in the alternative to have herself appointed as Edgar’s guardian. A court evaluator (Britt Burner) was appointed on October 2, 2018, appellant Gary Elias was appointed as Edgar’s attorney, and appellant Judy S. Mock was appointed as Edgar’s temporary guardian of the person and property. Burner prepared both an initial and supplemental report after meeting with Edgar on four separate occasions. Burner interviewed Edgar, Naciri, Edgar’s home health aides, including his full-time home health aide (Robert Hicks), the managing agent of the building where Edgar lives (Rebecca Farley), and others. She also obtained a list of his medications, financial information, and spoke to Mock. During Burner’s first interview with Edgar, on October 16, 2018, she learned that on October 11th, nine days after the petition was filed and after a temporary guardian was appointed, Naciri and Edgar entered into a prenuptial agreement. Naciri assured Burner that she and Edgar had no intention of getting married. The prenuptial agreement provides that Naciri will receive $10 million if they divorce, no matter how long the duration of the marriage, and $20 million if they are still married when Edgar dies. Edgar recalled no details about the prenuptial agreement, nor could he remember who prepared it. Notwithstanding Naciri’s assurances to Burner on October 16th, that she and Edgar had no plans to marry, a wedding took place just two days later, on October 18th, at City Hall. Naciri later explained that she did not tell Burner about the wedding because she did not know they would be getting married. According to Naciri, Edgar “surprised” her by proposing. Hicks, the only other wedding attendant, provided a very different account of the wedding day events. He said that Naciri told Edgar that day that she had a “surprise” for him, but refused to tell him what it was. The three of them went to Tavern on the Green, and afterwards proceeded to City Hall. Once there, Naciri reminded Edgar that he had always wanted her to marry him. She then told him the surprise was that “I want to marry you.” When Burner asked Edgar about the wedding day, he denied being married. When Burner pointed to his wedding band, he said he had gotten married in Paris. Burner learned from Hicks that Naciri frequently quizzed Edgar on certain pieces of information, such as when they were married, his medication, and the year and day of the week, before his meetings with Burner. Hicks also said that Naciri attends Edgar’s therapeutic sessions with his psychiatrist, Dr. Bryan J. Bruno. Hicks told Burner that Naciri never stays at the apartment overnight and that she did not spend the wedding night with Edgar. On holidays, Naciri typically stops by for an hour or so, but then she leaves. Burner also learned that Edgar gave Naciri a $90,000 wedding gift which, according to Naciri, was Edgar’s idea. In that same month, October 2018, there was an attempt to transfer $600,000 from one of Edgar’s investment accounts to a checking account. The transfer was flagged by the bank and failed. Edgar had no recollection of the transfer, had no idea why he would have tried to transfer that much money, or what it would have been for. A registered nurse (Heather Sullivan) who provided care to Edgar told Burner that Naciri sometimes riled Edgar up, causing him to become verbally and physically abusive to his home health care workers. Other home health aides said Naciri was prone to screaming when she was angry and that this behavior, described by one aide as “toxic,” upsets Edgar and triggers violent episodes in him. Farley, the building’s managing agent said that Edgar had been urinating in the hallways of his building and had been walking around in just his bathrobe. Farley also recounted that on one occasion Edgar had wandered out to the street alone and had been found sitting at the cross walk. Edgar’s long-time friends told Burner they were concerned about Edgar’s rapid deterioration, describing him as looking drugged. One friend (Melinda Pillon) said that Edgar told her he was afraid of Naciri. Edgar once asked her to go with him to consult an attorney about getting a restraining order against Naciri, but Edgar did not pursue the matter. Pillon also said that when she last visited him, some eight months earlier, the apartment was in shambles and his bed was filled with crumbs. Jackie Swiskey, a long-time friend of 40 years, said that Edgar had “back and forth” feelings about Naciri; sometimes she was his big love, but at other times he was afraid of her. Swiskey said Edgar wanted to cancel an agreement he had signed giving Naciri monthly financial “compensation,” but when he went to his bank to stop the direct deposits, he was told he would need a lawyer.1 Burner learned from Alison that she and Edgar were not close, but that Edgar unexpectedly contacted her in April 2018, asking her to be his power of attorney. She agreed, but later learned that Naciri had been appointed his power of attorney instead. Alison said Pillon called her on Labor Day 2018 informing her that Edgar was in “crisis mode” but that Naciri would not let her into the apartment when Pillon went to check on him. Alison told Burner that Edgar’s doorman called her on a different occasion, saying that one time Edgar’s home health aide had run out of Edgar’s apartment screaming for someone to call the police. When the police arrived, they took Edgar to the hospital where he was involuntarily admitted to the psychiatric ward. Edgar’s doctor told Alison that Edgar might be suffering from dementia. In contrast to the information provided to Burner by others, Naciri said that she cares for Edgar 12 hours a day, every day, she cooks and cleans for him and also organizes his bills so he can pay them. Naciri said Edgar chose her to be his power of attorney because Alison never signed the necessary paperwork. Naciri’s attorney told Burner that Naciri and Edgar had been contemplating marriage for some time and that it was Edgar who chose the attorney that drafted their prenuptial agreement. Naciri denied attending Edgar’s psychiatric sessions with him, and she said that the “friends” who Burner had interviewed were only after Edgar’s money. Burner reported that even after her first interview with Edgar on October 16th, she believed that he did not have capacity to handle his financial or medical affairs. She reported that Edgar could not “adequately understand and appreciate the nature and consequences of his inability to provide for his personal needs and finances” and that he was “likely to suffer physical and financial harm” if a guardian was not appointed for him. Burner described how she had been unable to engage Edgar during their meetings or have any kind of meaningful conversation with him about his circumstances. Oftentimes Edgar sat mute and did not answer her questions. Burner expressed doubts that Edgar would be able to meaningfully participate in any hearing the court would hold. In her supplemental February 2019 report, Burner observed that although Edgar seemed improved and the apartment was in better shape, he was still largely unresponsive and profoundly confused. Burner observed that Edgar was susceptible to coaching. Burner ultimately recommended that a guardian be appointed for Edgar and that the appointment be for an unlimited duration. She also recommended that the “[g]uardian should investigate the circumstances surrounding whether Edgar had the capacity to enter into a prenuptial agreement and marriage with [Naciri], and…the payments being made from Edgar’s account….” Burner recommended that a geriatric care manager be appointed for Edgar and that the guardian file a bond. On February 14, 2019, the Hon. Tanya R. Kennedy began a testimonial hearing as to whether Edgar needed a guardian and if so, whether he had the capacity to consent to one. The court told the parties these initial proceedings were of a “narrow scope,” solely to determine whether Edgar needed a guardian, but not to address the alarming issues surrounding the recent prenuptial agreement and marriage. Judge Kennedy also stated that there were “collateral matters that the guardian would address,” adding that it was for the guardian to “make certain determinations regarding certain agreements.” Judge Kennedy initially found that Edgar lacked capacity to consent to a guardian. In doing so, the court described Edgar’s failure to recognize Mock, although he had met her several times before, and his inability to provide a cogent answer to the court’s inquiry about whether he thought he needed a guardian. Rather than answering, he simply referred to his attorney and said he (Edgar) had done nothing wrong. Edgar was confused as to time and place. When the court asked him where he was, he said a “tall building,” in lower Manhattan, but failed to realize he was in a courthouse. When asked about his marriage to Naciri, he answered that he had gotten married five weeks ago although it was four months earlier. Edgar also provided certain nonresponsive answers to the court’s inquiries, for instance volunteering that he was not allowed outside anymore because he had wandered about in his robe, been naked and had gone to a restaurant. At the continued hearing, held on May 6, 2019, to determine whether a guardian should actually be appointed, Edgar appeared just as confused about where he was, why he was there, and the identity of the other people present. Edgar mistook Mock, who was sitting next to him, for his wife. He could not cogently explain what he thought a guardianship is. Edgar was uncertain of his age and could not provide any details about how he cares for his person and property, although he did know the location of one of his bank accounts. Samantha Fox, a geriatric care manager, testified that Edgar had once mistaken her for Mock and he suffers from short term memory loss. She opined that Edgar cannot care for himself nor handle money. When the hearing concluded, the court granted Alison’s petition for a guardian of the person and the property. The attorneys agreed at the time, on the record, that the guardian should be Mock and, pursuant to an order and judgment dated September 23, 2019, Mock was so appointed. The same order continued Elias’s appointment as Edgar’s attorney. The order of appointment expressly authorized Mock to provide Edgar with a $2,000 monthly stipend so he can pay for tips and personal items, but did not authorize any specific payments to Naciri for spousal support (see Mental Hygiene Law §81.21[a][1], [2]). Despite Edgar’s functional limitations, and adjudication as an incapacitated person (IP), necessitating the appointment of a guardian, Naciri, Mock and Elias (collectively, appellants) contend that Judge Kennedy intended that Edgar would have as much self-determination as possible concerning his finances and how he spends his money, whereas Alison contends Edgar is being victimized and the guardian must protect him from predatory acts and persons, including Naciri. Mock filed a final account as temporary guardian on October 28, 2019, and a 2018-2019 annual account on May 30, 2020. The 2018-2019 accounting showed large credit card charges by Naciri for “personal expenses” including jewelry, clothing, and travel. That year, Naciri also received payments from Edgar’s assets totaling $179,000. In December 2020, Alison filed objections to the accounting, resolution of which remains sub judice in Supreme Court.2 Alison then filed a petition and an order to show cause for visitation with her brother. Alison also asked that the court reappoint a court evaluator so that the circumstances of Edgar’s marriage and the agreements he had ostensibly signed, including the prenuptial agreement, could be investigated. Alison claimed the marriage, entered into only after the guardianship proceeding was commenced, was a sham and that Mock and Elias, in dereliction of their fiduciary duties, had failed in the ensuing years to take any action to investigate these matters or protect him. The motion was separately opposed by Naciri and Mock. They each denied that Mock had any obligation to investigate the circumstances of the prenuptial agreement or marriage because there was no express directive in Mock’s order of appointment to do so. Mock has held firm to this position throughout these proceedings. She admitted in court that, in accordance with her understanding of her order of appointment, she never took any steps to investigate the prenuptial agreement or marriage. In fact, at a July 21, 2021, appearance, in response to Alison’s counsel’s demand to know why an investigation of Edgar’s marriage had not yet taken place, Mock represented that “my directives were crystal clear. My directives were not to vacate the marriage, not to do a full investigation.” By order to show cause returnable June 30, 2021, Alison again sought the reappointment of the court evaluator to investigate the circumstances of Edgar’s marriage to Naciri, and any agreements made within one year of the guardian’s appointment. Naciri interposed written opposition to the motion, but neither Mock nor Elias opposed this motion in writing.3 These motions were heard by Hon. Carol Sharpe, the judge newly assigned to this matter.4 Judge Sharpe observed that although Judge Kennedy had ordered that the issues raised in Burner’s report would not be addressed at the capacity hearings, Judge Kennedy had further ordered that those issues would be dealt with by the guardian once appointed. Judge Sharpe summed up her findings as follows: “The looming issue is what led up to that marriage, what led up to the prenuptial agreement, and the fact that Judge Kennedy left it open for a further investigation, the spending of the amount of money that is being spent, the fact that Edgar is now in a home…I think that we need an investigation, and it is — and whatever the result of the investigation by a special guardian will be what it is.” The court determined that a special guardian was needed and issued its order appointing the special guardian (Lissett C. Ferreira), on August 24, 2021, resolving that part of Alison’s petition seeking an investigation. This is one of the orders challenged in this appeal. The order provides Ferreira with limited powers, authorizing her to, among other things: 1) investigate the possibility of a safe discharge of Edgar to his residence in the community and engage a geriatric care manager to assist in the assessment; 2) investigate the circumstances of Edgar’s marriage, as well as the prenuptial agreement; 3) investigate the financial circumstances of transactions during the guardianship and in the preceding years; and 4) review Edgar’s financial records for a period of five years preceding the date of Mock’s order of appointment. Beginning in November 2021 and continuing through February 2022, the parties engaged in a rapidly escalating tumbleweed of highly contentious litigation, filing a series of overlapping motions and cross motions. As relevant to this appeal, Ferreira brought a motion on January 13, 2022, to have Mock removed as Edgar’s guardian and to discharge Elias on the basis that they had a conflict of interest and had breached their fiduciary duties to Edgar by supporting Naciri’s arguments, rather than acting independently to protect Edgar and his assets. Alison filed papers in support of Ferreira’s motion. On January 21st, Naciri brought a separate motion to have the special guardian removed. In opposition to the motion to remove Mock and Elias, Naciri argued that Edgar wanted to keep Mock and Elias as his fiduciaries. She argued that Ferreira and Alison were “meddling” in Edgar’s life and causing him distress. Elias and Mock each separately opposed the motion for their respective discharge and removal. Mock averred that she was protecting Edgar’s interests and honoring his wishes. On the February 1, 2022, the return date of Ferreira’s motion to remove Mock and discharge Elias, the court learned that Edgar had been hospitalized and there was an emergent issue of Edgar’s safe discharge. The issue was whether he could be safely released to his apartment or whether he should be returned to the assisted living facility (ALF) where he apparently had been living for over two years. The court ordered that Fox, Edgar’s geriatric care manager, provide a written report with her professional assessment and recommendations. The court then stated, “I need the guardian to investigate whether or not [Edgar] should be discharged home….” and observed that prior to being placed in the ALF, Edgar had round the clock health care at home that had been privately paid for with his own funds. Fox’s attorney represented that her client and the guardian would work together. However, upon prompting by Mock’s attorney to clarify whether the investigation was to be conducted by Mock, as guardian, or by Ferreira, as special guardian, the court stated, “[the geriatric care manager] is to report to the special guardian….I need to hear from the special guardian as to….what [Edgar's] status is and where he should be released to.” The court also set a briefing schedule that day for all of the extant motions. Naciri’s, Mock’s and Elias’s papers were due by February 22nd, Ferreria’s reply, if any was due by March 15th, with a court appearance scheduled for March 24th. A flurry of correspondence ensued after that court appearance. Fox’s attorneys updated the court on Edgar’s status, reporting it was “technically feasible” for him to be discharged to his apartment, provided all necessary medical equipment was available and other safety measures were in place. On February 14th, however, Mock’s attorney advised the court that Edgar would be released to the ALF where he had previously resided. Mock made this decision without any explanation why a discharge home was inadvisable, despite Fox’s recommendation. In further correspondence dated February 23rd, Mock’s attorney, without elaboration, advised the court that it was Edgar’s “wish” that he return to the ALF. Mock’s attorney again wrote to the court, citing ongoing confusion among the health care professionals about who was in charge of making the ultimate decision of where Edgar would be discharged to, warning that Edgar’s discharge was in limbo. On February 24th, Mock’s attorney urged the court to sign an order authorizing Mock to effectuate Edgar’s discharge from the hospital to the ALF. Mock still had not considered any option other than returning Edgar to the ALF and she provided no fully reasoned explanation to the court for why that was in Edgar’s best interest. Alison’s attorney sent a letter, dated February 24th, stating that Alison had been deprived of any meaningful information about Edgar’s care and was surprised to learn he was receiving end-of-life care. By order dated February 24, 2022, Supreme Court removed Mock and discharged Elias. This order is also the subject of this appeal.5 In relevant part, the February 24th order states Mock was removed, and Elias discharged for the following reasons: “It is evident from the filings, and now the attorney’s letters by Mr. Abrams, that the court appointees, both the Guardian and counsel to [Mr. L.], joined by Ms. Naciri who has a direct interest in the investigation into her marriage, oppose this Court’s appointment of the Special Guardian and her recommendations that they be removed.” The court added that it had appointed Ferreira as special guardian because an investigation was required into the marriage, as well as the financial expenditures authorized by Mock and the circumstances of why Edgar was in an ALF, given that he had the financial means to pay for quality home care and owned a two-bedroom apartment. The court stated that although it was Edgar’s personal needs and property management that were the focus of this proceeding, Mock and Elias had lost focus of that, instead litigating matters tangential to his well-being, including Ferreira’s involvement in these proceedings. The court cited Mock’s failure to fulfill her duties, including the court’s purported directive that an investigation was needed into whether Edgar could be safely discharged home. Having been apprised that a “dangerous situation…has arisen,” the court ordered Mock’s immediate removal and discharged Elias. A new attorney was appointed for Edgar and on March 8, 2022, the court appointed a successor guardian for him. This order appointing a new guardian is also the subject of this appeal. While the appeal was being perfected, this Court granted a limited stay of the hearing on Ferreira’s motion, pending determination of the appeal. During the pending stay, Supreme Court issued an order on June 21, 2022, scheduling a hearing on Ferreira’s motion. Appellants also challenge this scheduling order on appeal. Alison’s standing has been an overarching issue raised in connection with each order appealed from. We hold that Alison had standing to commence this article 81 proceeding as a “person…concerned with the welfare of the person alleged to be incapacitated” (Mental Hygiene Law §81.06 [a] [6]; see Matter of de Menil (de Menil), 195 AD3d 410, 410 [1st Dept 2021]). This is a broad category of persons and standing does not rest on whether the alleged incapacitated person and the petitioner are friendly or not. Consequently, we reject any argument that Alison’s and Edgar’s estrangement affects standing. Not only did Alison have standing to commence the underlying article 81 proceeding, she also has standing to participate in these further proceedings to have the guardian discharged or her powers modified. Alison also has standing to pursue collateral relief as pertains to such issues (see Mental Hygiene Law §§81.35, 81.36 [b]), including seeking to compel an investigation into the claimed sham marriage here. Naciri’s further argument, that Alison lacks standing to seek annulment of her marriage to Edgar rests on the mistaken application of Domestic Relations Law §140 (c). The issue before this Court is not whether Alison has standing to annul the marriage. Indeed, Alison’s petition did not seek authority to annul Edgar’s marriage. Rather, in light of Burner’s recommendations, and the record developed before Judge Kennedy, Alison was seeking relief against the guardian, based upon Mock’s failure to independently investigate and determine whether the marriage should be annulled. Marriage is a civil contract between two wedded individuals, and among the powers of an article 81 guardian is the power to manage the IP’s property, including contracts. Where an article 81 guardian has been appointed for an IP and the individual is found to have been incapable of understanding the nature, effect, and consequences of the marriage, annulment of the marriage is an available remedy for the guardian to pursue (Mental Hygiene Law §81.29 [d]; Matter of Kaminester v. Foldes, 51 AD3d 528, 529 [1st Dept 2008], lv dismissed and denied 11 NY3d 781 [2008]). Appellants’ argument, that Supreme Court’s order appointing a special guardian was issued sua sponte and in violation of Edgar’s right to due process, is rejected. The appointment was a consequence of Alison’s motion for an independent investigation. Appellants were on notice of that motion and Naciri opposed it in writing. Mock and Elias did not file written opposition, but they orally addressed the merits in court. Although appellants also contend it was statutorily impermissible for Supreme Court to appoint a special guardian because Edgar already had a guardian and the statute does not allow for an IP to have both, this argument is unavailing. Contrary to appellants’ contention, the court could properly appoint a special guardian despite the prior appointment of Mock as guardian (see e.g. Matter of Ruth TT, 283 AD2d 869, 871 [3d Dept 2001]; Matter of Pflueger, 181 Misc 2d 294, 295 [Sur Ct, NY County 1999]). Furthermore, a comparison of the orders appointing Mock and Ferreira demonstrate that Ferreira’s appointment did not create redundancy. Ferreira was not charged with marshalling Edgar’s assets or making ultimate decisions. Those duties remained with Mock. Besides investigating the circumstances of Edgar’s marriage, the court tasked Ferreira with gathering information about why Edgar was placed in an ALF despite having sizeable assets that would have allowed him to have high quality care at home. There were other disturbing matters brought to Mock’s attention that Mock refused or neglected to investigate, including why Naciri was using Edgar’s credit cards to travel and making large expenditures for clothing and expensive jewelry, none of which benefited Edgar. Appellants cite no statutory or legal authority that would have prevented the court from appointing a special guardian to aid the court, prepare a report and protect Edgar’s interests once Mock had failed to do so herself. Appellants’ further argument, that Ferreira’s appointment was detrimental to Edgar’s health and well-being, engendering a great deal of confusion among health care providers as to who would decide Edgar’s discharge from the hospital, is also rejected. Appellants ask this Court to vacate the February 24th order removing Mock as Edgar’s guardian and discharging Elias, and the subsequent appointment of a successor guardian, raising procedural as well as substantive arguments. Procedurally, appellants contend that the motion was decided prematurely, before it was fully briefed and argued, and without there being a testimonial hearing. These arguments fail. By February 22nd, the appellants had fully briefed Ferreira’s motion for Mock’s and Elias’s removal; the only papers outstanding were Ferreira’s reply, which was due March 15th. The absence of a reply did not prejudice appellants, who had no right to a surreply (see CPLR 2214[b], [c]; Coleman v. Korn, 92 AD3d 595 [1st Dept 2012]). The motion for Mock’s removal and Elias’s discharge was fully papered by appellants when it was decided by the court. The Mental Hygiene Law does not support appellants’ contention that they were entitled to a testimonial hearing in this case before being removed. Mental Hygiene Law §81.35 provides that a guardian may be removed when she or he “fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just” (see Matter of Mary Alice C., 56 AD3d 467, 468 [2d Dept 2008]). A motion on notice, served on the persons specified in Mental Hygiene Law §81.16 (c), is required but there is no statutory right to a hearing (see Mental Hygiene Law §§81.16[c]; 81.35). This relaxed requirement stands in distinction to Mental Hygiene Law §81.11 (a), which provides that the petition for the appointment of a guardian for an alleged IP, whose liberty interests are at stake, “shall be made only after a hearing” (Matter of Eggleston [Muhammed], 303 AD2d 263, 266 [1st Dept 2003]; Matter of Ruth TT, 267 AD2d 553, 554-55 [3d Dept 1999]). The reason a guardian has “no due process right to a full hearing,” nor is a “full blown” hearing necessary for their removal, is that a guardian has no “property interest” to protect (Matter of Bauer, 216 AD2d 25, 26 [1st Dept 1995], appeal dismissed 86 NY2d 867 [1995], lv dismissed and denied 87 NY2d 952 [1996]). Although a guardian cannot be summarily removed in the absence of a fully developed record or without any findings, and a hearing may be required where material facts are disputed (see Matter of Roberts, 205 AD3d 562, 563 [1st Dept 2022]), here the parties had not only fully briefed Ferreira’s motion, but the salient facts were also known to the court and largely undisputed. A decision to remove a guardian of the person and property of an IP is within the sound discretion of the trial court (Matter of Agam S. B.-L. [Janna W. - Richard P.], 198 AD3d 962, 963 [2d Dept 2021]). Contrary to appellants’ contention, a testimonial hearing was not necessary in this case because the court already possessed enough information for it to make findings justifying Mock’s and Elias’s removal, and they had an opportunity to be heard (cf. Matter of Roberts, 205 AD3d 562). On the merits, the court properly exercised its discretion in removing Mock and discharging Elias. Undisputed before the court was the fact that Mock did not investigate and make a reasoned determination about the bona fides of the marriage and the prenuptial agreement. The circumstances presented throughout this case were alarming, raising red flags that at the time of the marriage and the prenuptial agreement Edgar was not competent. Mock’s defense, that it was what Edgar wanted, misses the point. While it is important to solicit the views of an IP, those views cannot be the sole basis for action (or inaction). Were that the case, there would be no reason to appoint a guardian in the first place. Moreover, Mock is incorrect in adopting the position that she had no duty to investigate. The order did not have to expressly direct her to investigate these troubling circumstances, which implicated possible serious financial abuse. A guardian’s duties under the Mental Hygiene Law require that such action be taken. While such an investigation need not be undertaken in every case, here the issue was squarely raised in the court evaluator’s report, identified by the court as an issue for Mock to address as guardian, and warranted given that the prenuptial agreement and marriage occurred so close in time to the filing and granting of the article 81 petition, further buttressed by the evidence demonstrating how severely compromised Edgar was. Mock’s failure to investigate was in dereliction of her duties. Moreover, Mock’s and Elias’s conflicts of interest and ongoing litigation with Ferreira “overwhelmingly established just cause” for their removal because their actions were not in Edgar’s best interests (Bauer, 216 AD2d at 26; see Mental Hygiene Law §81.35). Although Mock and Elias argue that their litigation was necessary to protect Edgar from Ferreira, the record does not support this claim. Ferreira’s appointment served Edgar’s best interests, while Mock’s and Elias’s repeated attempts to frustrate her from carrying out her court-mandated investigations into Edgar’s marriage and discharge from the hospital, under the stated rationale of doing whatever Edgar wanted, did not serve Edgar’s best interests. Despite Mock’s and Elias’s characterization of the court’s removal order as a wrongful retaliation for their having appealed Ferreira’s appointment, it instead is more reasonably read as the court’s recognition that Edgar’s best interests cannot be served where there is infighting amongst his fiduciaries. Therefore, the court was justified in ordering Mock’s and Elias’s removal. The March 8, 2022, appointment of a successor guardian was unavoidable and necessary given that once Mock was removed, Edgar still needed a guardian of the person and property. Mock’s separate argument that her removal was motivated by Judge Sharpe’s personal feelings towards her has no basis in this record. Concerning this Court’s stays and the trial court’s June 21, 2022, order, the appeal from that order is dismissed as moot because no hearing was held on the issues implicated by that order, and none was necessary. We have considered appellants’ remaining arguments and find them unavailing. The Decision and Order of this Court entered herein on November 15, 2022, is hereby recalled and vacated (see M-2022-04971 & M-2022-05179 decided simultaneously herewith). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

1. This was an apparent reference to an agreement signed by Edgar in February 2018, which was not disclosed by Naciri until later in these proceedings. The validity of this agreement, as well as Mock’s payments thereon, are the subject of as unadjudicated disputes in this guardianship proceeding. 2. The financial disputes, like other matters in these proceedings, are highly charged. However, because these matters are unresolved and they were not the basis for the orders challenged on this appeal, we do not address them in this decision. 3. Mock belatedly filed opposition papers on February 22, 2022, well after the court had appointed Lissett C. Ferreira to conduct an investigation. 4. By this time, Judge Kennedy had been elevated to sit on the Appellate Division, First Department. 5. Naciri’s motion for the special guardian’s removal, however, remains undecided. By Friedman, J.P., González, Kennedy, Shulman, Pitt-Burke, JJ. 651977/14.    LANMARK GROUP, INC., plf-app, v. NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, def-res — Milber Makris Plousadis & Seiden, LLP, Woodbury (Joseph J. Cooke of counsel), for appellant — Sylvia O. Hinds-Radix, Corporation Counsel, New York (D. Alan Rosinus, Jr. of counsel), for respondent — Order, Supreme Court, New York County (Lewis J. Lubell, J.), entered on or about August 18, 2021, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Defendant established its prima facie entitlement to summary judgment by furnishing competent evidence that the delays plaintiff faced were contemplated within the parties’ contract (see Corinno Civetta Constr. Corp. v. City of New York, 67 NY2d 297, 309 [1986]). Plaintiff asserted in its complaint that it incurred damages because of uncontemplated delays that arose when it was obliged to pay tradespeople for eight hours of work even though they worked only five hours per day. However, defendant’s bid solicitation letter stated that the winning bidder would agree to the project labor agreement (the PLA) between defendant and the Building and Construction Trades Council of Greater New York and Vicinity; the letter provided a link to the PLA, which stated that each worker needed to be paid for eight hours each day even if the worker actually worked fewer hours. In addition, one of the exhibits to the contract required all weekday work to be performed after 3:00 p.m. from Monday to Friday. Plaintiff also warranted when it entered into the contract that it was “familiar with all federal, state, and other laws, ordinances, orders, rules, codes and regulations affecting the Work required under the Contract,” including relevant sections of the New York City building code allowing weekend work and work after 6:00 p.m. on weekdays only through an authorization from the New York City Department of Buildings, which the Department might or might not decide to issue. Together, these facts make clear that plaintiff was aware of at least the possibility that tradespeople would be able to work as little as three hours per day (see Bovis Lend Lease (LMB), Inc. v. Lower Manhattan Dev. Corp., 108 AD3d 135, 147 [1st Dept 2013]). Defendant also furnished sufficient evidence showing that it did not breach a fundamental obligation of the contract — namely, that tradespeople be able to work an eight-hour shift. Contrary to plaintiff’s position that the PLA required that tradespeople be permitted to work a full eight-hour shift, the PLA required only that they be paid for an eight-hour shift (see Corinno Civetta Constr. Corp., 67 NY2d at 309). Moreover, although the mandate to follow the PLA’s eight-hour pay requirement was in some sense imposed by defendant, plaintiff agreed to this requirement in entering into the contract. We have considered plaintiff’s remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Friedman, J.P., González, Kennedy, Shulman, Pitt-Burke, JJ. N10215/21.    IN THE MATTER OF MADELINE M., A CHILD UNDER EIGHTEEN YEARS OF AGE, ETC., DALLAS M., res-app, ADMINISTRATION FOR CHILDREN’S SERVICES, pet-res — Kenneth M. Tuccillo, Hastings on Hudson, for appellant — Sylvia O. Hinds-Radix, Corporation Counsel, New York (Jeremy Pepper of counsel), for respondent — Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child — Order of disposition of the Family Court, Bronx County (Robert Hettleman, J.), entered on or about May 17, 2022, to the extent it brings up for review a fact-finding order (denominated a decision), same court and Justice, entered on or about May 17, 2022, which found that respondent-appellant mother neglected the subject child, unanimously affirmed, without costs. Appeal from fact-finding decision unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition. Family Court’s finding that the mother neglected the child was supported by a preponderance of the evidence. The record shows that the mother suffers from untreated mental illness that would subject the child to imminent risk of harm if returned to her care (see Matter of Cerenithy Ecksthine B. [Christian B.], 92 AD3d 417 [1st Dept 2012]). The prior finding of neglect against the mother in 2017 involving one of her two older sons established that she suffered from numerous mental health conditions, including bipolar disorder; had been psychiatrically hospitalized approximately 13 times; and was recommended to engage in mental health treatment, but failed to do so. Moreover, statements made by the mother during an interview with a case worker two days after the subject child’s birth in 2021 demonstrated that the mother continued to lack insight into her serious and chronic mental health condition and its impact on her parental ability, and that she was unable to properly care for the child (see Matter of Jayden S. [Shalea S.], 159 AD3d 500, 501 [1st Dept 2018], lv denied 31 NY3d 908 [2018]). The mother offered no evidence at the hearing to contradict the evidence showing that her untreated mental illness impaired her ability to care for the child. Furthermore, Family Court properly drew the strongest negative inference against the mother because she did not testify (see Matter of Nicole H., 12 AD3d 182, 183 [1st Dept 2004]). On appeal, the mother improperly cites to comments made by the court during a remand hearing, which are not part of the fact-finding record (see Matter of Brianna R. [Marisol G.], 78 AD3d 437, 438 [1st Dept 2010], lv denied 16 NY2d 702 [2011]). The mother similarly improperly relies on a court-ordered mental health evaluation that was not submitted as evidence at the fact-finding hearing (id.). We have considered the mother’s remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Friedman, J.P., González, Kennedy, Shulman, Pitt-Burke, JJ. 29973/20.    VICTOR C. PACHECO ET AL., plf-res, v. FRANCISCO JABALERA, def-app, TOMASZ CHOROSTECKI ET AL., LUIS SANTOS JR. def — McCabe, Collins McGeough, Flower, Levine & Nogan LLP, Jericho (James M. Hayes of counsel), for app — Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered on or about January 14, 2022, which denied defendant Francisco Jabalera’s motion to dismiss the complaint pursuant to CPLR 3211(a)(1), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly. Plaintiffs commenced this action to recover damages for injuries sustained in a motor vehicle accident. In the complaint, plaintiffs alleged that each named defendant was an owner of the vehicle. Defendant Jabalera denied that allegation. Defendants Tomasz Chorostecki and Chorostecki Auto Group, LLC (together, Chorostecki defendants), did not deny that allegation. The motion court improvidently exercised its discretion in converting Jabalera’s CPLR 3211 motion to one for summary judgment. CPLR 3211(c) empowers the court to convert a 3211 motion to one for summary judgment, but only after adequate notice to the parties. The motion court provided no notice to the parties. Moreover, none of the exceptions to the notice requirement apply here (see Four Seasons Hotels v. Vinnik, 127 AD2d 310, 320 [1st Dept 1987]). Nevertheless, we consider the merits, as the motion is, in effect, one for summary judgment although denominated as a CPLR 3211 motion (CPLR 5501[c]). In their answer, the Chorostecki defendants’ failure to deny the allegations that they are owners of the vehicle, are formal judicial admissions, and are deemed admitted (see Matter of Driver, 117 AD2d 224, 226 [1st Dept 1986]). Moreover, Jabalera’s submissions demonstrate that he was not the owner of the vehicle at the time of the accident. In opposition, plaintiffs have failed to demonstrate that any facts exist as to the ownership of the vehicle that require further discovery on this issue (see Bailey v. New York City Tr. Auth., 270 AD2d 156, 157 [1st Dept 2000]). We note that the Chorostecki defendants do not oppose the appeal. Accordingly, the complaint and cross claims are dismissed as against Jabalera. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Friedman, J.P., González, Kennedy, Shulman, Pitt-Burke, JJ. 1367/2016.    THE PEOPLE OF THE STATE OF NEW YORK, res, v. DAEMON JENKINS, def-app — Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant — Alvin L. Bragg, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), for respondent — Judgment, Supreme Court, New York County (Mark Dwyer, J.), rendered November 29, 2018, convicting defendant, after a jury trial, of conspiracy in the fourth degree and criminal sale of a firearm in the third degree (four counts), and sentencing him, as a second violent felony offender, to an aggregate term of 12 years, unanimously affirmed. The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence established the geographic jurisdiction of New York State over each offense based on defendant’s acts and the acts of his accomplices (see Penal Law §20.00), notwithstanding that defendant was physically located in Virginia (see CPL 20.20[1][a],[2][d]; People v. Kassebaum, 95 NY2d 611, 620 [2001]). The testimony, documentary evidence, and intercepted communications showed that defendant and several accomplices engaged in a firearm trafficking operation, in which one participant arranged to purchase and pick up firearms in several southern states and transported them to New York for resale. Recorded conversations between defendant and the accomplice, viewed as a whole, supported reasonable inferences that defendant knowingly supplied the accomplice with four firearms, and that defendant was aware that the accomplice subsequently sold them in New York (see e.g. People v. Alvarez, 158 AD3d 587, 587 [1st Dept 2018], lv denied 31 NY3d 1114 [2018]). The court providently exercised its discretion in denying defendant’s request for new assigned counsel (see People v. Porto, 16 NY3d 93, 99-101 [2010]; People v. Colon, 145 AD3d 562 [1st Dept 2016], lv denied 29 NY3d 947 [2017]). After defendant submitted a written motion, the court gave him an opportunity to elaborate on it orally, which defendant declined. This constituted a suitable inquiry into his claims (see People v. Nelson, 7 NY3d 883 [2006]). Defendant’s assertion that counsel had failed to raise particular arguments is not supported by the record and did not provide good cause to relieve counsel on the eve of jury selection. Defendant’s related ineffective assistance of counsel claims, based on counsel’s alleged failure to consult with him, raise certain arguments, and pursue particular strategies, are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 NY2d 705, 709 [1988]). Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Friedman, J.P., González, Kennedy, Shulman, Pitt-Burke, JJ. 3759/14.    THE PEOPLE OF THE STATE OF NEW YORK, res, v. WILLIE HANFORD, def-app — Twyla Carter, The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant — Alvin L. Bragg, Jr., District Attorney, New York (Anna Notchick of counsel), for respondent — Order, Supreme Court, New York County (Michele S. Rodney, J.), entered on or about November 1, 2018, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-c), unanimously affirmed, without costs. The court providently exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 NY3d 841 [2014]). Defendant’s good prison disciplinary record was sufficiently taken into account by the risk assessment instrument (see People v. Watson, 112 AD3d 501, 503 [1st Dept 2013], lv denied 22 NY3d 863 [2014]), and his rehabilitation was not exceptional (see People v. Bonnemere, 201 AD3d 475 [1st Dept 2022]). Defendant has not shown that his age minimized his individual risk of reoffense to such an extent that a downward departure is warranted (see e.g. People v. Lalji, 133 AD3d 427, 428 [1st Dept 2015], lv denied 26 NY3d 917 [2016]). In any event, the mitigating factors cited by defendant were outweighed by the seriousness of the underlying crime, in which defendant blatantly approached and sexually abused a 10-year-old stranger who was accompanied by her mother in a public place. These circumstances suggest a lack of control and a serious risk of sexual reoffense (see People v. Gillette, 189 AD3d 512 [1st Dept 2020]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Friedman, J.P., González, Kennedy, Shulman, Pitt-Burke, JJ. 656939/19.    POPE CONTRACTING, INC., plf-app, v. NEW YORK CITY HOUSING AUTHORITY, def-res — Ansell Grimm & Aaron, P.C., White Plains (Joshua S. Bauchner of counsel), for appellant — Lisa Bova-Hiatt, New York (Karen R. Cross of counsel), for respondent — Order, Supreme Court, New York County (Margaret A. Chan, J.), entered November 10, 2021, which granted defendant’s motion to dismiss the complaint, unanimously affirmed, without costs. In October 2015, defendant New York City Housing Authority (NYCHA) awarded plaintiff a contract to perform roof and rooftop brick repair work at various housing developments. Pursuant to the parties’ contract, plaintiff was required to serve a notice of claim as to any claim it wished to make involving additional compensation within 20 days after the accrual of such a claim as a condition precedent to the settlement of such a claim or to the plaintiff instituting an action on such a claim. The contract further provided that plaintiff could only appeal the decision of defendant’s contracting officer with respect to any notice of claim that it served by filing suit within 30 days of the contracting officers’ decision. In April 2017, plaintiff commenced a prior action against NYCHA regarding various disputes. While that litigation was pending, NYCHA notified plaintiff that it intended to take an approximately $385,000 credit for plaintiff’s alleged overbilling of its asbestos removal work, and plaintiff submitted a proposed change order seeking an additional nearly $500,000 from defendant for its asbestos removal work. Thereafter, the parties settled the prior litigation. Their settlement agreement noted that there were outstanding items in dispute, including the disputed asbestos removal work and plaintiff’s proposed change order. The settlement agreement contained a merger clause providing that it “supersede[d] all prior agreements and understandings…whether written or oral, with regard to the matters set forth herein.” It also specified that it did “not include or account for any payments or credits related” to the outstanding items, which “will be addressed in a subsequent payment.” Thereafter, on April 5, 2019, defendant advised plaintiff that it would not consider the proposed change order and was still seeking its credit. Plaintiff then served a notice of claim, dated May 30, 2019; defendant requested additional information by letter dated July 3, 2019, which plaintiff supplied by letter dated July 22, 2019; and defendant’s contracting officer denied plaintiff’s claim by letter dated September 27, 2019. Plaintiff commenced this action on November 21, 2019. NYCHA moved to dismiss based on plaintiff’s failure to serve a timely notice of claim in accordance with the parties’ contract. Supreme Court properly declined to deny defendant’s motion to dismiss as premature (CPLR 3211 [d]) as plaintiff did not show that discovery was needed to oppose the motion, which is based on the language of the settlement agreement (see Rochester Linoleum & Carpet Ctr., Inc. v. Cassin, 61 AD3d 1201, 1202 [3d Dept 2009]). On the issue of whether it provided a timely notice of claim discovery is not needed because “plaintiff had in its possession any documents that it may have sent to defendant that it believed satisfied the notice of claim requirement” (APS Contrs., Inc. v. New York City Hous. Auth., 193 AD3d 628, 630 [1st Dept 2021]). We agree with the motion court that the settlement agreement did not supersede the contract insofar as it concerns the outstanding items. A subsequent contract regarding the same subject matter will supersede a prior contract, but only with regard to that same subject matter (see Hyuncheol Hwang v. Mirae Asset Sec. [USA] Inc., 165 AD3d 413, 414 [1st Dept 2018], lv denied 32 NY3d 910 [2018]). Here, the settlement agreement explicitly carved out the outstanding items from its scope, and provided that it superseded the contract only “with regard to the matters set forth herein.” Reading the settlement agreement as superseding the contract as to all matters between the parties would be contrary to the plain language of the contract (see generally Beal Sav. Bank v. Sommer, 8 NY3d 318, 324 [2007]). Thus, plaintiff failed to comply with the contract’s notice of claim requirements. Even using April 5, 2019 — the date that defendant advised plaintiff that it would not consider plaintiff’s proposed change order and was still seeking a credit — as the date on which plaintiff’s claim accrued, its May 30, 2019 notice of claim was untimely by 35 days. Furthermore, defendant’s contracting officer denied plaintiff’s claim by letter dated September 27, 2019, triggering the contract’s 30-day time limit within which plaintiff could commence this action. However, plaintiff did not do so until November 21, 2019, making this action untimely by 25 days. Plaintiff’s argument that defendant waived the contract’s notice of claim requirement, or that defendant is estopped from relying on it, is unavailing. As to waiver, the contract provides that only defendant’s contracting officer can modify the contract, which modification must be in writing, and there is no evidence of any such written modification by the contracting officer in the record. As to the estoppel, municipal defendants are “under no obligation to apprise plaintiff[s]” that they have “ failed to file a timely notice of claim as against [them,]” and, as noted above, “ the failure to file a timely notice of claim may be raised any time prior to trial” (Davis v. City of New York, 250 AD2d 368, 370 [1st Dept 1998]). Plaintiff’s cross motion for leave to serve a late notice of claim on defendant was properly denied. General Municipal Law §50-e (5), applies to “case[s] founded upon tort where a notice of claim is required by law,” and therefore, does not apply in this contract case. In any event, even if plaintiff could be granted leave to serve a late notice of claim on defendant in this case, it still would not excuse plaintiff’s failure to commence this action within 30 days of the contracting officer’s denial of its claim. Furthermore, plaintiff’s argument that it should have been allowed to plead contract, quasi contract, and fraud claims in the alternative is unavailing. First, plaintiff’s contract claims fail for the reasons discussed above, namely plaintiff’s failure to comply with the notice of claim provisions of the parties’ contract and the exclusion of the subject matter of this dispute from the settlement agreement. Second, plaintiff’s quasi contract claims were properly dismissed insofar as a claim for breach of the implied covenant of good faith and fair dealing cannot be used as a substitute for nonviable contract claims (see National Union Fire Ins. Co. of Pittsburgh, Pa. v. Xerox Corp., 25 AD3d 309, 310 [1st Dept 2006], lv dismissed 7 NY3d 886 [2006]). The existence of a contract between the parties precludes claims for promissory estoppel (see ID Beauty S.A.S. v. Coty Inc. Headquarters, 164 AD3d 1186, 1186 [1st Dept 2018]; Susman v. Commerzbank Capital Mkts. Corp., 95 AD3d 589 [1st Dept 2012], lv denied 19 NY3d 810 [2012]) and unjust enrichment (see Vitale v. Steinberg, 307 AD2d 107, 111 [1st Dept 2003]; Abax Inc. v. New York City Hous. Auth., 282 AD2d 372, 373 [1st Dept 2001]). Finally, plaintiff did not plead its fraudulent inducement claim with the requisite degree of particularity (see CPLR 3016 [b]; Gregor v. Rossi, 120 AD3d 447, 447 [1st Dept 2014]; Fariello v. Checkmate Holdings, LLC, 82 AD3d 437, 437 [1st Dept 2011]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Friedman, J.P., González, Kennedy, Shulman, Pitt-Burke, JJ. N10079/17.    IN THE MATTER OF UNIQUE S. T., A CHILD UNDER EIGHTEEN YEARS OF AGE, ETC., JENEVIA D. T., res-app, ANGEL T. res, ADMINISTRATION FOR CHILDREN’S SERVICES, pet-res — Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant — Sylvia O. Hinds-Radix, Corporation Counsel, New York (Lauren L. O’Brien of counsel), for respondent — Dawne A. Mitchell, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the child — Fact-finding order, Family Court, New York County (Patria Frias-Colon, J.), entered on or about March 17, 2021, which determined, after a hearing, that respondent mother derivatively neglected the subject child, unanimously affirmed, without costs. Petitioner made a prima facie showing of derivative neglect as to the subject child (see Matter of Phoenix J. [Kodee J.], 129 AD3d 603, 603 [1st Dept 2015]). There are three prior orders finding that the mother neglected the child and two of his siblings as well as an order terminating her parental rights to his older sibling before the instant petition was filed, which established that the mother still suffered from such an impaired level of parental judgment as to create a substantial risk of harm for any child in her custody (see e.g. Matter of Nayomi M. [Paul R.], 147 AD3d 413, 414 [1st Dept 2017]). That the last finding was entered against the mother around 18 months before this petition was filed against her does not establish that the prior findings are necessarily too remote in time to support a finding of derivative neglect (see Matter of Jamil S. [Shaaniel T.], 156 AD3d 585 [1st Dept 2017]; Matter of Jayden C. [Luisanny A.], 126 AD3d 433, 433-444 [1st Dept 2015]). The record shows that in 2016, about a year before the instant petition was filed against the mother, orders of protection were issued directing her to stay away from the subject child and a younger sibling, and that the order of protection regarding that younger sibling was still in effect when this proceeding commenced. Furthermore, the mother does not dispute that the child and his siblings have not returned to her care, or that the two orders entering derivative neglect findings against her regarding two of the child’s younger siblings, after the instant petition was filed, were based on her failure to comply with her court-ordered service plan, thus further establishing that her neglectful conduct continued (see Matter of A’Nyia P.G. [Qubilah C.T.G.], 176 AD3d 495, 496 [1st Dept 2019], lv denied 34 NY3d 908 [2020]; Matter of Jerell P. [Qubilah G.], 157 AD3d 443, 443 [1st Dept 2018]). Although the Family Court did not state that it was drawing a negative inference against the mother for failing to testify at the fact-finding hearing, it was entitled to do so (see Matter of Christina G. [Vladimir G.], 100 AD3d 454, 454 [1st Dept 2012], lv denied 20 NY3d 859 [2013]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Friedman, J.P., González, Shulman, Pitt-Burke, JJ. 500137/09.    IN THE MATTER OF JOSE V., AN INCAPACITATED PERSON, ROCIO PIETERNELLE, PROPERTY GUARDIAN, plf-res, v. SMILEY & SMILEY LLP, def, FLOMENHAFT & CANNATA, LLP, ET AL., def-app; FATIMA V. ET AL., Non-Party res — The Flomenhaft Law Firm, PLLC, New York (David C. Zegarelli of counsel), and Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellants — Meenan & Associates, LLC, New York (Lissett C. Ferreira of counsel), for Jose V., respondent — Schwartz Goldstone Campisi & Kates, LLP, New York (Herbert Rodriguez Jr. of counsel), for Schwartz Goldstone Campisi & Kates, LLP, respondent — Order, Supreme Court, New York County (Carol Sharpe, J.), entered on or about August 4, 2022, which, in these consolidated proceedings, denied defendants Flomenhaft & Cannata, LLP, Flomenhaft Law Firm, PLLC, and Michael Flomenhaft’s (collectively, Flomenhaft defendants) motion to vacate an order, dated October 1, 2015, sealing the court record in the guardianship proceeding, unanimously reversed, on the law and the facts, without costs, and the motion granted. Order, same court and Justice, entered on or about August 8, 2022, which denied the Flomenhaft defendants’ motion for the court’s recusal, unanimously affirmed, without costs, and the matters remanded for further proceedings before a different Justice. The Flomenhaft defendants seek to vacate a 2015 order sealing the records in the guardianship proceeding after consolidation of that proceeding with various pending related matters, including a legal malpractice action brought by the guardian against the Flomenhaft defendants arising from their representation of the subject incapacitated person in a personal injury action, as directed by this Court (see Pieternelle v. Smiley & Smiley, LLP, 187 AD3d 487 [1st Dept 2020]). As an initial matter, the court erred in concluding that the law of the case doctrine barred it from vacating the sealing order. The doctrine does not apply under the circumstances here, where the sealing order was based on a discretionary ruling (see Allstate Ins. Co. v. Buziashvili, 71 AD3d 571, 572 [1st Dept 2010]), and the Flomenhaft defendants were not parties to the guardianship proceeding at the time the order was issued (see Aspen Specialty Ins. Co. v. RLI Ins. Co., Inc., 194 AD3d 206, 212 [1st Dept 2021]). On the merits, the order should have been vacated, as it failed to set forth “good cause” for sealing the records in the guardianship proceeding (Mental Hygiene Law §81.14[b]; Uniform Rules for Trial Cts [22 NYCRR] §216.1[a]; see Mosallem v. Berenson, 76 AD3d 345, 349 [1st Dept 2010]). The reasons cited in the order, the “size of the settlement and other ongoing litigation,” were not sufficiently compelling to overcome the public’s right to access the records (see Matter of East 51st St. Crane Collapse Litig., 106 AD3d 473, 474 [1st Dept 2013]; Gryphon Dom. VI, LLC v. APP Intl. Fin. Co., B.V., 28 AD3d 322, 326 [1st Dept 2006]). In the absence of compelling circumstances, the Flomenhart defendants should not have been precluded access to the records, especially since the guardian had placed the incapacitated individual’s mental condition at issue in the legal malpractice action against them (see Del Grosso v. Jimmy Jazz Staten Is., LLC, 190 AD3d 409, 410 [1st Dept 2021]). Any concerns about the confidentiality of certain records could be adequately remedied through redaction (see Matter of Gliklad v. Deripaska, 185 AD3d 512, 514 [1st Dept 2020]). The court providently exercised its discretion in denying the Flomenhaft defendants’ motion for recusal. To be sure, because the consolidation of the various proceedings, as directed by this Court (Pieternelle, 187 AD3d 487), resulted in them merging into a single action (see Kelley v. Galina-Bouquet, Inc., 155 AD2d 96, 101-102 [1st Dept 1990]; Padilla v. Greyhound Lines, 29 AD2d 495, 497 [1st Dept 1968]), the Flomenhart defendants were entitled to participate in the guardianship proceeding. Thus, by excluding them from discussions in that proceeding, the court engaged in ex parte communications. However, those communications regarding fee approvals and other guardianship matters do not require the court to recuse itself as a matter of law (see Gabay v. Bender, 34 AD3d 207, 207 [1st Dept 2006]). We have considered the Flomenhart defendants’ remaining contentions and find them unavailing. Under the circumstances, however, we deem it appropriate to direct that, upon remand, the matters be reassigned to another Justice (see Fresh Del Monte Produce N.V. v. Eastbrook Caribe A.V.V., 40 AD3d 415, 417 [1st Dept 2007]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.