Appellate Division, Second Department: June 2, 2023

By Barros, J.P.; Maltese, Dowling, Voutsinas, JJ. BANK OF NEW YORK MELLON, ETC., res, v. PAMELA JOSEPH, app, ET AL., def — (Index No. 512823/18) Heslop & Dominique, LLP, Brooklyn, NY (Garfield A. Heslop of counsel), for appellant. Stim & Warmuth, Farmingville, NY (Glenn P. Warmuth of counsel), for respondent. In an action to foreclose a mortgage, the defendant Pamela Joseph appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated January 13, 2020. The order denied that defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her, and, in effect, for summary judgment on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage. ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Pamela Joseph pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her, and, in effect, for summary judgment on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage is granted. In 2009, the plaintiff commenced an action to foreclose a mortgage (hereinafter the 2009 action) against the defendant Pamela Joseph (hereinafter the defendant), among others. The defendant moved to dismiss the complaint in the 2009 action insofar as asserted against her on the ground of lack of personal jurisdiction. By order dated March 6, 2017, the Supreme Court granted the defendant’s motion, upon the plaintiff’s failure to appear for a hearing to determine the validity of service of process. Thereafter, the plaintiff moved, inter alia, to vacate its default and to restore the action to the calendar. By order dated August 9, 2017, the court granted the plaintiff’s motion “on condition that [the] plaintiff pay $750.00 to [the] defendant [within] 40 days.” The plaintiff failed to tender the required payment to the defendant within 40 days. The plaintiff then moved, inter alia, to extend its time to comply with the August 9, 2017 order. By order dated January 24, 2018, the court denied the plaintiff’s motion and directed dismissal of the complaint in the 2009 action. In June 2018, the plaintiff commenced the instant mortgage foreclosure action against the defendant, among others. The defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her on the ground, among others, that the action was time-barred, and, in effect, for summary judgment on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage. By order dated January 13, 2020, the Supreme Court denied the defendant’s motion. The defendant appeals. On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired (see Ross v. Jamaica Hosp. Med. Ctr., 122 AD3d 607, 607). A mortgage foreclosure action is subject to a six-year statute of limitations (see CPLR 213[4]). “[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” (Nationstar Mtge., LLC v. Weisblum, 143 AD3d 866, 867 [internal quotation marks omitted]). Here, it is undisputed that the mortgage debt was accelerated upon the commencement of the 2009 action. Since the plaintiff did not commence this action until 2018, the defendant sustained her initial burden of demonstrating, prima facie, that the action was untimely (see U.S. Bank N.A. v. Derissaint, 193 AD3d 790, 791-792; U.S. Bank Trust, N.A. v. Miele, 186 AD3d 526, 528). Where, as here, a defendant satisfies the initial burden of proof on a motion pursuant to CPLR 3211(a)(5), “‘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’” (U.S. Bank N.A. v. Nail, 203 AD3d 1095, 1097, quoting U.S. Bank N.A. v. Vitolo, 182 AD3d 627, 628 [internal quotation marks omitted]). CPLR 205-a provides, in relevant part: “If an action upon an instrument described under [CPLR 213(4)] is timely commenced and is terminated in any manner other than a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for any form of neglect, including, but not limited to those specified in [CPLR 3126(3), 3215, 3216, and 3404], for violation of any court rules or individual part rules, for failure to comply with any court scheduling orders, or by default due to nonappearance for conference or at a calendar call, or by failure to timely submit any order or judgment, or upon a final judgment upon the merits, the original plaintiff…may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months following the termination, provided that the new action would have been timely commenced within the applicable limitations period prescribed by law at the time of the commencement of the prior action and that service upon the original defendant is completed within such six-month period.” Here, assuming that the saving provision of CPLR 205-a would otherwise apply, the instant action was not commenced within the six-month period after the 2009 action was dismissed. Contrary to the plaintiff’s contention, since the August 9, 2017 order restoring the case to the calendar was conditional, and the condition was not fulfilled, the action was never restored to the calendar and the March 6, 2017 order granting the plaintiff’s motion to dismiss the complaint in the 2009 action insofar as asserted against her remained effective (see Martin v. Dormitory Auth. of the State of N.Y., 208 AD3d 576, 577; Benderson Dev. Co. v. Litton Bus. Sys., Inc., 130 AD2d 941, 941-942). Therefore, the plaintiff’s commencement of the instant action in June 2018 was untimely. The defendant’s remaining contentions need not be addressed in light of our determination. Accordingly, we reverse the order and grant the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her, and, in effect, for summary judgment on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage. BARROS, J.P., MALTESE, DOWLING and VOUTSINAS, JJ., concur. By Duffy, J.P.; Rivera, Christopher, Voutsinas, JJ. JOSEPH M. SWEENEY, ET AL., res, v. JULIE ANN STARK, ETC., ET AL., app — (Index No. 608692/18) McLaughlin & Stern, LLP, Garden City, NY (Christian Browne of counsel), for appellants. Westerman Ball Ederer Miller Zucker & Sharfstein, LLP, Uniondale, NY (Philip J. Campisi, Jr., and Naeemah Clark of counsel), for respondents. In an action for declaratory relief, for specific performance directing the return of a down payment held in escrow, and to recover damages for breach of a contract for the sale of real property, the defendants appeal from (1) an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered August 20, 2020, and (2) an interlocutory judgment of the same court entered September 18, 2020. The order denied the defendants’ motion for summary judgment dismissing the causes of action for specific performance and to recover damages for breach of contract, with respect to the cause of action for declaratory relief, and on the counterclaim of the defendants Julie Ann Stark and Anthony Orso to retain the down payment as liquidated damages and to recover attorney’s fees, and for a hearing on the amount of attorney’s fees to be awarded, and granted the plaintiffs’ cross-motion for summary judgment on the complaint and for a hearing on the issue of damages on the cause of action to recover damages for breach of contract. The interlocutory judgment, upon the order, is in favor of the plaintiffs and against the defendants, in effect, declaring that the plaintiffs properly terminated the contract and directing the defendant Marc A. Paz, P.C., to release the down payment, held in escrow, to the plaintiffs. ORDERED that the appeal from so much of the order as denied those branches of the defendants’ motion which were for summary judgment dismissing the cause of action for specific performance and with respect to the cause of action for declaratory relief, and granted those branches of the plaintiffs’ cross-motion which were for summary judgment on those causes of action, is dismissed, as those portions of the order were superseded by the interlocutory judgment; and it is further, ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiffs’ cross-motion which was for summary judgment on the cause of action to recover damages for breach of contract and for a hearing on the issue of damages on that cause of action, and substituting therefore a provision denying that branch of the cross-motion; as so modified, the order is affirmed insofar as reviewed; and it is further, ORDERED that the interlocutory judgment is reversed, on the law, those branches of the plaintiffs’ cross-motion which were for summary judgment on the causes of action for specific performance and for declaratory relief are denied, and the order is further modified accordingly; and it is further, ORDERED that one bill of costs is awarded to the defendants. On May 16, 2017, the plaintiffs (hereinafter the buyers) and the defendants Julie Ann Stark and Anthony Orso (hereinafter together the sellers) entered into a contract for the sale of real property located in Sands Point. The contract called for a sale price of $6,250,000. Pursuant to the contract, the buyers made a down payment of $625,000, which was deposited into an escrow account of the sellers’ attorney, the defendant Marc A. Paz, P.C. (hereinafter Paz). Paragraph 21 of the contract conferred on both the buyers and the sellers the right to cancel the contract if the sellers were unable to remove or remedy title objections or other defects within an adjournment of the closing date which was not to exceed 60 days, by providing notice of cancellation to the other party within 10 days after such adjournment. In addition, pursuant to paragraph 45 of the second rider to the contract (hereinafter the second rider), upon notice to the sellers within 5 days prior to the date set forth for the closing of title, if there should appear any valid objections to title, the sellers were entitled to a reasonable time, not to exceed 30 days, within which to remove such defects, and if the objections could not be removed, the sellers were to return to the buyers the monies paid on account of the contract. The second rider provided that, to the extent there were any inconsistencies between the terms of the second rider and the terms of the contract, the terms of the second rider would prevail. Further, paragraph 49 of the second rider provided that, at or prior to closing, a certain right-of-way “shall be fully and entirely unobstructed, allowing for unimpeded access by [the buyers]” from the premises to Hempstead Harbor. The contract called for an on or about closing date of July 17, 2017. Prior to the closing date, the parties discovered that deeds related to a “land swap” between the sellers and their neighbor, Eric Berliner, were never properly recorded. As a result, defects in title prevented the parties from closing. Paragraph 32 of the first rider to the contract provides that the sellers and buyers have the right to one adjournment of the closing date, not to exceed 30 days after the original closing date set forth therein, and that the new closing date shall be “Time of the Essence” against the buyers and the sellers. The sellers endeavored to resolve the title defects, and set a closing date of December 21, 2017, and declared it “time of the essence.” The buyers objected based upon title defects that remained unresolved as a result of the “land swap” and the fact that obstructions remained on the right-of-way. The sellers agreed that they would work on resolving the defects and the parties did not close on December 21, 2017. On May 22, 2018, the buyers’ title company set forth defects in title that would preclude the recording of the deed and issues with the lack of a tax map update that prevented a proper description of the property being sold. Subsequently, more than one year after the buyers and the sellers signed the contract of sale, by letter dated May 23, 2018, the buyers’ attorney, relying, inter alia, on paragraph 21 of the contract and paragraph 45 of the second rider, informed the sellers’ attorney that the buyers were electing to terminate the contract due to title defects as enunciated by their title company and demanded return of their down payment. In response, the sellers rejected the buyers’ termination and subsequently set a “time of the essence” closing for July 2, 2018. By letter from their attorney dated June 28, 2018, the buyers indicated that the time-of-the-essence closing was invalid and a nullity, as they had terminated the contract. The buyers did not appear at the time of the essence closing. On June 28, 2018, the buyers commenced this action against the sellers and Paz for specific performance directing the return of the down payment, for declaratory relief, and to recover damages for breach of contract. The defendants interposed an answer which included a counterclaim to allow the sellers to retain the down payment as liquidated damages and to recover attorney’s fees. Thereafter, the defendants moved for summary judgment dismissing the causes of action for specific performance and to recover damages for breach of contract, with respect to the cause of action for declaratory relief, and on the counterclaim, and for a hearing on the amount of attorney’s fees to be awarded. The buyers cross-moved for summary judgment on the complaint and for a hearing on the issue of damages on the cause of action to recover damages for breach of contract. In an order entered August 20, 2020, the Supreme Court granted the buyers’ cross-motion and denied the defendants’ motion, finding that the buyers properly exercised their right to terminate the contract. In an interlocutory judgment entered September 18, 2020, the court, in effect, declared that the buyers properly terminated the contract and directed Paz to return the down payment to the buyers. The defendants appeal. Contrary to the buyers’ contention, they failed to establish, prima facie, that they were entitled to cancel the contract pursuant to paragraph 21 of the contract and paragraph 45 of the second rider, and to a return of the down payment. Pursuant to those provisions, the time limits for the sellers to correct defects in title were to be correlated with a scheduled closing date. However, on May 23, 2018, the date the buyers sent the letter terminating the contract, no date had been set for a closing, and no scheduled closing had been adjourned; thus, the time limits for correcting the defects never began to run against the sellers. While in their letter terminating the contract the buyers reference the on or about July 17, 2017 closing date set forth in the contract, neither party sought to close at that time. Moreover, when the December 21, 2017 time of the essence closing scheduled by the sellers did not take place, no adjourned date was set. Therefore, as there was an indefinite adjournment of the closing date, “some affirmative act has to be taken by one party before [they] can claim the other party is in default; that is, one party has to fix a time by which the other must perform, and [they] must inform the other that if [they do] not perform by that date, [they] will be considered in default” (Rodrigues NBA, LLC v. Allied XV, LLC, 164 AD3d 1388, 1389 [internal quotation marks omitted]). Here, the buyers failed to fix a time by which the sellers had to cure the title defects and provide an unobstructed right-of-way before they terminated the contract on May 23, 2018. As “it was incumbent upon the [buyers] to put the seller[s] in default by tendering performance, demanding that the seller[s] perform [their] obligations, and giving [them] a reasonable opportunity to cure the defects” (Xelo v. Hamilton, 198 AD3d 710, 712), and the buyers never did so, the Supreme Court erred in granting the buyers’ cross-motion for summary judgment on the complaint and for a hearing on the issue of damages on the cause of action to recover damages for breach of contract. Regarding the defendants’ motion, inter alia, for summary judgment, as an initial matter, the buyers did anticipatorily breach the contract, since the May 23, 2018 letter terminating the contract and demanding a return of the down payment was a “‘positive and unequivocal’” expression of an intent not to perform (Central Park Capital Group, LLC v. Machin, 189 AD3d 984, 986, quoting Princes Point LLC v. Muss Dev. L.L.C., 30 NY3d 127, 133; see Hegner v. Reed, 2 AD3d 683, 684). However, inasmuch as the sellers thereafter set a time of the essence closing date, they elected to ignore the buyers’ breach of the contract and treat the contract as still valid (see Hegner v. Reed, 2 AD3d at 684-685; see generally Strasbourger v. Leerburger, 233 NY 55, 59). “[W]hen a party to a real estate contract declares time to be of the essence in setting a closing date, each party must tender performance on that date, and a failure to perform constitutes a default” (Donerail Corp. N.V. v. 405 Park LLC, 100 AD3d 131, 137; see Grace v. Nappa, 46 NY2d 560, 565). “[W]here a seller seeks to hold a purchaser in breach of contract, the seller must establish that [he or she] was ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for [his or her] failure to close” (Martocci v. Schneider, 119 AD3d 746, 748, quoting Donerail Corp. N.V. v. 405 Park LLC, 100 AD3d at 138). Here, the sellers failed to establish, prima facie, that they were ready, willing, and able to perform on the law day. Although the sellers invoked their right to procure a reputable title company, willing to provide insurable title, the sellers’ submissions failed to eliminate triable issues of fact as to whether the sellers were able to convey clear title in accordance with the terms of the contract. While the sellers submitted a transcript of the July 2, 2018 “closing” at which a representative of Old Republic, the title company procured by the sellers, asserted that, as per Al Stork, the senior vice president and counsel of Old Republic, it would issue a policy free from exception, the deposition testimony of Stork raises triable issues of fact. Significantly, with regard to certain “land swap” deeds between the sellers and Berliner, the owner of the adjacent property, Stork averred that Old Republic’s commitment to insure was subject to verification upon issuance of an updated tax map by Nassau County that corresponded with the exchange of the parcels. However, Stork testified that the updated tax map was not received by Old Republic until August 21 or 22, 2018, at least 45 days after the scheduled time-of-the-essence closing. Moreover, Stork explained that Old Republic’s willingness to insure was based in part on having the cooperation of the parties to the “land swap” transaction to correct any issues that would arise post-closing. However, the buyers raised triable issues of fact as to whether Berliner would be cooperative post-closing. Additionally, there was an issue with regard to Berliner producing a corrected satisfaction of mortgage related to property in the “land swap” transaction. Further, the sellers did not provide any evidence that the right-of-way was “fully and entirely unobstructed, allowing for unimpeded access” from the premises to Hempstead Harbor. Therefore, there are triable issues of fact as to whether the sellers were ready, willing, and able to perform at the time of the scheduled time-of-the-essence closing (see Rodrigues NBA, LLC v. Allied XV, LLC, 164 AD3d at 1389-1390). Based on the foregoing, the Supreme Court properly denied those branches of the defendants’ motion which were for summary judgment on the counterclaim to retain the down payment as liquidated damages and to recover attorney’s fees, and for a hearing on the amount of attorney’s fees to be awarded. The court also properly denied those branches of the defendants’ motion which was for summary judgment dismissing the dismissing the causes of action for specific performance and to recover damages for breach of contract, and with respect to the cause of action for declaratory relief, as there are triable issues of fact as to whether the buyers failed to demonstrate a lawful excuse for their failure to close (cf. Martocci v. Schneider, 119 AD3d at 749). DUFFY, J.P., RIVERA, CHRISTOPHER and VOUTSINAS, JJ., concur. By Dillon, J.P.; Connolly, Chambers, Wooten, JJ. SIMONE DIONNE GOODEN, app, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, ETC., res, ET AL., def — (Index No. 707564/17) Sgouras Law Firm, PLLC, Astoria, NY (Athanasios Tommy Sgouras of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Devin Slack and Susan Paulson of counsel), for respondent. In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), dated June 27, 2019. The order, insofar as appealed from, denied those branches of the plaintiff’s cross-motion which were for an in camera review of certain hospital records and thereafter, disclosure of nonprivileged information contained therein, and pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant Dennis Downing. ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff’s cross-motion which was for an in camera review of certain hospital records and thereafter, disclosure of nonprivileged information contained therein, and substituting therefor a provision granting that branch of the cross-motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith. The plaintiff commenced this action to recover damages she allegedly sustained in an incident that occurred while she was working as a certified nursing assistant at a hospital operated by the defendant New York City Health and Hospitals Corporation, incorrectly sued herein as New York City Health and Hospitals Corporation, NYC HHC Elmhurst Hospital Center (hereinafter NYCHHC). At the time, the plaintiff was employed by nonparty Horizon Health Care Staffing, and assigned to work at the subject hospital. The plaintiff alleges that, while performing her duties, she was assaulted by a hospital patient, causing serious injuries. In addition to NYCHHC, the complaint names the alleged assailant, Dennis Downing, as a defendant. NYCHHC moved, inter alia, to compel the plaintiff to provide certain discovery. The plaintiff cross-moved, inter alia, for an in camera review of certain hospital records, including Downing’s medical records, and thereafter, disclosure of nonprivileged information contained therein. The plaintiff also sought to extend the time to serve the summons and complaint upon Downing. In an order dated dated June 27, 2019, the Supreme Court, inter alia, denied those branches of the plaintiff’s 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, by…a party” (CPLR 3101[a][1]). However, relevant discovery is subject to preclusion if the requested information is privileged (see id. §3101[b]; Dillenbeck v. Hess, 73 NY2d 278, 287). 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 (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). Here, the plaintiff seeks information as to any prior aggressive or violent acts by Downing. Information of a nonmedical nature regarding prior aggressive or violent acts is not privileged (see Jayne v. Smith, 184 AD3d 557, 559; J.Z. v. South Oaks Hosp., 67 AD3d 645, 646; Sohan v. Long Is. Coll. Hosp., 282 AD2d 597). Accordingly, we remit the matter to the Supreme Court, Queens County, for an in camera review of the subject hospital records, to determine which records contain nonprivileged information that is subject to disclosure, and thereafter disclosure of such records (see J.Z. v. South Oaks Hosp., 67 AD3d at 645; see also Sohan v. Long Is. Coll. Hosp., 282 AD2d at 598). The Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff’s cross-motion which was to extend the time to serve the summons and complaint upon Downing. Pursuant to CPLR 306-b, a court may extend the time for service “upon good cause shown or in the interest of justice.” “‘Good cause’ and ‘interest of justice’ are two separate and independent statutory standards” (BAC Home Loans Servicing, LP v. Rogener, 171 AD3d 996, 998). “To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service” (Bumpus v. New York City Tr. Auth., 66 AD3d 26, 31). Here, the plaintiff did not demonstrate reasonable diligence in attempting to effect service (see Wells Fargo Bank, N.A. v. Fameux, 201 AD3d 1012, 1014; Wells Fargo Bank, N.A. v. McCarthy, 195 AD3d 983, 985; JPMorgan Chase Bank, NA v. Gluck, 195 AD3d 904, 906). Where a plaintiff fails to establish good cause, “courts must consider the ‘interest of justice’ standard of CPLR 306-b” (Bumpus v. New York City Tr. Auth., 66 AD3d at 32). “The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” (Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106; see BAC Home Loans Servicing, LP v. Rogener, 171 AD3d at 998). Here, the Supreme Court did not improvidently exercise its discretion in concluding that an extension of time for service was not warranted in the interest of justice, given, inter alia, the failure to make reasonable efforts at service upon Downing and the delay in moving for an extension of time for service of process (see US Bank N.A. v. Fink, 206 AD3d 858, 861; Feng Li v. Peng, 190 AD3d 950, 953). DILLON, J.P., CONNOLLY, CHAMBERS and WOOTEN, JJ., concur. By Dillon, J.P.; Connolly, Chambers, Wooten, JJ. SIMONE DIONNE GOODEN, app, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, ETC., res, ET AL., def — (Index No. 707564/17) Sgouras Law Firm, PLLC, Astoria, NY (Athanasios Tommy Sgouras of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Devin Slack and Susan Paulson of counsel), for respondent. In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), dated June 16, 2021. The order denied the plaintiff’s motion pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court dated February 17, 2021, granting the unopposed motion of the defendant New York City Health and Hospitals Corporation for summary judgment dismissing the complaint insofar as asserted against it. ORDERED that the order dated June 16, 2021, is reversed, on the law and in the exercise of discretion, with costs, and the plaintiff’s motion pursuant to CPLR 5015(a)(1) to vacate the order dated February 17, 2021 is granted. As set forth in our decision and order on a related appeal (see Gooden v. New York City Health & Hosps. Corp., ____ AD3d ____ [Appellate Division Docket No. 2019-09465; decided herewith]), the plaintiff commenced this action to recover damages she allegedly sustained in an incident that occurred while she was working as a certified nursing assistant at a hospital operated by the defendant New York City Health and Hospitals Corporation, incorrectly sued herein as New York City Health and Hospitals Corporation, NYC HHC Elmhurst Hospital Center (hereinafter NYCHHC). At the time, the plaintiff was employed by nonparty Horizon Healthcare Staffing, and assigned to work at the subject hospital. The plaintiff alleges that, while performing her duties, she was assaulted by a hospital patient and sustained serious injuries. In addition to NYCHHC, the complaint names the alleged assailant, Dennis Downing, as a defendant. In February 2020, NYCHHC moved for summary judgment dismissing the complaint insofar as asserted against it (hereinafter the summary judgment motion). The summary judgment motion was returnable on March 25, 2020. On March 20, 2020, former Governor Andrew M. Cuomo signed the first of a series of Executive Orders tolling certain motion deadlines until November 3, 2020, due to the COVID-19 pandemic emergency (see 9 NYCRR 8.202.8, 8.202.14, 8.202.28, 8.202.38, 8.202.48, 8.202.55, 8.202.55.1, 8.202.60, 8.202.67, 8.202.72). The summary judgment motion was then administratively adjourned until July 7, 2020, and then September 8, 2020. In May 2020, the plaintiff moved, inter alia, to stay the submission of the summary judgment motion pending hearing and determination of the plaintiff’s appeal from an order of the Supreme Court dated June 27, 2019 (see Gooden v. New York City Health & Hosps. Corp., ____ AD3d ____), or, in the alternative, to enlarge the time to file papers in opposition to the summary judgment motion. By order dated February 16, 2021, the Supreme Court denied the motion, inter alia, for a stay. By order dated February 17, 2021, the Supreme Court granted the unopposed summary judgment motion. The plaintiff then moved pursuant to CPLR 5015(a)(1) to vacate the order dated February 17, 2021. The court denied the motion, and the plaintiff appeals. A party seeking to vacate an order entered upon his or her default in opposing a motion must submit evidence in admissible form establishing both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see OneWest Bank, FSB v. Singer, 153 AD3d 714, 715-716; HSBC Bank USA N.A. v. Nuteh 72 Realty Corp., 70 AD3d 998, 999; Incorporated Vil. of Hempstead v. Jablonsky, 283 AD2d 553, 554). Here, the plaintiff set forth a reasonable excuse for the default in opposing the summary judgment motion. That motion was returnable after the effective date of the initial Executive Order that tolled certain deadlines (see CPLR 2214[b]). The summary judgment motion was administratively adjourned, and then marked submitted in September 2020, prior to the expiration of the subject Executive Orders. Under these circumstances, the plaintiff set forth a reasonable excuse for her failure to oppose the summary judgment motion prior to that submission date (see Willner v. S Norsel Realties LLC, 206 AD3d 545; Matter of Kenneth A.S. v. Jennice C., 202 AD3d 606; see also Hatta v. ZBS Group LLP, 209 AD3d 459). In addition, the plaintiff set forth a potentially meritorious opposition to the summary judgment motion. NYCHHC sought summary judgment based, inter alia, on the special employer defense pursuant to Workers’ Compensation Law §§11, 29. The record demonstrates the existence of potential issues of fact related to that defense (see Zupan v. Irwin Contr., Inc., 145 AD3d 715, 718; Holmes v. Business Relocation Servs., Inc., 117 AD3d 468, 469). The record also demonstrates the existence of potential issues of fact as to whether NYCHHC had prior notice of aggressive or violent propensities on the part of Downing (see Ciccone v. City of New York, 138 AD3d 910, 911; see also Khosrova v. Hampton Bays Union Free Sch. Dist., 99 AD3d 669, 671). Accordingly, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion pursuant to CPLR 5015(a)(1) to vacate the order dated February 17, 2021 (see Hatta v. ZBS Group LLP, 209 AD3d at 459; Willner v. S Norsel Realties LLC, 206 AD3d at 545-546; Matter of Kenneth A.S. v. Jennice C., 202 AD3d at 607). DILLON, J.P., CONNOLLY, CHAMBERS and WOOTEN, JJ., concur. By Dillon, J.P.; Connolly, Chambers, Wooten, JJ. U.S. BANK NATIONAL ASSOCIATION, ETC., res, v. JENNIFER MONTALVO, ET AL., app, ET AL., def — (Index No. 605453/15) Christopher Thompson, West Islip, NY, for appellants. Gross Polowy (Reed Smith, LLP, New York, NY [Michael V. Margarella, Andrew B. Messite, and Yimell Suarez], of counsel), for respondent. In an action to foreclose a mortgage, the defendants Jennifer Montalvo and Alex Montalvo appeal from an order of the Supreme Court, Suffolk County (Howard H. Heckman, Jr., J.), dated November 4, 2019. The order denied those defendants’ motion for leave to reargue and renew their opposition to those branches of the plaintiff’s prior motion which were for summary judgment on the complaint insofar as asserted against them, to strike their answer and dismiss their counterclaims, and for an order of reference, and their prior cross-motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, which were determined in two orders of the same court dated March 20, 2019. Cross-motion by the plaintiff to dismiss the appeal on the ground that no appeal lies from an order denying reargument. By decision and order on motion of this Court dated December 28, 2020, the cross-motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof. Upon the papers filed in support of the cross-motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is ORDERED that the branch of the cross-motion which is to dismiss the appeal from so much of the order dated November 4, 2019, as denied that branch of the motion of the defendants Jennifer Montalvo and Alex Montalvo which was for leave to reargue is granted, and the cross-motion is otherwise denied; and it is further, ORDERED that the appeal from so much of the order dated November 4, 2019, as denied that branch of the motion of the defendants Jennifer Montalvo and Alex Montalvo which was for leave to reargue is dismissed; and it is further, ORDERED that the order dated November 4, 2019, is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the plaintiff. In 2015, the plaintiff commenced this action to foreclose a mortgage encumbering real property located in Patchogue. In two orders, both dated March 20, 2019 (hereinafter the March 2019 orders), the Supreme Court, inter alia, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Jennifer Montalvo and Alex Montalvo (hereinafter together the defendants), to strike their answer and dismiss their counterclaims, and for an order of reference, and denied the defendants’ cross-motion for summary judgment dismissing the complaint insofar as asserted against them or, alternatively, for leave to amend their answer to assert a statute of limitations defense. The defendants subsequently moved for leave to reargue and renew their opposition to those branches of the plaintiff’s prior motion and their prior cross-motion. In an order dated November 4, 2019, the court denied the defendants’ motion for leave to reargue and renew. The defendants appeal. We must dismiss the appeal from so much of the November 4, 2019 order as denied that branch of the defendants’ motion which was for leave to reargue, “as no appeal lies from an order denying reargument” (U.S. Bank N.A. v. Ford, 208 AD3d 1199, 1200; see U.S. Bank Trust, N.A. v. Hussain, 207 AD3d 778, 779). The Supreme Court properly denied that branch of the defendants’ motion which was for leave to renew since, contrary to their contention, they did not show that there had been a change in the law (see US Bank N.A. v. Singer, 145 AD3d 1057, 1058-1059; Cenlar, FSB v. Weisz, 136 AD3d 855, 856) since the filing of their opposition to the plaintiff’s prior motion or their prior cross-motion (see PHH Mtge. Corp. v. Shouela, 210 AD3d 815, 816). The parties’ remaining contentions either are without merit or need not be reached in light of our determination. DILLON, J.P., CONNOLLY, CHAMBERS and WOOTEN, JJ., concur. By Connolly, J.P.; Miller, Christopher, Taylor, JJ. NACHMAN BERLIN, plf, v. AMERICAN UNITED TRANSPORTATION, INC., ET AL., app, SOLOMON FRIEDMAN, res — (Action No. 1); ASYA LUKYANOVSKAYA, plf-app, v. SOLOMON FRIEDMAN, res, AMERICAN UNITED TRANSPORTATION, INC., ET AL., def-app — (Action No. 2) — (Index Nos. 501285/19, 511351/19) Bruce A. Newborough, P.C. (Thomas Torto, New York, NY, of counsel), for plaintiff-appellant in Action No. 2. Hannum Feretic Prendergast & Merlino, LLC, New York, NY (Erol B. Gurcan of counsel), for respondent in Action Nos. 1 and 2. In two related actions to recover damages for personal injuries, which were joined for discovery and trial, the plaintiff in Action No. 2 appeals, and the defendants American United Transportation, Inc., and Cheikh Ndoye, separately appeal, from an order of the Supreme Court, Kings County (Lorna J. McAllister, J.), dated April 30, 2020. The order, insofar as appealed from by the plaintiff in Action No. 2, granted that branch of the motion of the defendant Solomon Friedman which was for summary judgment dismissing the complaint in Action No. 2 insofar as asserted against him. ORDERED that the appeal by American United Transportation, Inc., and Cheikh Ndoye is dismissed as abandoned; and it is further, ORDERED that the order is affirmed insofar as appealed from by the plaintiff in Action No. 2; and it is further, ORDERED that one bill of costs is awarded to Solomon Friedman, payable by the plaintiff in Action No. 2. On October 31, 2018, the plaintiff in Action No. 2, Asya Lukyanovskaya (hereinafter the plaintiff), allegedly was injured in a two-car collision at the intersection of Avenue N and East 4th Street in Brooklyn. The plaintiff was a passenger in a vehicle owned by American United Transportation, Inc. (hereinafter American United), and operated by Cheikh Ndoye. Ndoye’s vehicle was traveling southbound on East 4th Street when it collided with a vehicle owned and operated by Solomon Friedman, which was traveling westbound on Avenue N. At the subject intersection, traffic on Avenue N was not directed by any traffic control devices, but traffic on East 4th Street was controlled by a stop sign. The plaintiff commenced Action No. 2 to recover damages for personal injuries against Friedman, American United, and Ndoye. Friedman moved, inter alia, for summary judgment dismissing the complaint in Action No. 2 insofar as asserted against him. The Supreme Court, inter alia, granted that branch of Friedman’s motion, and the plaintiff appeals. Friedman established his prima facie entitlement to judgment as a matter of law by demonstrating that Ndoye, who was faced with a stop sign at the intersection, negligently drove his vehicle into the intersection without yielding the right-of-way to Friedman, and that this was the sole proximate cause of the accident (see Kirby v. Lett, 208 AD3d 1174, 1175-1176; Choo v. Virginia Transp. Corp., 204 AD3d 743, 745; Fuertes v. City of New York, 146 AD3d 936, 937-938). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s contention that Friedman’s motion should have been denied as premature is without merit. “A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” (Morales v. Amar, 145 AD3d 1000, 1003; see CPLR 3212[f]; Dalrymple v. Morocho, 208 AD3d 751, 753). Here, the affirmation of the plaintiff’s counsel failed to establish either basis, and the “‘mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion’” (Morales v. Amar, 145 AD3d at 1003, quoting Suero-Sosa v. Cardona, 112 AD3d 706, 708; see Dalrymple v. Morocho, 208 AD3d at 753). CONNOLLY, J.P., MILLER, CHRISTOPHER and TAYLOR, JJ., concur. By Iannacci, J.P.; Miller, Christopher, Wan, JJ. MANDY LEBOEUF, res, v. JOEL GREENE, app — (Index No. 54312/19) Beldock Levine & Hoffman, LLP, New York, NY (Jonathan K. Pollack of counsel), for appellant. Lee Anav Chung White Kim Ruger & Richter, LLP, New York, NY (Aimee L. Richter of counsel), for respondent. In a proceeding pursuant to Domestic Relations Law §§76(1)(a) and 240, Joel Greene appeals from an order of the Supreme Court, Kings County (Eric I. Prus, J.), dated April 21, 2021. The order granted the application of Mandy LeBoeuf for an award of counsel fees, and awarded her counsel fees in the sum of $25,000. ORDERED that on the Court’s own motion, the notice of appeal from the order is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further, ORDERED that the order is reversed, on the law, on the facts, and in the exercise of discretion, and the application of Mandy LeBoeuf for an award of counsel fees is denied; and it is further, ORDERED that one bill of costs is awarded to the appellant. The parties, who were never married, are the parents of one child, born in 2017. In August 2019, the mother commenced this proceeding against the father pursuant to Domestic Relations Law §§76(1)(a) and 240, seeking, inter alia, sole legal and residential custody of the parties’ child. In July 2020, the parties entered into a stipulation resolving all issues raised in the petition by, among other thing, giving the mother final decision-making authority and residential custody of the child, with parental access to the father. In September 2020, the mother moved to modify the stipulation based upon the father’s alleged misrepresentations to her that in August 2020 he drove with the child to visit his parents in Alabama when he in fact flew with the child. The mother’s motion papers did not seek an award of counsel fees. At a court conference on December 2, 2020, while the motion remained pending and undecided, the father’s counsel acknowledged to the Supreme Court that the father had lied to the mother when he told her that he did not fly with the child to Alabama in August 2020. The mother’s counsel made an oral application for an award of counsel fees, and the court permitted the mother to submit a written application. The mother then filed a written application for an award of counsel fees, which the father opposed. In an order dated April 21, 2021 (hereinafter the fee order), the Supreme Court granted the mother’s application for an award of counsel fees, and awarded her counsel fees in the sum of $25,000. The father appeals. Although the Supreme Court failed to state in the fee order the legal authority upon which it based the award of counsel fees (see Matter of Reilly v. Reilly, 79 AD3d 1132, 1132; Breslaw v. Breslaw, 209 AD2d 662, 663), it is clear from the record that the court awarded counsel fees pursuant to either 22 NYCRR 130-1.1 or Domestic Relations Law §237(b). However, under the unique circumstances of this case, whether the court awarded counsel fees pursuant to 22 NYCRR 130-1.1 or Domestic Relations Law §237(b) is immaterial, since under either standard the court improvidently exercised its discretion in granting the application. Under 22 NYCRR 130-1.1(a), “[t]he court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this [p]art.” “[C]onduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (id. §130-1.1[c]). “An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case” (id. §130-1.1[d]). “The court may award costs or impose sanctions or both only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate” (id. §130-1.2). Here, at the December 2, 2020 court conference, at which the Supreme Court permitted the mother to make a written application for counsel fees, the court did not state whether the application should be made under 22 NYCRR 130-1.1. Moreover, the court did not—either at the December 2, 2020 court conference or in the fee order—specifically make a finding that the father’s conduct was “frivolous” within the meaning of 22 NYCRR 130-1.1. Additionally, contrary to the mother’s contention, the mother’s initial papers submitted in support of her application for an award of counsel fees did not seek relief under 22 NYCRR 130-1.1, or set forth any statutory basis for an award of counsel fees. Under these circumstances, to the extent the court granted the mother’s application for an award of counsel fees pursuant to 22 NYCRR 130-1.1, the father did not receive sufficient notice of the alleged frivolous conduct, and, therefore, was not given “a reasonable opportunity to be heard” (id. §130-1.1[d]; see Muhametaj v. Town of Orangetown, 195 AD3d 627, 628). Moreover, to the extent that the Supreme Court granted the mother’s application for an award of counsel fees under 22 NYCRR 130-1.1, the court improperly based its determination to grant the application, in part, on the father’s act of lying to the mother about flying to Alabama with the parties’ child, since this conduct occurred outside of the proceeding before the court (see Matter of Fernandez v. Nigro, 178 AD3d 703, 705; Matter of Alice D. [Lupoli], 113 AD3d 609, 612-613; Casey v. Chemical Bank, 245 AD2d 258, 258). The court also based its determination to grant the mother’s application on misrepresentations the father made to the court during court conferences in September 2020 and October 2020. However, since the record before us does not contain transcripts of those court proceedings, we are unable to determine what, if any, “material factual statements that are false” were asserted by the father at those court conferences (22 NYCRR 130-1.1[c][3]). Finally, the statements made by the father in his affidavit in opposition to the mother’s motion to modify the stipulation did not constitute “material factual statements that are false” within the meaning of 22 NYCRR 130-1.1(c)(3). Under Domestic Relations Law §237(b), upon any application to modify an order for custody, parental access, or maintenance of a child, “the court may direct a spouse or parent to pay counsel fees and fees…to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties” (see Matter of Kelly G. v. Circe H., 178 AD3d 533, 534-535). “There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse” (Domestic Relations Law §237[b]). “Such an award is to be based on the financial circumstances of the parties and the circumstances of the case as a whole” (Matter of Yu Wei v. Mathews, 165 AD3d 957, 958 [internal quotation marks omitted]). Here, to the extent that the Supreme Court granted the mother’s application for an award of counsel fees pursuant to Domestic Relations Law §237(b), the court did not adequately consider the disparate financial circumstances of the parties (see id.; Frost v. Goldberg, 31 AD3d 374, 374-375; Matter of Madden v. Cavanaugh, 307 AD2d 266, 267). Accordingly, under the unique circumstances of this case, the Supreme Court improvidently exercised its discretion in granting the mother’s application for an award of counsel fees. In light of our determination, we need not reach the father’s remaining contentions. IANNACCI, J.P., MILLER, CHRISTOPHER and WAN, JJ., concur. By Dillon, J.P.; Wooten, Ford, Wan, JJ. PEOPLE OF STATE OF NEW YORK, res, v. TERRENCE DOWNES, app. Twyla Carter, New York, NY (Katheryne M. Martone 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 (James P. Sullivan, J.), dated December 2, 2013, 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. In 2004, the defendant was convicted, upon his plea of guilty, of rape in the first degree and sexual abuse in the first degree, among other crimes. At a hearing to determine the defendant’s risk level pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the defendant sought a downward departure from his presumptive risk level classification. The Supreme Court assessed the defendant 115 points on the risk assessment instrument, denied the defendant’s request for a downward departure, and designated him a level three sex offender. The defendant appeals. “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. Jones, 196 AD3d 515, quoting People v. Wyatt, 89 AD3d 112; see People v. Gillotti, 23 NY3d 841, 860; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). “If the defendant makes that twofold showing, the SORA court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an over-assessment of the defendant’s dangerousness and risk of sexual recidivism” (People v. Sofo, 168 AD3d 891, 891-892; see People v. Gillotti, 23 NY3d at 861; People v. Medina, 209 AD3d 775, 776). Here, the alleged mitigating factors identified by the defendant either were adequately taken into account by the Guidelines or did not warrant a downward departure (see People v. Gillotti, 23 NY3d at 861; People v. Balcerak, 212 AD3d 662). The defendant’s score on the Static-99 classifying him as a moderate to high risk to reoffend is not a circumstance which, standing alone, may be considered a mitigating factor (see People v. Robinson, 204 AD3d 708). DILLON, J.P., WOOTEN, FORD and WAN, JJ., concur. By Connolly, J.P.; Chambers, Wooten, Warhit, JJ. PEOPLE OF STATE OF NEW YORK, res, v. LAMAR R. JACKSON, app. Laurette D. Mulry, Riverhead, NY (Genevieve M. Cahill of counsel), for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Edward A. Bannan and Lauren Tan of counsel), for respondent. Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated March 7, 2022, 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. In June 1997, the defendant was convicted, upon his plea of guilty, of murder in the second degree and rape in the first degree. Following a hearing to determine the defendant’s risk level pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the County Court assessed the defendant a total of 125 points and applied an automatic override to a presumptive risk level three designation on the basis that the defendant caused the victim’s death (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]). The court denied the defendant’s request for a downward departure and designated him a level three sex offender. The defendant appeals. Since it was undisputed that the defendant caused the victim’s death, he was presumptively a level three sex offender pursuant to an automatic override, irrespective of the points scored on the risk assessment instrument (see Guidelines at 3; People v. Manson, 111 AD3d 688; People v. Henry, 107 AD3d 678, 679). In light of our determination that an override was established, we need not reach the defendant’s challenge to the assessment of points under risk factors 9, 10, and 13 (see People v. Wolm, 209 AD3d 682; People v. Barr, 205 AD3d 741; People v. Manson, 111 AD3d 688). Contrary to the defendant’s contention, the County Court did not err in rejecting his arguments for a downward departure from the presumptive risk level. 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 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 Guidelines at 4). 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 alleged mitigating factors identified by the defendant either were adequately taken into account by the Guidelines or did not warrant a downward departure (see People v. Gillotti, 23 NY3d at 861). Accordingly, the County Court properly designated the defendant a level three sex offender. CONNOLLY, J.P., CHAMBERS, WOOTEN and WARHIT, JJ., concur. By Duffy, J.P.; Maltese, Dowling, Warhit, JJ. REBECCA D. SCALA, app, v. SAMUEL ENRIQUE OCHOA BENITEZ, ET AL., res — (Index No. 609606/18) Dell & Dean, PLLC (Joseph G. Dell and Mischel & Horn, P.C., New York, NY [Scott T. Horn and Andrew J. Fisher], of counsel), for appellant. Jacobson & Schwartz, LLP, Jericho, NY (Brian S. Marcus and Henry J. Cernitz of counsel), for respondents. In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered September 2, 2020, and (2) a judgment of the same court dated October 6, 2020. The order granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident. The judgment, upon the order, is in favor of the defendants and against the plaintiff dismissing the complaint. ORDERED that the appeal from the order is dismissed; and it is further, ORDERED that the judgment is affirmed; and it is further, ORDERED that one bill of costs is awarded to the defendants. The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]). The plaintiff commenced this action to recover damages for personal injuries that she alleged she sustained in a motor vehicle accident. The defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident. In an order entered September 2, 2020, the Supreme Court granted the motion. Thereafter, a judgment was entered upon the order, in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff appeals. Contrary to the plaintiff’s contention, the defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955, 956-957). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the plaintiff’s shoulder and the cervical region of her spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law §5102(d) (see Staff v. Yshua, 59 AD3d 614). In addition, the defendants demonstrated, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law §5102(d) (see Wettstein v. Tucker, 178 AD3d 1121; John v. Linden, 124 AD3d 598, 599; Marin v. Ieni, 108 AD3d 656, 657). In opposition, the plaintiff failed to raise a triable issue of fact (see Wettstein v. Tucker, 178 AD3d at 1122). The parties’ remaining contentions need not be reached in light of our determination. DUFFY, J.P., MALTESE, DOWLING and WARHIT, JJ., concur. By Duffy, J.P.; Genovesi, Dowling, Taylor, JJ. CARLO FRANCOIS, res, v. CAROLINA BAEZ-MIESES, app, ET AL., def — (Index No. 601119/19) Martyn, Martyn, Smith & Murray, Mineola, NY (Marie E. Holbrook of counsel), for appellant. In an action to recover damages for personal injuries, the defendant Carolina Baez-Mieses appeals from an order of the Supreme Court, Nassau County (John Michael Galasso, J.), entered August 26, 2020. The order denied that defendant’s motion for summary judgment dismissing the complaint insofar as asserted against her. ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Carolina Baez-Mieses for summary judgment dismissing the complaint insofar as asserted against her is granted. On October 8, 2016, the parties were involved in a multivehicle accident. The plaintiff’s vehicle was struck in the rear by a vehicle operated by the defendant Latoya McKane and owned by the defendant Audrey McKane. This collision caused the plaintiff’s vehicle to cross into the opposite lane of traffic at an intersection and strike a vehicle operated by the defendant Carolina Baez-Mieses. The plaintiff commenced this action to recover damages for personal injuries. Baez-Mieses moved for summary judgment dismissing the complaint insofar as asserted against her, arguing that she was not responsible for the happening of the accident. In an order entered August 26, 2020, the Supreme Court denied the motion, and Baez-Mieses appeals. “A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” (Aponte v. Vani, 155 AD3d 929, 930 [internal quotation marks omitted]; see Ferguson v. City of New York, 209 AD3d 981). “‘A driver is not required to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic’” (Lee v. Ratz, 19 AD3d 552, 552, quoting Eichenwald v. Chaudhry, 17 AD3d 403, 404; see Browne v. Logan Bus Co., Inc., 156 AD3d 856, 857; Mandel v. Benn, 67 AD3d 746, 747). “‘Indeed, such a scenario presents an emergency situation, and the actions of the driver presented with [such a] situation must be judged in that context’” (Lee v. Ratz, 19 AD3d at 552-553, quoting Dormena v. Wallace, 282 AD2d 425, 427; see Wemyss v. Ruszczyk, 126 AD3d 888, 889; Vargas v. Akbar, 123 AD3d 1017, 1019). Here, Baez-Mieses established her prima facie entitlement to judgment as a matter of law by demonstrating that she was presented with an emergency situation not of her own making when the plaintiff’s vehicle crossed into her lane of traffic, and that she acted reasonably under the circumstances (see Vargas v. Akbar, 123 AD3d at 1019; Gajjar v. Shah, 31 AD3d 377, 378; Lee v. Ratz, 19 AD3d at 552-553). Although the parties’ deposition testimony submitted by Baez-Mieses in support of her motion conflicted as to whether she was stopped at a red light or traveling through the intersection with a green light at the time that her vehicle was struck by the plaintiff’s vehicle, the conflicting versions did not create a triable issue of fact. Under either scenario, Baez-Mieses established that the collision occurred almost immediately after she first observed the plaintiff’s vehicle, leaving her with no opportunity to avoid the collision (see Quinones v. Altman, 116 AD3d 686, 687; Jones v. Geoghan, 61 AD3d 638, 639). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted Baez-Mieses’s motion for summary judgment dismissing the complaint insofar as asserted against her. DUFFY, J.P., GENOVESI, DOWLING and TAYLOR, JJ., concur. By Iannacci, J.P.; Genovesi, Dowling, Voutsinas, JJ. PEOPLE OF STATE OF NEW YORK, res, v. MATTHEW LEE, app. Twyla Carter, New York, NY (Samuel Claflin 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 (Guy J. Mangano, Jr., J.), which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C. ORDERED that the order is affirmed, without costs or disbursements. The defendant was convicted in federal court, upon his plea of guilty, of distribution of child pornography (18 USC §2252[a][2]; [b][1]). After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court assessed the defendant a total of 90 points, including 30 points under risk factor 3 (number of victims), 30 points under risk factor 5 (age of victims), 20 points under risk factor 7 (victims were strangers), and 10 points under risk factor 8 (age at first sex offense), resulting in a presumptive risk level two designation. The court denied the defendant’s application for a downward departure and designated him a level two sex offender. The defendant appeals. 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…Guidelines; and (2) establishing the facts in support of its existence’” (People v. Tinsley, 210 AD3d 1025, 1026, quoting People v. Paterno, 203 AD3d 853, 853; 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 factors to determine whether the totality of the circumstances warrants a departure to avoid an over-…assessment of the defendant’s dangerousness and risk of sexual recidivism’” (People v. Paterno, 203 AD3d at 854, quoting People v. Gillotti, 23 NY3d 841, 861; see People v. Tinsley, 210 AD3d at 1026). Here, at the hearing, the defendant failed to demonstrate the existence of a mitigating factor not already taken into account by the Guidelines that would warrant a downward departure (see People v. Gillotti, 23 NY3d at 857). The defendant’s scores on alternative risk assessment instruments suggesting a “low” likelihood of reoffense do not, by themselves, constitute mitigating factors justifying a downward departure from the presumptive risk level (see People v. Clark, 186 AD3d 1418, 1418; People v. Santos, 174 AD3d 658, 659). Accordingly, the Supreme Court properly denied the defendant’s application for a downward departure and designated him a level two sex offender. The defendant’s remaining contention is unpreserved for appellate review, and, in any event, without merit. IANNACCI, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur. By Barros, J.P.; Rivera, Genovesi, Voutsinas, JJ. HSBC BANK USA, N.A., res, v. PAUL SCHNEIDER, ET AL., app, ET AL., def — (Index No. 3282/13) Charles Wallshein Esq. PLLC, Melville, NY, for appellants. Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (John Brigandi of counsel), for respondent. In an action to foreclose a mortgage, the defendants Paul Schneider and Marci Schneider appeal from an order of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), dated January 22, 2020. The order, insofar as appealed from, denied those defendants’ cross-motion for summary judgment dismissing the complaint insofar as asserted against them. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the cross-motion of the defendants Paul Schneider and Marci Schneider for summary judgment dismissing the complaint insofar as asserted against them is granted. In January 2013, the plaintiff commenced this action against the defendants Paul Schneider and Marci Schneider (hereinafter together the defendants), among others, to foreclose a mortgage on certain property located in Melville. After the defendants interposed an answer, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference. The defendants opposed the motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff failed to comply with RPAPL 1304. In an order dated January 22, 2020, the Supreme Court, among other things, denied the defendants’ cross-motion. The defendants appeal. RPAPL 1304(1) provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower,…including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” “The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower” (Citibank, N.A. v. Conti-Scheurer, 172 AD3d 17, 20; see RPAPL 1304[2]). Strict compliance with RPAPL 1304 notice to the borrower is a condition precedent to the commencement of a foreclosure action (see Citibank, N.A. v. Conti-Scheurer, 172 AD3d at 20; Citimortgage, Inc. v. Banks, 155 AD3d 936, 936-937). Here, the defendants established, prima facie, that the plaintiff did not comply with RPAPL 1304, since the 90-day notice was jointly addressed to both of the defendants (see Deutsche Bank Natl. Trust Co. v. Loayza, 204 AD3d 753, 755; Wells Fargo Bank, N.A. v. Yapkowitz, 199 AD3d 126, 134). Moreover, while the plaintiff contends that two identical copies of the notice were included in the mailing, one for each of the defendants, the plaintiff concedes that they were mailed in the same envelope, which was also improper (see Duetsche Bank Natl. Trust Co. v. Loayza, 204 AD3d at 755; Wells Fargo Bank, N.A. v. Yapkowitz, 199 AD3d at 134). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendants’ cross-motion for summary judgment dismissing the complaint insofar as asserted against them. BARROS, J.P., RIVERA, GENOVESI and VOUTSINAS, JJ., concur. By Iannacci, J.P.; Rivera, Wooten, Voutsinas, JJ. IN THE MATTER OF NANCY POMPONIO, app, v. PAUL M. DECHANCE, ETC., ET AL., res — (Index No. 172/20) Scheyer & Stern, LLC, Nesconset, NY (Patricia A. Stern of counsel), for appellant. Annette Eaderesto, Town Attorney, Farmingville, NY (John W. Doyle of counsel), for respondents. In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Brookhaven dated January 8, 2020, which, after a hearing, denied the petitioner’s application, inter alia, for area variances, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered September 25, 2020. The judgment denied the petition and dismissed the proceeding. ORDERED that the judgment is affirmed, with costs. In September 2019, the petitioner submitted an application to the Board of Zoning Appeals of the Town of Brookhaven (hereinafter the BZA) for a “Proposed 2 Lot Land Division” of certain real property owned by her and for area variances so as to enable her to construct a single-family residence on one of the subdivided lots. In a determination dated January 8, 2020, made after a hearing, the BZA denied the petitioner’s application. The BZA determined, inter alia, that the proposed subdivision of the property, a 17,839-square-foot lot, would create a residential lot that was only 4,000 square feet, which “would bear no resemblance to the established development pattern of this neighborhood,” in which the minimum required lot size was 22,500 square feet. In February 2020, the petitioner commenced this proceeding pursuant to CPLR article 78 to review the BZA’s determination. In a judgment entered September 25, 2020, the Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals. “In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion” (Matter of Greentree Country Club, Inc. v. City of New Rochelle, 119 AD3d 570, 571 [internal quotation marks omitted]; see CPLR 7803[3]; Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 613). “The determination of a local zoning board is entitled to great deference, and will be sustained as long as it has a rational basis, is not arbitrary and capricious, and is supported by substantial evidence” (Matter of North Shore F.C.P., Inc. v. Mammina, 22 AD3d 759, 759-760). “In making its determination [whether to grant an area variance], the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some other method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (Town Law §267-b[3][b]; see Matter of Sasso v. Osgood, 86 NY2d 374, 382). “‘The zoning board, in applying the balancing test, is not required to justify its determination with supporting evidence for each of the five statutory factors as long as its determination balancing the relevant considerations is rational’” (Matter of Foster v. DeChance, 210 AD3d 1085, 1086, quoting Matter of Humphreys v. Somers Zoning Bd. of Appeals, 206 AD3d 1000, 1002). Here, the BZA engaged in the required balancing test and considered the relevant statutory factors (see Matter of Foster v. DeChance, 210 AD3d at 1087; Matter of Massian v. Board of Zoning Appeals of the Town of Brookhaven, 210 AD3d 984, 986). The evidence before the BZA supported its determination that the petitioner’s proposed subdivision and requested variances would not conform to the established pattern of development and would produce an undesirable change in the character of the neighborhood (see Matter of Foster v. DeChance, 210 AD3d at 1087; Matter of Massian v. Board of Zoning Appeals of the Town of Brookhaven, 210 AD3d at 986; Matter of Estate of Stelling v. Gaudioso, 204 AD3d 788, 790). Further, while the petitioner asserted that her property did not require subdivision because she already owned two separate lots, the record demonstrates that the lots comprising the subject property had merged pursuant to Code of the Town of Brookhaven §85-2(C)(1) prior to the petitioner’s application (see Matter of Teixeira v. DeChance, 186 AD3d 1521, 1522; Matter of Harn Food, LLC v. DeChance, 159 AD3d 819, 820). Consequently, the BZA’s determination to the deny the petitioner’s application was rational and not arbitrary and capricious (see Matter of Foster v. DeChance, 210 AD3d at 1087). Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding. IANNACCI, J.P., RIVERA, WOOTEN and VOUTSINAS, JJ., concur. By Dillon, J.P.; Maltese, Wooten, Warhit, JJ. EMILIO GONZALEZ, ET AL., app, v. MADISON SIXTY, LLC, res, ET AL., def (AND A THIRD-PARTY ACTION) — (Index No. 13395/15) Gorayeb & Associates, P.C., New York, NY (John M. Shaw of counsel), for appellants. In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated January 15, 2020. The order, insofar as appealed from, denied that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §240(1) insofar as asserted against the defendant Madison Sixty, LLC. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §240(1) insofar as asserted against the defendant Madison Sixty, LLC, is granted. The plaintiff Emilio Gonzalez (hereinafter the injured plaintiff) allegedly was injured while working at a construction project at premises owned by the defendant Madison Sixty, LLC (hereinafter Madison). On the date of the accident, the injured plaintiff and his coworkers were attempting to transport a compressor, which weighed approximately 300 pounds, from a sidewalk to the street. To reach the street, the compressor had to cross a trench approximately two feet deep, which the workers had covered with a ramp made of plywood. As the workers moved the compressor across the ramp, the ramp broke, causing the compressor to fall into the trench and the handle of the compressor to strike the injured plaintiff’s foot. The injured plaintiff, and his wife suing derivatively, commenced this personal injury action, alleging common-law negligence and violations of the Labor Law. The plaintiffs moved, inter alia, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §240(1) insofar as asserted against Madison. Madison opposed the motion, contending, inter alia, that the accident was not caused by the type of elevation-related risk contemplated by Labor Law §240(1), and that the injured plaintiff’s conduct was the sole proximate cause of the accident. By order dated January 15, 2020, the Supreme Court, among other things, denied that branch of the plaintiffs’ motion. The plaintiffs appeal. “Labor Law §240(1) imposes absolute liability upon an owner or contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure” (Bland v. Manocherian, 66 NY2d 452, 459). “Whether a plaintiff is entitled to recovery under Labor Law §240(1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies” (Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7). “[T]he single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603; see Kandatyan v. 400 Fifth Realty, LLC, 155 AD3d 848, 850). “In this regard, in addressing falling object cases…the relevant inquiry is ‘whether the harm flows directly from the application of the force of gravity to the object’” (Kandatyan v. 400 Fifth Realty, LLC, 155 AD3d at 850, quoting Runner v. New York Stock Exch., Inc., 13 NY3d at 604). Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the cause of action alleging a violation of Labor Law §240(1) insofar as asserted against Madison. In support of their motion, the plaintiffs submitted evidence sufficient to establish, prima facie, that the injured plaintiff’s accident was proximately caused by Madison’s failure to provide appropriate safety devices to protect against gravity-related hazards posed by maneuvering the compressor over the trench (see Rodriguez v. Waterfront Plaza, LLC, 207 AD3d 489, 490; Rubio v. New York Proton Mgt., LLC, 192 AD3d 438, 439; McCallister v. 200 Park, L.P., 92 AD3d 927, 928-929). The plaintiffs also demonstrated that the injured plaintiff’s accident was the result of an elevation differential within the scope of Labor Law §240(1). Although the compressor only fell a short distance, given the weight of the compressor and the amount of force it was capable of generating, the height differential was not de minimis (see Runner v. New York Stock Exch., Inc., 13 NY3d at 605; Marrero v. 2075 Holding Co. LLC, 106 AD3d 408, 409; McCallister v. 200 Park, L.P., 92 AD3d at 928-929; Pritchard v. Tully Const. Co., 82 AD3d 730, 731). Thus, the injured plaintiff suffered harm that flowed directly from the application of the force of gravity to the compressor (see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 10; McCallister v. 200 Park, L.P., 92 AD3d at 929). In opposition, Madison failed to raise a triable issue of fact as to the absence of a statutory violation or as to whether the injured plaintiff’s own conduct was the sole proximate cause of his accident (see McCallister v. 200 Park, L.P., 92 AD3d at 929). Accordingly, the Supreme Court should have granted that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §240(1) insofar as asserted against Madison. DILLON, J.P., MALTESE, WOOTEN and WARHIT, JJ., concur. By Dillon, J.P.; Miller, Wooten, Taylor, JJ. THE PEOPLE, ETC., res, v. DANIEL NIETO, app — (Index No. 215/15) Patricia Pazner, New York, NY (Cynthia Colt of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent. Appeal by the defendant from a judgment of the Supreme Court, Richmond County (William E. Garnett, J.), rendered July 27, 2017, convicting him of criminal sexual act in the first degree and sexual abuse in the first degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 15 years, to be followed by a period of postrelease supervision of 10 years, on the conviction of criminal sexual act in the first degree, to run concurrently with a determinate term of imprisonment of 5 years, to be followed by a period of postrelease supervision of 3 years, on the conviction of sexual abuse in the first degree. ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the conviction of criminal sexual act in the first degree from a determinate term of imprisonment of 15 years, to be followed by a period of postrelease supervision of 10 years, to a determinate term of imprisonment of 10 years, to be followed by a period of postrelease supervision of 5 years; as so modified, the judgment is affirmed. Contrary to the defendant’s contention, the trial court properly granted the People’s challenge for cause to a prospective juror who demonstrated a “disinclination to render a guilty verdict in the absence of testimony” from more than one witness (People v. White, 213 AD2d 507, 508; see People v. Acosta, 88 AD3d 483) and was unable to give “unequivocal assurance[s]” that he could follow the law (People v. Acosta, 88 AD3d at 484). Further, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633). The sentence imposed was excessive to the extent indicated. The defendant’s remaining contentions are without merit. DILLON, J.P., MILLER, WOOTEN and TAYLOR, JJ., concur. By Dillon, J.P.; Rivera, Maltese, Voutsinas, JJ. HANAN G. MILLER, app, v. ESTHER EVE MILLER, res — (Index No. 201377/16) Law Office of Tzvi Y. Hagler, P.C., Valley Stream, NY, for appellant. Jeffrey S. Schecter & Associates, P.C., Garden City, NY (Joey Michaels of counsel), for respondent. In an action for a divorce and ancillary relief, the plaintiff appeals from stated portions of an amended judgment of divorce of the Supreme Court, Nassau County (Jeffrey A. Goodstein, J.), dated September 26, 2019. The amended judgment of divorce, upon a decision of the same court dated June 13, 2019, made after a nonjury trial, inter alia, (1) valued Healthcare Medical Services, PLLC, at the sum of $2,885,100, (2) awarded the defendant 20% of the value of Healthcare Medical Services, PLLC, (3) awarded the defendant the sum of $5,000 per month in child support, (4) directed the plaintiff to pay 75% of all child support add-ons, and (5) failed to direct that the plaintiff could claim any of the parties’ unemancipated children as dependents on his personal income tax returns. ORDERED that the amended judgment of divorce is modified, on the law, by adding thereto a provision directing that the plaintiff is authorized to declare all of the parties’ unemancipated children as dependents on his personal income tax returns; as so modified, the amended judgment of divorce is affirmed insofar as appealed from, without costs or disbursements. The parties were married on June 21, 1994, and have eight children. The plaintiff is a medical doctor and the sole owner of two professional companies, Hanan Miller, MD, P.C., and Healthcare Medical Services, PLLC (hereinafter HMS). The defendant owns and operates an upscale baby clothing store called Lavish Layette. The plaintiff commenced this action for a divorce and ancillary relief. The parties entered into a stipulation resolving issues of custody and parental access, whereby they agreed that the defendant would have sole legal and residential custody of the parties’ unemancipated children. A nonjury trial was held on the issues, inter alia, of equitable distribution, maintenance, and child support. In a decision dated June 13, 2019, the Supreme Court, among other things, imputed an annual income of $80,000 to the defendant, determined that the defendant was entitled to child support in excess of the statutory cap, valued HMS at the sum of $2,885,100, and awarded the defendant 20% of the value of HMS. An amended judgment of divorce was issued upon the decision. The plaintiff appeals from stated portions of the amended judgment of divorce. The plaintiff’s contention that insufficient income was imputed to the defendant is without merit. “A court is not bound by a party’s account of his or her own finances, and where a party’s account is not believable, the court is justified in finding a true or potential income higher than that claimed” (Matter of Davis v. Shihadeh, 209 AD3d 733, 734 [internal quotation marks omitted]). “The court may impute income based on the parent’s employment history, future earning capacity, educational background, or money received from friends and relatives” (Pilkington v. Pilkington, 185 AD3d 844, 846 [internal quotation marks omitted]). The court is “[a]fforded considerable discretion in determining whether to impute income to a [party], and the court’s credibility determinations will be accorded deference on appeal” (Matter of Davis v. Shihadeh, 209 AD3d at 734 [internal quotation marks omitted]). Here, the defendant testified at the trial that her amended 2017 tax return showed that she had an annual income of $45,436 from her business, Lavish Layette. However, the bookkeeper for Lavish Layette testified that the defendant received disbursements from the business in 2017 totaling $64,836.71. Based upon the defendant’s admissions that she utilized cash from the business to pay for certain personal expenses, as well as some employee salaries, the Supreme Court providently exercised its discretion in imputing an annual income of $80,000 to the defendant. “The Child Support Standards Act sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling known as the statutory cap, which in this case was $148,000″ (Moradi v. Buhl, 201 AD3d 928, 928-929 [citation and internal quotation marks omitted]; see Domestic Relations Law §240[1-b][c]). “Where the combined parental income exceeds the statutory cap, the court, in fixing the basic child support obligation on income over the statutory cap, has the discretion to apply the factors set forth in Domestic Relations Law §240(1-b)(f), or to apply the statutory percentages, or to apply both” (Moradi v. Buhl, 201 AD3d at 929; see Domestic Relations Law §240[1-b][c][3]). “The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap” (Moradi v. Buhl, 201 AD3d at 929). “Such articulation should reflect a careful consideration of the stated basis for the court’s exercise of discretion, the parties’ circumstances, and the court’s reasoning why there should or should not be a departure from the prescribed percentage” (id.). Here, the Supreme Court stated that it applied the child support percentage to the amount above the statutory cap primarily due to the parties’ considerable income and the needs of the children. Under the circumstances presented, the court providently exercised its discretion in doing so (see id.; Candea v. Candea, 173 AD3d 663, 665; Matter of Santman v. Schonfeldt, 159 AD3d 914, 915; Matter of Keith v. Lawrence, 113 AD3d 615, 616). Where, as here, the noncustodial parent is contributing the majority of the financial support of the parties’ children, “the court may determine that the noncustodial parent is entitled to declare the children as dependents on his or her income tax returns” (Matter of Jurgielewicz v. Jurgielewicz, 31 AD3d 639, 639; see Cohen v. Cohen, 177 AD3d 848, 854; Frei v. Pearson, 244 AD2d 454, 457). Accordingly, under the circumstances here, the plaintiff is entitled to declare all of the parties’ unemancipated children as his dependents for income tax purposes (see Matter of Jurgielewicz v. Jurgielewicz, 31 AD3d at 639; Frei v. Pearson, 244 AD2d at 457). “The valuation of a marital asset must be founded in economic reality. However, [t]here is no uniform rule for fixing the value of a business for the purpose of equitable distribution. Valuation is an exercise properly within the fact-finding power of the trial court, guided by expert testimony. The determination of the factfinder as to the value of a business, if within the range of the testimony presented, will be accorded deference on appeal if it rests primarily on the credibility of expert witnesses and their valuation techniques” (Davenport v. Davenport, 199 AD3d 637, 639-640 [citation and internal quotation marks omitted]). “Trial courts are vested with broad discretion in determining equitable distribution of marital property, and the determination should not be disturbed on appeal unless the court has improvidently exercised that discretion” (id. at 640). Here, the Supreme Court providently exercised its discretion in determining, based upon its credibility findings and the report of the court-appointed neutral forensic expert, that HMS should be valued at the sum of $2,885,100. Contrary to the plaintiff’s contention, it was not an improvident exercise of the Supreme Court’s discretion to award the defendant 20% of the value of HMS, considering the parties’ relative financial contributions, the length of the marriage, the number and ages of the parties’ children, the distribution to the plaintiff of 20% of the value of the defendant’s business, and the sacrifices made by the defendant for the sake of the advancement of the plaintiff’s education and career (see id. at 641; Hofmann v. Hofmann, 173 AD3d 531, 532-533; Cappiello v. Cappiello, 110 AD2d 608, 609, affd 66 NY2d 107). DILLON, J.P., RIVERA, MALTESE and VOUTSINAS, JJ., concur. By Duffy, J.P.; Rivera, Genovesi, Taylor, JJ. FLORAL PARK OPHTHALMOLOGY, P.C., ET AL., app, v. RUSKIN MOSCOU FALTISCHEK, LLP, ET AL., res — (Index No. 602899/19) Judah S. Shapiro (R. Thomas Masters, Garden City, NY, of counsel), for appellants. L’Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY (Marian C. Rice of counsel), for respondents. In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Vito M. DeStefano, J.), entered December 11, 2019. The order, insofar as appealed from, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice. ORDERED that the order is affirmed insofar as appealed from, with costs. In February 2019, the plaintiffs commenced this action against the defendants, former counsel to the plaintiffs, inter alia, to recover damages for legal malpractice. The plaintiffs alleged, among other things, that the defendants committed legal malpractice in their representation of the plaintiffs in a breach of contract action commenced by the plaintiffs against a nonparty medical billing services provider (hereinafter the underlying action) and, with respect to the plaintiff Lawrence F. Jindra, in a “disability insurance claim matter.” According to the plaintiffs, the defendants pressured the plaintiffs to “drop” the underlying action. The plaintiffs also alleged, inter alia, that the defendants, through legal nonfeasance, caused Jindra’s disability insurance policy to lapse. Thereafter, the defendants moved to dismiss the complaint based on documentary evidence, the expiration of the statute of limitations, and the failure to state a cause of action. As is relevant to the appeal, by order entered December 11, 2019, the Supreme Court granted that branch of the defendants’ motion which was to dismiss the cause of action alleging legal malpractice. The plaintiffs appeal. “On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Katsoris v. Bodnar & Milone, LLP, 186 AD3d 1504, 1505 [internal quotation marks omitted]; see Mackey Reed Elec., Inc. v. Morrone & Assoc., P.C., 125 AD3d 822, 822). “To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Katsoris v. Bodnar & Milone, LLP, 186 AD3d at 1505 [internal quotation marks omitted]; see Keness v. Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 812). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Katsoris v. Bodnar & Milone, LLP, 186 AD3d at 1506 [internal quotation marks omitted]). “[A] plaintiff must [also] show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney’s negligence” (Mackey Reed Elec., Inc. v. Morrone & Assoc., P.C., 125 AD3d at 823) and that the attorney’s negligence caused actual and ascertainable damages (see McCoy v. Feinman, 99 NY2d 295, 301-302). “A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (Schiller v. Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757 [internal quotation marks omitted]). Here, the plaintiffs failed to plead that, but for the defendants’ negligence, they would have prevailed in the underlying action (see Katsoris v. Bodnar & Milone, LLP, 186 AD3d at 1506; Keness v. Feldman, Kramer & Monaco, P.C., 105 AD3d at 813). To the contrary, as noted by the Supreme Court, it is uncontroverted that the plaintiffs settled the underlying action in order to avoid potential criminal liability for fraud. To the extent that the complaint alleged that the plaintiffs would have fared better at trial or in the settlement, the allegations in the complaint were conclusory and lacked factual support (see Katsoris v. Bodnar & Milone, LLP, 186 AD3d at 1506). The plaintiffs’ “hindsight criticism of counsels’ reasonable course of action…does not rise to the level of legal malpractice” (Schiller v. Bender, Burrows & Rosenthal, LLP, 116 AD3d at 758 [citation and internal quotation marks omitted]). With respect to so much of the cause of action alleging legal malpractice as it relates to Jinder’s disability insurance claim matter, the plaintiffs also failed to set out the elements of a legal malpractice cause of action, including omitting certain basic factual information such as any allegations that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by any member of the legal profession and damages (see Keness v. Feldman, Kramer & Monaco, P.C., 105 AD3d at 812). Moreover, the defendants established that, to the extent that the cause of action alleging legal malpractice was predicated upon Jindra’s disability insurance claim matter, it was barred by the applicable statute of limitations (see Webster v. Sherman, 165 AD3d 738, 741; Alizio v. Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735). Accordingly, the Supreme Court correctly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice. In light of the foregoing, we need not reach the parties’ remaining contentions. DUFFY, J.P., RIVERA, GENOVESI and TAYLOR, JJ., concur. By Barros, J.P.; Rivera, Genovesi, Voutsinas, JJ. TREASURE ISLAND OF ASBURY PARK SELF-STORAGE, LLC, res, v. MBAR REALTY, LLC, ET AL., app — (Index No. 707622/16) Braunstein Turkish, LLP, Woodbury, NY (William J. Turkish of counsel), for appellants. Seyfarth Shaw, LLP, New York, NY (Jonathan P. Wolfert and Owen Wolfe of counsel), for respondent. In an action for specific performance of a contract for the sale of real property and for injunctive relief, the defendants appeal from a judgment of the Supreme Court, Queens County (Leonard N. Florio, Ct. Atty. Ref.), entered January 30, 2020. The judgment, upon a decision of the same court dated November 4, 2019, made after a nonjury trial, is in favor of the plaintiff and against the defendants, inter alia, directing the defendants to specifically perform the contract for the sale of real property, permanently enjoining the defendants from, among other things, selling the property to any third party, and dismissing the defendants’ counterclaim to retain the refundable portion of the plaintiff’s down payment as liquidated damages for breach of contract. ORDERED that the judgment is modified, on the law and the facts, by deleting the provisions thereof (1) awarding judgment in favor of the plaintiff on the complaint, (2) directing the defendants to specifically perform the contract for the sale of real property, and (3) permanently enjoining the defendants from, among other things, selling the property to any third party, and substituting therefor a provision dismissing the complaint; as so modified, the judgment is affirmed, without costs or disbursements. In 2014, the plaintiff, Treasure Island of Asbury Park Self-Storage, LLC (hereinafter the buyer), entered into a contract to purchase real property from the defendants, MBAR Realty, LLC, and MBAR #2 Realty, LLC (hereinafter together the sellers). Pursuant to the contract, the buyer paid a down payment, which was deposited in an escrow account, and the remainder of the purchase price was due at the closing. The contract required the sellers to remove, prior to the closing, all items disclosed on a title report on the property, except for certain specified permitted exceptions. The sellers were not required to expend more than $100,000 in complying with that obligation. The title report revealed several nonpermitted exceptions to title. In March 2015, the parties executed a fourth amendment to the contract (hereinafter the amendment) which provided, inter alia, that “[p]rior to the Closing and as a contingency to Buyer’s obligations to close, Buyer shall have obtained approval from the Board of Standards and Appeals (BSA) consistent with” a certain permitted use of the property (hereinafter the permitted use). The amendment further provided that “the Closing shall occur on or about the date that is the earlier of (A) thirty (30) days following the date on which Buyer shall have advised Seller that it has obtained BSA approval for the Permitted Use or (B) five (5) business days following the date on which Seller shall have served Buyer with a closing notice…which closing notice may not be served by Seller prior to April 1, 2016.” The amendment also provided that “if Seller shall have served a Closing Notice and the BSA approval for the Permitted Use shall not then have been obtained, Buyer may choose to close in accordance with the Closing Notice or to terminate this Agreement.” In the event that the buyer chose to terminate the agreement, the buyer would be entitled to the return of the refundable portion of the deposit. In this regard, the amendment provided that $75,000 of the initial $275,000 deposit would be distributed to the seller and become nonrefundable. By letter dated March 28, 2016, which was entitled “NOTICE OF DEFAULT – IMMEDIATE ATTENTION IS WARRANTED,” the buyer advised the sellers that several nonpermitted exceptions appeared on the title report, and that the sellers were obligated to expend up to $100,000 to cure those exceptions. The letter warned that, by failing to attempt to cure the exceptions, the sellers were in default and that they had 30 days to cure the default. By letter dated April 1, 2016, the seller responded that it was “prepared to resolve any exceptions within Seller’s control to the satisfaction of the title company at or prior to closing.” Additionally, the sellers assured that “[t]o the extent that Buyer has agreed to provide Seller with documents required to be executed to cure any additional exceptions prior to Closing, Seller is ready, willing and able to cause the execution of such documents prior to closing.” Consistent with the sellers’ right to set a closing date under the amendment, the letter set a closing date for April 21, 2016. By letter dated April 5, 2016, the buyer objected to the sellers’ attempt to establish a closing date on the ground that there remained exceptions to title “that are required to be cleared to close,” and warned that the sellers had “not expended any sums or efforts with respect to the clearance of title issues that are, in part, the subject of the Notice of Default.” The buyer advised that it “expressly reserve[d] the right to pursue an action for specific performance to compel Seller’s performance pursuant to the terms of the Agreement,” and that “title clearance” was a “condition precedent to the occurrence of Closing.” By letter dated May 5, 2016, the sellers responded by setting a new closing date for June 3, 2016, “time being of the essence,” and warning that the sellers would retain the refundable portion of the down payment if the buyer failed to tender performance on that date. By letter dated May 12, 2016, the buyer again rejected the closing date based upon its claim that the sellers had to first clear title issues prior to scheduling a closing date. By email dated May 24, 2016, the buyer’s counsel warned that “we really don’t want to file a litigation but, unless you withdraw the [time-of-the-essence] letter (without prejudice), you are leaving us no alternative.” That same day, the sellers’ counsel responded by email stating, “I will agree to extend the [time-of-the-essence] closing for an additional 2 weeks to get things in order and try to resolve,” and that he would “get back” to the buyer’s counsel by the end of the week. Two days later, the buyer’s counsel emailed, “thank you for the courtesy; this is acceptable. I hope that you can make progress on the title issues in the two week period.” On June 28, 2016, the buyer commenced this action seeking specific performance of the contract of sale and injunctive relief. The sellers interposed an answer with a counterclaim alleging, inter alia, that the buyer breached the contract and seeking to retain the buyer’s entire down payment as liquidated damages. After a nonjury trial, the Supreme Court entered a judgment in favor of the buyer and against the sellers, inter alia, directing the sellers to specifically perform the contract, permanently enjoining the sellers from, among other things, selling the property to any third party, and dismissing the sellers’ counterclaim. The sellers appeal. “Where, as here, a nonjury trial is involved, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that in a close case the trial judge had the advantage of seeing the witnesses” (Rha v. Blangiardo, 189 AD3d 1098, 1099; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492, 499; J. D’Addario & Co., Inc. v. Embassy Indus., Inc., 83 AD3d 1001, 1002, affd on other grounds 20 NY3d 113). “‘The elements of a cause of action for specific performance of a contract [for the sale of real property] are that the plaintiff substantially performed its contractual obligations and was [ready,] willing and able to perform its remaining obligations, that defendant was able to convey the property, and that there was no adequate remedy at law’” (Finkelstein v. Lynda, 166 AD3d 948, 949, quoting EMF Gen. Contr. Corp. v. Bisbee, 6 AD3d 45, 51). “A party seeking specific performance of a contract for the sale of real property is required to establish not only that he or she was ready, willing, and able to close on the scheduled closing date, but also that the other party was in default” (Latora v. Ferreira, 102 AD3d 838, 839). Here, contrary to the Supreme Court’s determination, the buyer failed to establish either that it was ready, willing, and able to close on a scheduled closing date, or that the sellers were in default. First, at the time of the commencement of the action in June 2016, the buyer had not obtained BSA approval for its planned construction of a storage facility on the property. Even so, the amendment allowed the sellers to serve a closing notice on the buyer as early as April 1, 2016, and force the buyer to choose either to close without the BSA approval or terminate the agreement and obtain a return of the refundable portion of its down payment. At the trial, the buyer failed to establish that, as of the date of the commencement of this action, it was ready, willing, and able to close despite not obtaining BSA approval for its planned construction. Moreover, “[i]n order to place the [seller] in default for a claimed failure to provide clear title, the [buyer] normally must first tender performance himself [or herself] and demand good title” (R.C.P.S. Assoc. v. Karam Devs., 258 AD2d 510, 511 [internal quotation marks omitted]; see Vision Enters., LLC v. 111 E. Shore, LLC, 92 AD3d 868, 870). “Tender of performance is excused only where the title defect is not curable, for in such a case the tendering of performance would be an idle and useless ceremony” (R.C.P.S. Assoc. v. Karam Devs., 258 AD2d at 511). Here, the buyer did not set a closing date to tender performance and demand good title, and, indeed, objected to the sellers’ attempts to set a closing date (see Xelo v. Hamilton, 198 AD3d 710, 713; 130 Third St. Loft, LLC v. HKF, Inc., 164 AD3d 724, 725; Contreras v. Klein, 17 AD3d 395, 395; Zelmanovitch v. Ramos, 299 AD2d 353, 354). Further, contrary to the buyer’s contention, the sellers were not in default under the contract for their alleged failure to clear the exceptions to title during the period of time unilaterally set by the buyer in its notice of default letter. The contract required the sellers to clear the exceptions to title by the closing date, and the sellers never repudiated their obligation to do so. Accordingly, the buyer failed to establish that it was entitled to specific performance of the contract of sale or injunctive relief. As such, the Supreme Court should have dismissed the complaint. Contrary to the sellers’ contention, the sellers failed to establish on their counterclaim that the buyer breached the contract by failing to appear at a time-of-the-essence closing scheduled for June 17, 2016. By letter dated May 5, 2016, the sellers properly set a time-of-the-essence closing for June 3, 2016. However, by email dated May 24, 2016, the sellers’ attorney extended the closing for “an additional 2 weeks to get things in order and try to resolve.” The sellers’ email was inadequate to make time of the essence because it did not clearly and unambiguously set a new date and time for closing, and it did not inform the buyer that it would be considered in default if it did not perform by a given date (see Krishna v. Jasper Old Westbury 66 LLC, 175 AD3d 600, 602; Latora v. Ferreira, 102 AD3d at 839). Thus, the buyer was not in default for not appearing at a closing (see Krishna v. Jasper Old Westbury 66 LLC, 175 AD3d at 602). Accordingly, the Supreme Court properly dismissed the sellers’ counterclaim. BARROS, J.P., RIVERA, GENOVESI and VOUTSINAS, JJ., concur. By Duffy, J.P.; Rivera, Genovesi, Taylor, JJ. SVETLANA ANUCHINA, app, v. MARINE TRANSPORT LOGISTICS, INC., ET AL., res — (Index No. 503777/19) Law Office of Eduardo Glas, P.C., New York, NY (Eduardo J. Glas of counsel), for appellant. Garry Pogil, New York, NY, for respondents. In an action for declaratory relief, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated May 3, 2021. The order denied the plaintiff’s motion pursuant to CPLR 3126, inter alia, to strike the defendants’ answer. ORDERED that the order is affirmed, with costs. In February 2019, the plaintiff commenced this action for declaratory relief against the defendant Marine Transport Logistics, Inc., and its president, the defendant Alla Solovyeva. In February 2020, the plaintiff moved to compel the defendants to produce certain documents, including emails. In an order dated September 3, 2020, the Supreme Court, inter alia, directed the defendants, who had previously produced thousands of pages of emails, to either produce all emails or to provide an affidavit attesting to their search efforts pursuant to Jackson v. City of New York (185 AD2d 768). The defendants thereafter produced an affidavit in response to the order, but the plaintiff objected to the affidavit as insufficient. Following a series of emails between the parties’ attorneys, in March 2021, the defendants’ attorney agreed to his adversary’s requests and indicated that the defendants would search for additional emails. The plaintiff’s attorney noted that he would give the defendants 20 days to provide the materials. The defendants’ attorney subsequently asked the plaintiff’s attorney for an extension of approximately one month on the deadline. The defendants’ attorney noted that one of the defendants was experiencing some medical issues and was unable to access her office. The plaintiff’s attorney rejected this request and thereafter moved pursuant to CPLR 3126, among other things, to strike the defendants’ answer due to their alleged failure to provide court-ordered discovery. In an order dated May 3, 2021, the court denied the motion, and the plaintiff appeals. Initially, the Supreme Court incorrectly determined that the plaintiff failed to submit word count certifications with her motion pursuant to the Uniform Civil Rules for the Supreme Court and the County Court (22 NYCRR 202.8-b[a], [c]). The record reveals that the plaintiff submitted the required certifications. Even if the plaintiff had failed to do so, the court should have overlooked such a technical defect (see Wetzel v. Systra USA Inc., 2022 NY Slip Op 33728[U], *2 [Sup Ct, NY County]; Young v. City of New York, 164 AD3d 711, 712-713; Macias v. City of Yonkers, 65 AD3d 1298, 1299). However, the Supreme Court properly denied the plaintiff’s motion due to her attorney’s failure to comply with the good faith requirements of 22 NYCRR 202.7. Pursuant to that rule, “‘a motion relating to disclosure must be accompanied by an affirmation from moving counsel attesting that he or she has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion’” (Steele v. Samaritan Found., Inc., 208 AD3d 1265, 1267 [alterations omitted], quoting Kemp v. 1000 Broadway, LLC, 203 AD3d 1153, 1153). The purpose of this rule is “to avoid the unnecessary expenditure of limited judicial resources” in circumstances “where the attorneys for the parties could resolve…the issues that would be raised in a motion [through constructive dialogue]” (Nikpour v. City of New York, 179 Misc 2d 928, 930 [Sup Ct, NY County]; cf. Capacity Group of NY, LLC v. Duni, 186 AD3d 1482, 1483). “The affirmation ‘shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held’” (Winter v. ESRT Empire State Bldg., LLC, 201 AD3d 842, 843-844, quoting 22 NYCRR 202.7[c]). Assuming such good cause does not exist, the affirmation must “refer to…communications between the parties…evinc[ing] a diligent effort by the [movant] to resolve the discovery dispute” (Roye v. Gelberg, 172 AD3d 1260, 1263). “The good faith efforts may be explained in counsel’s primary affirmation submitted in support of the motion or in a separate affirmation that serves specifically to discuss such efforts” (Steele v. Samaritan Found., Inc., 208 AD3d at 1267), although the latter is the “better practice” (Encalada v. Riverside Retail, LLC, 175 AD3d 467, 468). “‘Failure to provide [such] an affirmation…warrants denial of the motion’” (Steele v. Samaritan Found., Inc., 208 AD3d at 1267, quoting Winter v. ESRT Empire State Bldg., LLC, 201 AD3d at 844). Here, the affirmation of the plaintiff’s attorney failed to evince a sufficiently diligent effort to resolve the dispute before seeking judicial intervention (see Winter v. ESRT Empire State Bldg., LLC, 201 AD3d at 844). Moreover, contrary to the plaintiff’s contention, the rule was applicable to her motion (see e.g. Steele v. Samaritan Found., Inc., 208 AD3d at 1266-1267; Bronstein v. Charm City Hous., LLC, 175 AD3d 454, 454-455). Accordingly, the Supreme Court properly denied the plaintiff’s motion pursuant to CPLR 3126, inter alia, to strike the defendants’ answer. In light of our determination, we need not reach the plaintiff’s remaining contentions. DUFFY, J.P., RIVERA, GENOVESI and TAYLOR, JJ., concur. By Nelson, J.P.; Rivera, Ford, Taylor, JJ. MICHAEL MARTONE, ETC., app, v. DAVID HUANG, ETC., res, ET AL., def — (Index No. 8970/12) Reingold & Tucker, Brooklyn, NY (Jordan W. Tucker of counsel), for appellant. Keller, O’Reilly & Watson, P.C., Woodbury, NY (Patrick J. Engle of counsel), for respondent. In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Paul J. Baisley, Jr., J.), dated May 29, 2020, and (2) an order of the same court dated February 17, 2021. The order dated May 29, 2020, denied the plaintiff’s motion, inter alia, to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar. The order dated February 17, 2021, insofar as appealed from, denied that branch of the plaintiff’s motion which was for leave to reargue his motion, inter alia, to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar. ORDERED that the appeal from the order dated February 17, 2021, is dismissed, as no appeal lies from an order denying reargument; and it is further, ORDERED that the order dated May 29, 2020, is affirmed; and it is further, ORDERED that one bill of costs is awarded to the defendant David Huang. In March 2012, the plaintiff commenced this action, inter alia, to recover damages for medical malpractice in connection with care rendered to Maria Martone (hereinafter the decedent), who died in June 2010 allegedly due to medications prescribed by the defendant David Huang. At a final pretrial conference, the plaintiff’s counsel advised the Supreme Court that he was “having difficulties with” the plaintiff. According to counsel, the plaintiff refused his attorneys’ suggestion that he resign as administrator of the decedent’s estate, and the plaintiff moved to Florida without informing his attorneys. The action was struck from the calendar on April 26, 2018, and automatically dismissed on April 26, 2019, pursuant to CPLR 3404. In September 2019, the plaintiff moved, inter alia, to vacate the dismissal of the action and to restore the action to the trial calendar. The Supreme Court denied the motion, and the plaintiff appeals. “A plaintiff seeking to vacate a dismissal of an action and to restore the action to the trial calendar more than one year after it has been marked off, and after it has been dismissed pursuant to CPLR 3404, must demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendants” (Hagler v. Southampton Hosp., 164 AD3d 479, 480). “The plaintiff is required to satisfy all four components of the test before the dismissal can be vacated and the case restored” (id. at 480). Here, the plaintiff failed to demonstrate that he had a potentially meritorious cause of action. Neither the attorney’s affirmation nor the unsworn physician’s affirmation submitted in support of the motion constituted evidence of a potentially meritorious cause of action, as neither affirmant had personal knowledge of the underlying facts of the medical malpractice cause of action (see Byner v. Murray-Taylor, 208 AD3d 1214, 1216; cf. Public Adm’r v. Levine, 142 AD3d 467, 469; Hogan v. Schwartz, 119 AD3d 650, 652). Moreover, the efforts of the plaintiff’s counsel to appoint a new administrator of the decedent’s estate were insufficient to excuse the plaintiff’s failure to restore the action to the trial calendar before it was automatically dismissed where counsel’s efforts were delayed by the plaintiff’s own attempts to abandon the action (see Hagler v. Southampton Hosp., 164 AD3d at 480-481; Hewitt v. Booth Mem. Med. Ctr., 178 AD2d 401, 402). Finally, the plaintiff failed to demonstrate that the defendants would not be prejudiced if the action were to be restored to the trial calendar, given the nine-year delay between the date this action accrued and the date of the plaintiff’s motion, inter alia, to vacate the dismissal of the action (see Hagler v. Southampton Hosp., 164 AD3d at 481; U. Joon Sung v. Feng Ue Jin, 127 AD3d 740, 741). The plaintiff’s remaining contentions are without merit. Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion, inter alia, to vacate the dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar. BRATHWAITE NELSON, J.P., RIVERA, FORD and TAYLOR, JJ., concur. By Nelson, J.P.; Rivera, Ford, Taylor, JJ. IN THE MATTER OF LOYAL ORDER OF THE MOOSE 1421, res, v. BOARD OF ASSESSORS, ET AL., app — (Index No. 614404/17) Scott DeSimone, P.C., Peconic, NY, for appellants. Lite & Russell, PLLC, West Islip, NY (Justin Lite of counsel), for respondent. In a proceeding pursuant to Real Property Tax Law article 7 to review a real property tax assessment for the 2017/2018 tax year, Board of Assessors and Board of Assessment Review of the Town of Babylon appeal from an order of the Supreme Court, Suffolk County (John J. Leo, J.), dated March 1, 2021. The order granted the petitioner’s motion for summary judgment on the petition and denied the cross-motion of Board of Assessors and Board of Assessment Review of the Town of Babylon for summary judgment dismissing the petition. ORDERED that the order is reversed, on the law, with costs, the petitioner’s motion for summary judgment on the petition is denied, and the cross-motion of Board of Assessors and Board of Assessment Review of the Town of Babylon for summary judgment dismissing the petition is granted. In 2017, the petitioner, Loyal Order of the Moose 1421, as an alleged benevolent organization, filed an application for a real property tax exemption pursuant to Real Property Tax Law §420-b for the 2017/2018 tax year with regard to certain real property located in Lindenhurst. The Assessor of the Town of Babylon denied the petitioner’s application on the ground that fraternal organizations are not entitled to the subject real property tax exemption. The petitioner then filed a complaint with the Board of Assessment Review of the Town of Babylon (hereinafter the Board of Assessment Review) regarding the real property tax assessment of the property for the 2017/2018 tax year, alleging that the assessment was unlawful because the property is owned by a benevolent organization and, thus, wholly exempt from taxation. The Board of Assessment Review denied the complaint. Thereafter, the petitioner commenced this proceeding pursuant to Real Property Tax Law article 7 against Board of Assessors and the Board of Assessment Review (hereinafter together the appellants) to review the real property tax assessment of the property for the 2017/2018 tax year. The petitioner alleged, inter alia, in effect, that the tax assessment was unlawful, as the property is entitled to a full exemption. Subsequently, the petitioner moved for summary judgment on the petition, and the appellants cross-moved for summary judgment dismissing the petition. In an order dated March 1, 2021, the Supreme Court granted the petitioner’s motion and denied the appellants’ cross-motion. This appeal ensued. As relevant here, Real Property Tax Law §420-b(1)(a) provides that “[r]eal property owned by a corporation or association which is organized exclusively for…benevolent…purposes,…and used exclusively for carrying out thereupon one or more of such purposes either by the owning corporation or association,…shall be exempt from taxation.” Thus, in order to establish its entitlement to the subject real property tax exemption, the petitioner was required to demonstrate that it was the owner of the property, that the petitioner was organized exclusively for benevolent purposes, and that the property was used exclusively for benevolent purposes (see Matter of Pelham Masonic Historical Socy. of City Is. v. Tax Commn. of City of N.Y., 266 AD2d 7, 8). In the context of real property tax exemption statutes, the word “exclusive” has been held to mean “principal” or “primary” (Matter of Adult Home at Erie Sta., Inc. v. Assessor & Bd. of Assessment Review of City of Middletown, 10 NY3d 205, 214 [internal quotation marks omitted]; see Matter of Symphony Space v. Tishelman, 60 NY2d 33, 38; Matter of Association of the Bar of City of N.Y. v. Lewisohn, 34 NY2d 143, 153). Here, contrary to the Supreme Court’s determination, the petitioner failed to establish, prima facie, that it was organized primarily for benevolent purposes and that the property was used primarily for benevolent purposes. On the other hand, the appellants demonstrated that the petitioner is a subordinate lodge of Moose International, Inc., which the United States Treasury Department has determined to be a fraternal organization; has been granted a group federal income tax exemption pursuant to Internal Revenue Code (26 USC) §501(c)(8), which is applicable to fraternal organizations; and, while having some benevolent and charitable purposes, also is “devoted” to fraternalism (10 Ops Counsel SBRPS No. 43). “Where fraternalism is more than just an incidental purpose or use, an exemption is not possible under section 420-a or 420-b” (id.). Accordingly, the Supreme Court should have denied the petitioner’s motion for summary judgment on the petition and granted the appellants’ cross-motion for summary judgment dismissing the petition (see Matter of Pelham Masonic Historical Socy. of City Is. v. Tax Commn. of City of N.Y., 266 AD2d at 8; see also 10 Ops Counsel SBRPS No. 43; cf. Matter of Syracuse Council of Am. Youth Hostels v. Srogi, 116 Misc 2d 394, 396-397 [Sup Ct, Onondaga County], affd 90 AD2d 674). BRATHWAITE NELSON, J.P., RIVERA, FORD and TAYLOR, JJ., concur. By Nelson, J.P.; Rivera, Ford, Taylor, JJ. JOHN GARDNER, res, v. SACCO & FILLAS, LLP, ET AL., app, ET AL., def — (Index No. 706776/14) Sacco & Fillas, LLP, Astoria, NY (James R. Baez of counsel), appellant pro se and for appellants Tonino Sacco, Elias N. Fillas, and Lamont Rodgers. Ronemus & Vilensky, LLP, New York, NY (Robert Vilensky and Nadia Y. Lescott of counsel), for respondent. In an action, inter alia, to recover damages for legal malpractice, the defendants Sacco & Fillas, LLP, Tonino Sacco, Elias N. Fillas, and Lamont Rodgers appeal from an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), entered September 1, 2020. The order, insofar as appealed from, denied the motion of the defendants Sacco & Fillas, LLP, Tonino Sacco, Elias N. Fillas, and Lamont Rodgers for summary judgment dismissing the complaint insofar as asserted against them. ORDERED that the order is affirmed insofar as appealed from, with costs. In September 2014, the plaintiff commenced this action against, among others, the defendants Sacco & Fillas, LLP, Tonino Sacco, Elias N. Fillas, and Lamont Rodgers (hereinafter collectively the Sacco defendants), inter alia, to recover damages for legal malpractice, alleging that he incurred damages as a result of the Sacco defendants’ failure to timely file a personal injury action on his behalf. The Sacco defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order entered September 1, 2020, the Supreme Court, among other things, denied the Sacco defendants’ motion. The Sacco defendants appeal. “To succeed on a motion for summary judgment dismissing a legal malpractice action, a defendant must present evidence in admissible form establishing that at least one of the essential elements of legal malpractice cannot be satisfied” (Schmidt v. Burner, 202 AD3d 1117, 1119; see Buczek v. Dell & Little, LLP, 127 AD3d 1121, 1123). “Those elements require a showing that (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” (Aqua-Trol Corp. v. Wilentz, Goldman & Spitzer, P.A., 197 AD3d 544, 545; see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). Here, the Supreme Court properly denied the Sacco defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. The Sacco defendants failed to submit evidence establishing, prima facie, the absence of at least one essential element of the legal malpractice cause of action (see Aqua-Trol Corp. v. Wilentz, Goldman & Spitzer, P.A., 197 AD3d at 545; Fricano v. Law Offs. of Tisha Adams, LLC, 194 AD3d 1016, 1018; Ferrigno v. Jaghab, Jaghab & Jaghab, P.C., 152 AD3d 650, 652; Atiencia v. Pinczewski, 148 AD3d 860, 861). Since the Sacco defendants failed to make their prima facie showing, we do not need to consider the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). BRATHWAITE NELSON, J.P., RIVERA, FORD and TAYLOR, JJ., concur. By Nelson, J.P.; Rivera, Ford, Taylor, JJ. MATTER OF PEPE PORSCHE OF LARCHMONT, res, v. PLANNING BOARD OF THE TOWN OF MAMARONECK, app — (Index No. 59092/19) William Maker, Jr., Mamaroneck, NY, for appellant. DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, NY (Eric J. Mandell of counsel), for respondent. In a proceeding pursuant to CPLR article 78, inter alia, to review so much of a determination of the Planning Board of the Town of Mamaroneck dated May 8, 2019, as imposed a condition identified as condition number 8 upon the granting of the petitioner’s application for the renewal of a special use permit, and a determination of the Planning Board of the Town of Mamaroneck dated June 4, 2019, that the petitioner failed to satisfy condition number 8, the Planning Board of the Town of Mamaroneck appeals from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), dated January 8, 2020. The judgment, insofar as appealed from, granted that branch of the petition which was to annul the determination dated June 4, 2019, that the petitioner failed to satisfy condition number 8. ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements. The petitioner operated an auto dealership on property located in the Town of Mamaroneck pursuant to a special use permit issued by the Planning Board of the Town of Mamaroneck (hereinafter the Planning Board). For more than 20 years, the special use permit was renewed every two years by the Planning Board. However, when the Planning Board granted the petitioner’s application for the renewal of the special use permit in a determination dated May 8, 2019, the Planning Board imposed, for the first time, a condition, identified as condition number 8, requiring the petitioner to provide the Town Engineer with documentation showing that it had the right to use an area that was a part of the adjacent property owned by a third party (hereinafter the subject parking area), within 90 days of the Planning Board’s determination, in order to prevent the annulment of the special use permit. The petitioner commenced this proceeding pursuant to CPLR article 78, inter alia, to review so much of the determination as imposed condition number 8. The petitioner also challenged the Planning Board’s subsequent determination that the petitioner failed to satisfy condition number 8 by providing documentation showing that it had permission to use the subject parking area from its landlord, who claimed ownership over the area via adverse possession. The Supreme Court, inter alia, granted that branch of the petition which was to annul the Planning Board’s determination that the petitioner failed to satisfy condition number 8. The Planning Board appeals. “A zoning board may, where appropriate, impose reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property, and aimed at minimizing the adverse impact to an area that might result from the grant of a variance or special permit” (Matter of St. Onge v. Donovan, 71 NY2d 507, 515-516 [internal quotation marks omitted]). “However, if a zoning board imposes conditions that are unreasonable or improper, those conditions may be annulled” (Matter of Rendely v. Town of Huntington, 44 AD3d 864, 865). Here, the condition requiring the petitioner to provide documentation showing that it had the right to use the subject parking area was unreasonable and improper as applied by the Planning Board, as there was no rational basis to require the petitioner to resolve the legal uncertainty surrounding the nonparty landlord’s ownership of the subject parking area in order to satisfy the condition (see Matter of Voetsch v. Craven, 48 AD3d 585, 586). Therefore, as the application of the condition was improper, it was arbitrary and capricious for the Planning Board to reject the landlord’s letter stating that the petitioner had the right to use the subject parking area (see Matter of Conroy v. Town of Woodbury Zoning Bd. of Appeals, 21 AD3d 957, 958; Matter of Baker v. Brownlie, 270 AD2d 484, 486). Accordingly, the Supreme Court properly granted that branch of the petition which was to annul the Planning Board’s determination that the petitioner failed to satisfy condition number 8. BRATHWAITE NELSON, J.P., RIVERA, FORD and TAYLOR, JJ., concur. By Dillon, J.P.; Iannacci, Genovesi, Wan, JJ. THE PEOPLE, ETC., res, v. HAMZA A. (ANONYMOUS), app — (Index No. 70195/22) Patricia Pazner, New York, NY (Leila Hull of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle S. Fenn of counsel; Gianna Gambino on the memorandum), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Bruna L. DiBiase, J.), imposed March 23, 2022, 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). DILLON, J.P., IANNACCI, GENOVESI and WAN, JJ., concur. By Barros, J.P.; Nelson, Maltese, Ford, Warhit, JJ. THE PEOPLE, ETC., res, v. PHILLIP ERDAIDE, app — (Index No. 1916/19) Patricia Pazner, New York, NY (Victoria L. Benton of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle M. O’Boyle of counsel; Christopher M. Ciccolini on the memorandum), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Toni M. Cimino, J.), imposed February 24, 2022, upon his plea of guilty, on the ground that the sentence was excessive. ORDERED that the sentence is affirmed. The defendant’s purported waiver of his right to appeal was invalid because the Supreme Court’s oral colloquy mischaracterized the appellate rights waived as encompassing the loss of attendant rights to counsel and poor person relief (see People v. Stewart, 200 AD3d 723; People v. Howard, 183 AD3d 640). Under the circumstances of this case, the defendant’s execution of a written waiver of the right to appeal form did not cure the deficient oral colloquy. Accordingly, the purported waiver does not preclude appellate review of the defendant’s excessive sentence claim. However, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). BARROS, J.P., BRATHWAITE NELSON, MALTESE, FORD and WARHIT, JJ., concur. By Connolly, J.P.; Chambers, Miller, Dowling, Taylor, JJ. THE PEOPLE, ETC., res, v. SEBASTIAN RESTREPO, app — (Index No. 1256/16) Patricia Pazner, New York, NY (Joshua M. Levine of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Ellen C. Abbot of counsel; Jordan Miller on the memorandum), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Peter F. Vallone, Jr., J.), imposed March 19, 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). CONNOLLY, J.P., CHAMBERS, MILLER, DOWLING and TAYLOR, JJ., concur. By Dillon, J.P.; Miller, Dowling, Wan, JJ. IN THE MATTER OF SASHA R. (ANONYMOUS), ALSO KNOWN AS SASHA M. (ANONYMOUS). ADMINISTRATION FOR CHILDREN’S SERVICES, pet-app; KEVIN A. M. (ANONYMOUS), res-res, ET AL., res; TWYLA CARTER, nonparty-app — (Index No. N-21575-19) Twyla Carter, New York, NY (Dawne A. Mitchell and Riti P. Singh of counsel), nonparty-appellant pro se. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Rebecca L. Visgaitis, MacKenzie Fillow, and Jeremy Pepper of counsel), for petitioner-appellant. Michael Mossa & Associates, LLC, Ozone Park, NY (Michael Mossa and William Shanahan of counsel), for respondent-respondent. In a proceeding pursuant to Family Court Act article 10, the attorney for the child appeals, and the petitioner separately appeals, from an order of the Family Court, Queens County (Margaret Morgan, J.), dated January 6, 2022. The order, upon granting the father’s motion, made at the close of the petitioner’s case at a fact-finding hearing, to dismiss the petition insofar as asserted against him for failure to establish a prima facie case, dismissed the petition insofar as asserted against him. ORDERED that the order is reversed, on the law, without costs or disbursements, the father’s motion to dismiss the petition insofar as asserted against him is denied, the petition is reinstated insofar as asserted against the father, and the matter is remitted to the Family Court, Queens County, for further proceedings consistent herewith. The Administration for Children’s Services (hereinafter ACS) commenced this proceeding pursuant to Family Court Act article 10, alleging, inter alia, that the father neglected the subject child. At a fact-finding hearing, after ACS rested its case, the father moved to dismiss the petition insofar as asserted against him for failure to establish a prima facie case. The Family Court granted the motion and dismissed the petition insofar as asserted against him. The attorney for the child appeals, and ACS separately appeals. On a motion to dismiss a petition for failure to establish a prima facie case, the petitioner’s evidence must be accepted as true, and the petitioner must be afforded the benefit of every reasonable inference which may be drawn therefrom (see Matter of Da-Mynye M. [Joseph K.], 202 AD3d 685, 686). Here, accepting the evidence presented by ACS as true, and affording ACS the benefit of every favorable inference which may be drawn therefrom, ACS established a prima facie case that the father neglected the subject child (see Matter of Jermaine T. [Jairam T.], 193 AD3d 943; Matter of Ashantae H. [Shelly H.], 146 AD3d 453; Matter of Andre K. [Jamahal G.], 142 AD3d 1171; Matter of Jeaniya W. [Jean W.], 96 AD3d 622; Matter of Jessica R., 230 AD2d 108). Accordingly, the Family Court should have denied the father’s motion to dismiss the petition insofar as asserted against him, and we remit the matter to the Family Court, Queens County, to complete the fact-finding hearing and to determine the petition insofar as asserted against the father on the merits. DILLON, J.P., MILLER, DOWLING and WAN, JJ., concur. By Duffy, J.P.; Iannacci, Chambers, Christopher, JJ. PEOPLE OF STATE OF NEW YORK, res, v. PHILLIP PAYNE, app. Patricia Pazner, New York, NY (Patty C. Walton of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Katherine A. Walecka of counsel), for respondent. Appeal by the defendant from an order of the Supreme Court, Kings County (Miriam Cyrulnik, J.), dated April 1, 2021, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C. ORDERED that the order is affirmed, without costs or disbursements. The defendant was convicted, upon his plea of guilty, of course of sexual conduct against a child in the first degree. At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court denied the defendant’s application for a downward departure from his presumptive risk level and designated him a level two sex offender. The defendant appeals. “A defendant seeking a downward departure from the presumptive risk level has the initial burden of 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 Guidelines; and establishing the facts in support of its existence by a preponderance of the evidence” (People v. Cousin, 209 AD3d 1047, 1048 [internal quotation marks omitted]; see People v. Wyatt, 89 AD3d 112, 128; 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” (People v. Cousin, 209 AD3d at 1048; see People v. Gillotti, 23 NY3d 841, 861). Here, the defendant failed to establish that a downward departure was warranted. Most of the circumstances cited by the defendant in support of his application for a downward departure were adequately taken into account by the Guidelines (see People v. Peoples, 189 AD3d 1282, 1283; People v. Rocano-Quintuna, 149 AD3d 1114, 1115). Moreover, although an exceptional response to treatment may qualify as a mitigating factor that warrants a downward departure, here, the defendant failed to prove by a preponderance of the evidence that his response to such treatment was exceptional (see People v. Cousin, 209 AD3d at 1048; People v. Del-Carmen, 186 AD3d 878, 879). The defendant’s remaining contention is without merit. Accordingly, the Supreme Court properly denied the defendant’s application for a downward departure and designated him a level two sex offender pursuant to Correction Law article 6-C. DUFFY, J.P., IANNACCI, CHAMBERS and CHRISTOPHER, JJ., concur. By Iannacci, J.P.; Genovesi, Dowling, Voutsinas, JJ. THE PEOPLE, ETC., res, v. REMY BATISTA, app — (Index No. 2019/17) Patricia Pazner, New York, NY (Chelsea Lopez of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Melanie T. West and Deborah E. Wassel of counsel), for respondent. Appeal by the defendant from an amended judgment of the Supreme Court, Queens County (Barry Kron, J.), rendered March 9, 2020, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated conditions thereof, after a hearing, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of stolen property in the fourth degree. ORDERED that the amended judgment is affirmed. The defendant’s purported waiver of his right to appeal was invalid. The standard written appeal waiver form misstated the applicable law and was misleading (see People v. Green, 205 AD3d 1051, 1052; People v. Gaindarpersaud, 188 AD3d 718, 719; People v. Habersham, 186 AD3d 854, 854). The Supreme Court’s terse colloquy was insufficient to cure the defects of the written waiver (see People v. Thomas, 34 NY3d 545, 564-566; People v. Habersham, 186 AD3d at 854). Thus, the purported waiver does not preclude appellate review of the defendant’s excessive sentence claim. Nevertheless, the resentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). The defendant’s remaining contention is unpreserved for appellate review (see People v. Dickerson, 61 AD3d 1220, 1221; People v. Robles, 5 AD3d 180, 180-181; People v. Wilson, 289 AD2d 1088; People v. Santana, 191 AD2d 655), and, in any event, without merit. IANNACCI, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur. By Iannacci, J.P.; Genovesi, Dowling, Voutsinas, JJ. THE PEOPLE, ETC., res, v. REMY BATISTA, app — (Index No. 2278/17) Patricia Pazner, New York, NY (Chelsea Lopez of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Melanie T. West and Deborah E. Wassel of counsel), for respondent. Appeal by the defendant from an amended judgment of the Supreme Court, Queens County (Barry Kron, J.), rendered March 9, 2020, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated conditions thereof, after a hearing, and imposing a sentence of imprisonment upon his previous conviction of grand larceny in the fourth degree. ORDERED that the amended judgment is affirmed. The defendant’s purported waiver of his right to appeal was invalid. The standard written appeal waiver form misstated the applicable law and was misleading (see People v. Green, 205 AD3d 1051, 1052; People v. Gaindarpersaud, 188 AD3d 718, 719; People v. Habersham, 186 AD3d 854, 854). The Supreme Court’s terse colloquy was insufficient to cure the defects of the written waiver (see People v. Thomas, 34 NY3d 545, 564-566; People v. Habersham, 186 AD3d at 854). Thus, the purported waiver does not preclude appellate review of the defendant’s excessive sentence claim. Nevertheless, the resentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). The defendant’s remaining contention is unpreserved for appellate review (see People v. Dickerson, 61 AD3d 1220, 1221; People v. Robles, 5 AD3d 180, 180-181; People v. Wilson, 289 AD2d 1088; People v. Santana, 191 AD2d 655), and, in any event, without merit. IANNACCI, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur. By Connolly, J.P.; Nelson, Maltese, Christopher, JJ. OLIVIA ANYANWU, res, v. CHRISTIAN ANYANWU, app — (Index No. 874/17) Law Office of Joshua R. Katz, P.C., Kew Gardens, NY, for appellant. Lewis S. Calderon, Jamaica, NY, for respondent. In an action for a divorce and ancillary relief, the defendant appeals from a judgment of divorce of the Supreme Court, Queens County (Anna Culley, J.), entered November 27, 2020. The judgment of divorce, insofar as appealed from, upon a decision of the same court dated June 30, 2020, made after a nonjury trial, awarded the plaintiff maintenance in the sum of $423.50 per month for a period of seven years and child support in the sum of $1,876.44 per month. ORDERED that the judgment of divorce is affirmed insofar as appealed from, with costs. The plaintiff and the defendant were married in December 1994 and have four children, three of whom were unemancipated at the time of trial. In January 2017, the plaintiff commenced this action for a divorce and ancillary relief. After a nonjury trial, the Supreme Court issued a decision in which it, inter alia, imputed income to the defendant in the amount of $92,942 per year. The court subsequently entered a judgment of divorce upon its decision after trial, awarding the plaintiff maintenance in the sum of $423.50 per month for a period of seven years and child support in the sum of $1,876.44 per month, calculated with the defendant’s imputed income, among other things. The defendant appeals from the judgment of divorce. In determining a party’s maintenance and child support obligations, a court “‘need not rely upon a party’s own account of his [or her] finances, but may impute income based upon the party’s past income or demonstrated future potential earnings’” (Tuchman v. Tuchman, 201 AD3d 986, 990, quoting Duffy v. Duffy, 84 AD3d 1151, 1151-1152). “Where a party’s account is not believable, the court may impute a true or potential income higher than alleged” (Sufia v. Khalique, 189 AD3d 1499, 1501 [internal quotation marks omitted]). “‘The factfinder’s determination concerning the imputation of income to an obligor spouse is almost always based on the resolution of credibility, and therefore, is given great deference on appeal’” (id. at 1501, quoting Matter of Funaro v. Kudrick, 128 AD3d 695, 696 [internal quotation marks omitted]). Here, the Supreme Court providently exercised its discretion by imputing $92,942 in annual income to the defendant when computing his maintenance and child support obligations (see Tuchman v. Tuchman, 201 AD3d at 990; Sufia v. Khalique, 189 AD3d at 1501). In particular, the defendant’s testimony as to his income in 2017, coupled with the undisputed evidence of his educational background and his vague denial of recollection as to whether the accusations underlying his termination from his previous full-time position had merit, provided a basis for the court, in the exercise of its discretion, to impute income to the defendant (see Sufia v. Khalique, 189 AD3d at 1501). Moreover, while the defendant is correct that the court should not have, sua sponte, taken judicial notice of information regarding the defendant’s income on a certain website (see OneWest Bank, FSB v. Berino, 158 AD3d 811, 813; HSBC Bank USA, N.A. v. Taher, 104 AD3d 815, 818), this error was harmless (see CPLR 2002; Fraser v. 147 Rockaway Pkw, LLC, 203 AD3d 894, 895; Matter of Billets v. Bush, 63 AD3d 1203, 1204; Matter of Christina A., 216 AD2d 928). The defendant’s own admission to earning more than $96,000 in 2017 provided an independent basis for the court to impute income to him in the amount of $92,942 per year (see Brown v. Brown, 239 AD2d 535). The defendant’s remaining contentions are either unpreserved for appellate review or without merit. CONNOLLY, J.P., BRATHWAITE NELSON, MALTESE and CHRISTOPHER, JJ., concur. By Duffy, J.P.; Ford, Dowling, Taylor, JJ. THE PEOPLE, ETC., app, v. ANGEL FUENTES, res — (Index No. 70248/21) Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio and Steven A. Bender of counsel), for appellant. Clare J. Degnan, White Plains, NY (Jennifer Spencer of counsel), for respondent. Appeal by the People from an order of the County Court, Westchester County (Robert J. Prisco, J.), dated May 20, 2022. The order granted the defendant’s motion pursuant to CPL 30.30(1)(a) to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial. ORDERED that the order is reversed, on the law, the defendant’s motion pursuant to CPL 30.30(1)(a) to dismiss the indictment is denied, the indictment is reinstated, and the matter is remitted to the County Court, Westchester County, for further proceedings consistent herewith. On September 18, 2020, the People filed a felony complaint against the defendant. Thereafter, on November 29, 2021, the defendant was arraigned on the indictment. He then moved pursuant to CPL 30.30(1)(a) to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial, contending that, for the period of September 18, 2020, to November 29, 2021, the total amount of time chargeable to the People exceeded the six-month period mandated by CPL 30.30. The People opposed the motion, contending, inter alia, that the 25-day period from December 30, 2020, to January 25, 2021, was excludable pursuant to Executive Order (A. Cuomo) No. 202.87 (9 NYCRR 8.202.87), and therefore the total amount of time chargeable to the People did not exceed the six-month period mandated by CPL 30.30. By order dated May 20, 2022, the County Court, upon charging 192 days to the People, granted the defendant’s motion. The People appeal. Where, as here, a defendant is charged with a felony, the People are required to be ready for trial within six months of the commencement of the criminal action (see CPL 30.30[1][a]; People v. Sinistaj, 67 NY2d 236; People v. Connell, 185 AD3d 1048, 1049). In response to the COVID-19 pandemic, on December 30, 2020, former Governor Andrew Cuomo issued Executive Order No. 202.87, which provided “Section 30.30 and Section 190.80 of the criminal procedure law are suspended to the extent necessary to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment or on a superior court information and thereafter shall not be tolled” (9 NYCRR 8.202.87 [emphasis added]). Successive executive orders extended Executive Order No. 202.87 through May 23, 2021 (see 9 NYCRR 8.202.87-202.106). Contrary to the determination of the County Court, while it was in effect, Executive Order No. 202.87 constituted a toll of the time within which the People must be ready for trial for the period from the date a felony complaint was filed through the date of a defendant’s arraignment on the indictment, with no requirement that the People establish necessity for a toll in each particular case (see People v. Taback, _____ AD3d _____, 2023 NY Slip Op 02334 [2d Dept]; People v. Aiken, 75 Misc 3d 1212[A], 2022 NY Slip Op 50475[U], *2-3 [Sup Ct, NY County]). Because Executive Order No. 202.87 served to toll the speedy trial statute, the 25 days from December 30, 2020, to January 25, 2021, were not chargeable to the People (see People v. Taback, _____ AD3d _____, ____, 2023 NY Slip Op 02334). Consequently, the total amount of time chargeable to the People did not exceed the six-month period mandated by CPL 30.30. Therefore, the County Court should have denied the defendant’s motion to dismiss the indictment (see CPL 30.30[1][a]). The defendant’s alternative arguments for affirmance are not reviewable on the People’s appeal (see CPL 470.15[1]; People v. Goodfriend, 64 NY2d 695; People v. Byrd, 96 AD3d 962, 964). DUFFY, J.P., FORD, DOWLING and TAYLOR, JJ., concur. By Duffy, J.P.; Ford, Dowling, Taylor, JJ. THE PEOPLE, ETC., res, v. DANIEL PETRANGELO, app — (Index No. 34/20) Yasmin Daley Duncan, Brooklyn, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, NY (Amie M. Johnson of counsel), for respondent. Appeal by the defendant from a judgment of the County Court, Dutchess County (Jessica Segal, J.), rendered July 15, 2021, convicting him of attempted kidnapping in the second degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which she moves for leave to withdraw as counsel for the appellant. ORDERED that the motion of Yasmin Daley Duncan for leave to withdraw as counsel for the appellant is granted, and she is directed to turn over all papers in her possession to the appellant’s new counsel assigned herein; and it is further, ORDERED that Carol Kahn, P.O. Box 1592, New York, New York 10028, is assigned as counsel to prosecute the appeal; and it is further, ORDERED that the respondent is directed to furnish a copy of the certified transcript of the proceedings to the appellant’s new assigned counsel; and it is further, ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of this decision and order on motion, and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court dated November 9, 2022, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers, including a certified transcript of the proceedings, and on the briefs of the parties. The parties are directed to upload, through the digital portal on this Court’s website, digital copies of their respective briefs, with proof of service of one hard copy on each other (see 22 NYCRR 670.9[a]). The brief submitted by the defendant’s counsel pursuant to Anders v. California (386 US 738) is deficient because it fails to adequately analyze potential appellate issues with references to facts that might arguably support the appeal (see People v. Santos, 210 AD3d 911, 912; People v. Wright, 209 AD3d 1046, 1047; People v. Grafton, 209 AD3d 871, 872; People v. Deprosperis, 126 AD3d 997, 998). Furthermore, rather than acting as an advocate and evaluating whether there were any nonfrivolous issues to raise on appeal, assigned counsel has acted as “a mere advisor to the court,” opining on the merits of the appeal (Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256; see Anders v. California, 386 US at 744-745; People v. Wright, 209 AD3d at 1047). Further, upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the defendant’s waiver of his right to appeal was valid (see People v. Bisono, 36 NY3d 1013; People v. Thomas, 34 NY3d 545), and whether the defendant’s sentence was excessive (see People v. Suitte, 90 AD2d 80). DUFFY, J.P., FORD, DOWLING and TAYLOR, JJ., concur. By Lasalle, P.J.; Connolly, Genovesi, Voutsinas, JJ. IN THE MATTER OF MARK L. STONE, app, v. JAMIE M. WEINBERG, res — (Index No. V-17473-17) Wisselman, Harounian & Associates, P.C., Carle Place, NY (Jacqueline Harounian and Jordan E. Trager of counsel), for appellant. Quatela