Appellate Division, Second Department: October 20, 2023

By Barros, J.P.; Miller, Genovesi, Wan, JJ. VAKHOBJON NIZOMOV, ET AL., app, v. MICHAEL D. JONES, ET AL., res — (Index No. 518809/18) Shulman & Hill, PLLC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Christopher J. Soverow], of counsel), for appellants. Ruprecht, Hart, Ricciardulli & Sherman, LLP, New York, NY (Jessica M. Anderson of counsel), for respondents. In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated November 23, 2020, and (2) an order of the same court dated May 6, 2021. The order dated November 23, 2020, granted the defendants’ motion pursuant to CPLR 3211(a)(2) to dismiss the complaint. The order dated May 6, 2021, insofar as appealed from, in effect, upon reargument, adhered to the determination in the order dated November 23, 2020, granting the defendants’ motion pursuant to CPLR 3211(a)(2) to dismiss the complaint, and denied that branch of the plaintiffs’ motion which was, in the alternative, for an order estopping the defendants from asserting the statute of limitations as a defense in any future action commenced by the plaintiffs in the state of New Jersey. ORDERED that the appeal from the order dated November 23, 2020, is dismissed, as that order was superseded by the order dated May 6, 2021, made upon reargument; and it is further, ORDERED that the order dated May 6, 2021, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the defendants. The plaintiffs allege that, on or about August 3, 2017, at Beach Street and Greenwich Street in New York County, the defendant Michael D. Jones, while acting within the scope of his employment with the defendant New Jersey Transit Corporation (hereinafter NJT), and while operating a motor vehicle owned by NJT, struck a vehicle operated by the plaintiff Vakhobjon Nizomov, resulting in personal injuries to Nizomov. Thereafter, Nizomov, and his spouse suing derivatively, commenced this action to recover damages for personal injuries resulting from the accident. The defendants moved pursuant to CPLR 3211(a)(2) to dismiss the complaint, asserting that, pursuant to the holding of the United States Supreme Court in Franchise Tax Bd. of Cal. v. Hyatt (_____ US _____, 139 S Ct 1485) (hereinafter Hyatt), an arm of a State, such as the defendants, may not be sued by a private party in the courts of a different state without the defendants’ consent. By order dated November 23, 2020, the Supreme Court granted the defendants’ motion. Thereafter, the plaintiffs moved, among other things, for leave to reargue their opposition to the defendants’ motion, or, in the alternative, for an order estopping the defendants from asserting the statute of limitations as a defense in any future action commenced by the plaintiffs in the state of New Jersey. By order dated May 6, 2021, the court, in effect, upon reargument, adhered to its prior determination granting the defendants’ motion pursuant to CPLR 3211(a)(2) to dismiss the complaint, and denied the plaintiffs’ request for alternate relief. The plaintiffs appeal. In Hyatt, the United States Supreme Court held that “States retain their sovereign immunity from private suits brought in the courts of other States” (Franchise Tax Bd. of Cal. v. Hyatt, ___ US at ___, 139 S Ct at 1492). Hyatt overruled Nevada v. Hall (440 US 410, 426), in which the Court held that “[n]othing in the Federal Constitution authorizes or obligates” a forum state to respect the sovereign immunity of a defendant sister State (id. at 425-427). However, a state can waive sovereign immunity only under limited circumstances, including by the enactment of legislation or by specific conduct during litigation (see Lapides v. Board of Regents of Univ. System of Ga., 535 US 613, 616; College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 US 666, 675-676). Contrary to the plaintiffs’ contention, the defendants did not consent to suit or waive their sovereign immunity in New York by virtue of their extensive operations within this State (see College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 US at 676-691). “A State’s consent to suit must be ‘unequivocally expressed’ in the text of the relevant statute” and therefore “may not be implied” (Sossamon v. Texas, 563 US 277, 284, quoting Pennhurst State School and Hospital v. Halderman, 465 US 89, 99; see also Dreger v. New York State Thruway Auth., 81 NY2d 721, 724). Although NJT is a public entity subject to the New Jersey Tort Claims Act (hereinafter the TCA) (see Maison v. New Jersey Tr. Corp., 245 NJ 270, 288-289, 245 A3d 536, 547; Muhammad v. New Jersey Tr., 176 NJ 185, 194, 821 A2d 1148, 1153), “New Jersey’s consent to suits in its state courts under [the TCA] is not an express consent to suit in courts of a sister state” (see Belfand v. Petosa, 196 AD3d 60, 69; Hyatt v. County of Passaic, 340 Fed Appx 833, 837 [3d Cir]; see also NJ Stat Ann §§59:9-1, 59:9-7). Furthermore, under the facts and circumstances of this case, the defendants’ conduct during this litigation did not amount to a waiver of sovereign immunity (see Colt v. New Jersey Tr. Corp., 206 AD3d 126, 129; cf. Taylor v. New Jersey Tr. Corp., 199 AD3d 540, 541; Fetahu v. New Jersey Tr. Corp., 197 AD3d 1065, 1065; Belfand v. Petosa, 196 AD3d at 72-73; Henry v. New Jersey Tr. Corp., 195 AD3d 444, 445). The plaintiffs failed to demonstrate that the defendants, as proxy for the state of New Jersey, adopted a policy of hostility to the public acts of New York in derogation of the Full Faith and Credit Clause of the United States Constitution (see Franchise Tax Bd. of Cal. v. Hyatt, 578 US 171, 176; Carroll v. Lanza, 349 US 408, 409-413). Conversely, the plaintiffs have not shown that, in deferring to the sovereignty of New Jersey and its courts in accordance with Hyatt, New York’s own legitimate public policy has been unconstitutionally infringed upon (see Franchise Tax Bd. of Cal. v. Hyatt, _____ US at _____, 139 S Ct at 1497; Broderick v. Rosner, 294 US 629, 642-643). “The Constitution does not merely allow States to afford each other immunity as a matter of comity; it embeds interstate sovereign immunity within the constitutional design” (Franchise Tax Bd. of Cal. v. Hyatt, _____ US at _____, 139 S Ct at 1497). The Supreme Court properly rejected the plaintiffs’ request, in the alternative, for an order estopping the defendants from asserting the statute of limitations as a defense in any future action commenced by the plaintiffs in the state of New Jersey (see generally Coleman v. Daines, 19 NY3d 1087, 1090; Church of St. Paul & St. Andrew v. Barwick, 67 NY2d 510, 520). Furthermore, the plaintiffs’ speculation that the defendants may have waived their sovereign immunity by contract did not provide a sufficient basis to deny the defendants’ motion to dismiss the complaint (see generally Peterson v. Spartan Indus., 33 NY2d 463, 465-467; Karpovich v. City of New York, 162 AD3d 996, 998; Rochester Linoleum & Carpet Ctr., Inc. v. Cassin, 61 AD3d 1201, 1202). The plaintiffs remaining contentions are either improperly raised for the first time on appeal or without merit. BARROS, J.P., MILLER, GENOVESI and WAN, JJ., concur. By Dillon, J.P.; Miller, Wooten, Taylor, JJ. IN THE MATTER OF BEST ENERGY POWER 2015, LLC, app, v. FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR SIGNATURE BANK, ET AL., res — (Index No. 605576/21) Lewis A. Bartell, Old Westbury, NY, for appellant. Meyner & Landis, LLP, New York, NY (Matthew P. Dolan of counsel), for respondent Federal Deposit Insurance Corporation, as receiver for Signature Bank. Todd & Levi, LLP, New York, NY (Jill Levi of counsel), for respondent Michaels Electrical Supply Corp. In a proceeding pursuant to CPLR 5239 to determine adverse claims to a bank account, the petitioner appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered August 18, 2021. The order, insofar as appealed from, denied the petitioner’s motion to vacate a restraining notice on the subject bank account, denied the petition, and, thereupon, vacated a temporary restraining order dated May 11, 2021, enjoining Signature Bank from releasing any funds in the subject bank account pending the determination of the petition. ORDERED that the order is affirmed insofar as appealed from, with one bill of costs. In an action entitled Michaels Electrical Supply Corp. v. Best Energy Power, LLC, commenced in the Supreme Court, Nassau County, under Index No. 608195/19, Michaels Electrical Supply Corp. (hereinafter Michaels) obtained a judgment in the sum of $27,884.52 against Best Energy Power, LLC (hereinafter Best Energy). To enforce the judgment, Michaels served a restraining notice on a bank account held by Best Energy Power 2015, LLC (hereinafter the petitioner), with Signature Bank. In May 2021, the petitioner commenced this proceeding pursuant to CPLR 5239 to determine adverse claims to the bank account, and moved to vacate the restraining notice. In an order entered August 18, 2021, the Supreme Court, inter alia, denied the petitioner’s motion to vacate the restraining notice and denied the petition. The petitioner appeals. A restraining notice serves as an injunction prohibiting the transfer of the judgment debtor’s property (see Aspen Indus. v. Marine Midland Bank, 52 NY2d 575, 579; Distressed Holdings, LLC v. Ehrler, 113 AD3d 111). A party seeking to enforce a judgment may seek to restrain or prohibit the transfer of a judgment debtor’s property in the hands of a third party pursuant to CPLR 5222(b) (see Verizon New England Inc. v. Transcom Enhanced Servs., Inc., 21 NY3d 66, 70). Contrary to the petitioner’s contention, its status as a distinct entity from Best Energy did not warrant vacating the restraining notice, as the record established that Best Energy was able to access the funds in the petitioner’s bank account. The parties’ remaining contentions are without merit. Accordingly, the Supreme Court properly denied the petitioner’s motion to vacate the restraining notice and denied the petition. DILLON, J.P., MILLER, WOOTEN and TAYLOR, JJ., concur. By Dillon, J.P.; Miller, Dowling, Wan, JJ. EMILIE ANN QUINONES, app, v. Z & B TRUCKING, INC., ET AL., res — (Index No. 704734/21) Bradford Cooke, Corona, NY, for appellant. Smith Mazure, P.C., New York, NY (Joel M. Simon of counsel), for respondents. In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Donna-Marie E. Golia, J.), entered September 17, 2021, and (2) an order of the same court (Allan B. Weiss, J.) entered February 18, 2022. The order entered September 17, 2021, granted the defendants’ motion pursuant to CPLR 3211(a)(4) to dismiss the complaint, and denied the plaintiff’s cross-motion, inter alia, for leave to enter a default judgment. The order entered February 18, 2022, denied the plaintiff’s motion for leave to reargue and renew her opposition to the defendants’ motion pursuant to CPLR 3211(a)(4) to dismiss the complaint or, in effect, to vacate so much of the order entered September 17, 2021, as granted the defendants’ motion. ORDERED that the order entered September 17, 2021, is modified, on the law, by deleting the provision thereof granting the defendants’ motion pursuant to CPLR 3211(a)(4) to dismiss the complaint, and substituting therefor a provision denying the motion; as so modified, the order entered September 17, 2021, is affirmed, without costs or disbursements; and it is further, ORDERED that the appeal from so much of the order entered February 18, 2022, as denied that branch of the plaintiff’s motion which was for leave to reargue is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further, ORDERED that the appeal from so much of the order entered February 18, 2022, as denied those branches of the plaintiff’s motion which were for leave to renew her opposition to the defendants’ motion pursuant to CPLR 3211(a)(4) to dismiss the complaint or, in effect, to vacate so much of the order entered September 17, 2021, as granted the defendants’ motion is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the order entered September 17, 2021. On or about October 25, 2019, the plaintiff commenced an action, inter alia, to recover damages for personal injuries she allegedly sustained in a motor vehicle accident that occurred on March 20, 2018 (hereinafter the prior action). The complaint in the prior action was never served on the defendants. On or about March 2, 2021, the plaintiff commenced this action, which is essentially identical to the prior action. The defendants moved pursuant to CPLR 3211(a)(4) to dismiss the complaint in this action on the ground that the prior action was identical and precluded this action. The plaintiff opposed the motion and cross-moved, inter alia, for leave to enter a default judgment, arguing, among other things, that the prior action was a “nullity” because she never served a complaint. By order entered September 17, 2021, the Supreme Court granted the defendants’ motion and denied the plaintiff’s cross-motion. The plaintiff appeals. CPLR 3211(a)(4) provides that “[a] party may move for judgment dismissing one or more causes of action asserted against [them] on the ground that…there is another action pending between the same parties for the same cause of action in a court of any state or the United States.” However, a complaint must have been served in that other action, otherwise it is not “another action,” or a “prior action pending” (Graev v. Graev, 219 AD2d 535, 535 [internal quotation marks omitted]) within the meaning of CPLR 3211(a)(4) (see Wharton v. Wharton, 244 AD2d 404, 404; Graev v. Graev, 219 AD2d at 535; Sotirakis v. United Servs. Auto. Assn., 100 AD2d 931, 931). Here, it is undisputed that the complaint in the prior action was not served. Accordingly, the Supreme Court should have denied the defendants’ motion pursuant to CPLR 3211(a)(4) to dismiss the complaint. The plaintiff’s remaining contentions either are without merit or need not be reached in light of our determination. DILLON, J.P., MILLER, DOWLING and WAN, JJ., concur. By Dillon, J.P.; Miller, Dowling, Wan, JJ. EMILIE ANN QUINONES, app, v. Z & B TRUCKING, INC., ET AL., res — (Index No. 718206/19) Bradford Cooke, Corona, NY, for appellant. Smith Mazure, P.C., New York, NY (Joel M. Simon of counsel), for respondents. In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (David Elliot, J.), entered September 14, 2021. The order granted the defendants’ motion pursuant to CPLR 306-b to dismiss the complaint. ORDERED that the order is affirmed, with costs. The plaintiff commenced this action, inter alia, to recover damages for personal injuries she allegedly sustained in a motor vehicle accident that occurred on March 20, 2018. It is undisputed that the summons and complaint was never served on the defendants, and the plaintiff never sought an extension of time to do so. If service of the summons and complaint is not made upon a defendant within 120 days of commencement of the action, “the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” (CPLR 306-b; see Nationstar Mtge., LLC v. Wilson, 176 AD3d 1087, 1088). Here, the plaintiff failed to establish that she exercised reasonably diligent efforts in attempting to effect proper service, and thus failed to show good cause (see Nationstar Mtge., LLC v. Wilson, 176 AD3d at 1089). Further, she failed to establish her entitlement to an extension of time for service in the interest of justice (see id.). Accordingly, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 306-b to dismiss the complaint. The plaintiff’s remaining contention is without merit. DILLON, J.P., MILLER, DOWLING and WAN, JJ., concur. By Duffy, J.P.; Iannacci, Wooten, Genovesi, JJ. IN THE MATTER OF TRAVELERS HOME AND MARINE INSURANCE COMPANY, ETC., pet-res, v. ALFANSO MILLER, app; ZURICH INSURANCE, ETC., ET AL., additional res-res, ET AL, additional res — (Index No. 511710/17) Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Paul H. Seidenstock and Brian J. Isaac], of counsel), for appellant. Fleischner Potash, LLP, New York, NY (Jason S. Steinberg of counsel), for additional respondents-respondents. In a proceeding pursuant to CPLR article 75, inter alia, to stay arbitration of a claim for supplemental underinsured motorist benefits, Alfanso Miller appeals from (1) an amended order of the Supreme Court, Kings County (Kathy J. King, J.), dated June 16, 2021, and (2) a judgment of the same court dated June 16, 2021. The judgment, upon a decision of the same court (Miriam P. Sunshine, Ct. Atty. Ref.) dated May 7, 2019, made after a framed-issue hearing, denied the petition to stay arbitration and dismissed the proceeding. ORDERED that the appeal from the amended 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 additional respondents Zurich Insurance, Rental Insurance Services, Inc., Enterprise Rent A Car, Inc., ELRAC, LLC, and EAN Holdings, LLC. The appeal from the amended 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). In addition, the appeal from that amended order must be dismissed as abandoned since the appellant did not raise any argument in his brief with respect to his appeal from that amended order. The petitioner Travelers Home and Marine Insurance Company (hereinafter Travelers) commenced this proceeding pursuant to CPLR 7503(b), among other things, to permanently stay an arbitration arising out of a motor vehicle accident in December 2014 between a vehicle driven by the respondent Alfanso Miller and insured by Travelers and a vehicle driven by the additional respondent Bernard Shirley, which was a rental vehicle owned by the additional respondent ELRAC, LLC, and registered to the additional respondent EAN Holdings, LLC (hereinafter together the rental companies). The petition alleged, among other things, that Miller filed a demand for arbitration of his claim for supplemental underinsured motorist benefits (hereinafter SUM insurance) under the insurance policy issued by Travelers and that a permanent stay of such arbitration was warranted on the ground, inter alia, that Miller had not yet exhausted the applicable liability coverage available to him, which was a condition precedent to triggering the SUM insurance endorsement of Travelers’ policy. According to the petition, Shirley was insured by supplemental liability protection insurance (hereinafter SLP insurance), which the rental companies made available to their customers through the additional respondent Zurich Insurance (hereinafter Zurich), and thus Miller was required to pursue a claim for the SLP insurance through Zurich before seeking the SUM insurance available through Travelers’ policy. Miller, in partial support of the petition, contended, inter alia, that the Supreme Court should grant the branch of the petition seeking to stay the arbitration on the ground that Shirley was covered by the SLP insurance on the date of the accident. Zurich opposed the petition, contending that the court should deny the petition and dismiss the proceeding on the ground that Shirley was not covered by the SLP insurance on the date of the accident. In July and September 2018, the Supreme Court held a framed-issue hearing to determine whether, on the date of the accident, Shirley was covered by the SLP insurance through Zurich. After the framed-issued hearing, the court determined that Shirley was not covered by the SLP insurance on the date of the accident, and, by judgment dated June 16, 2021, denied the petition and dismissed the proceeding. Miller appeals. “An insurance carrier seeking to stay the arbitration of an uninsured motorist claim has the burden of establishing that the offending vehicle was insured at the time of the accident” (Matter of American Home Assur. Co. v. Wai Ip Wong, 249 AD2d 301, 301; see Matter of Eagle Ins. Co. v. Pusey, 271 AD2d 445, 446). “Once such a prima facie case of coverage is established, the burden shifts to the opposing party to come forward with evidence to the contrary” (Matter of American Home Assur. Co. v. Wai Ip Wong, 249 AD2d at 301; see Matter of Fiduciary Ins. Co. of Am. v. Greenidge, 147 AD3d 1050, 1051). “Where, as here, a matter is determined after a hearing, this Court’s power to review the evidence is as broad as that of the hearing court, taking into account in a close case the fact that the hearing court had the advantage of seeing the witnesses” (Matter of State Farm Mut. Auto. Ins. Co. v. Rodriguez, 195 AD3d 727, 728). Here, the Supreme Court properly determined, after the framed-issued hearing, that, on the day of the accident, Shirley was not an “insured” pursuant to Zurich’s insurance policy with the rental companies (see Matter of Country-Wide Ins. Co. v. Adams, 187 AD3d 1013, 1013; Matter of Fiduciary Ins. Co. of Am. v. Greenidge, 147 AD3d at 1051). The evidence presented at the hearing demonstrated that, pursuant to Zurich’s policy, an “insured” is a renter who paid for the optional SLP insurance. Although evidence was presented that Shirley had purchased the optional SLP insurance for December 5, 2014, through December 8, 2014, Shirley had not paid for SLP insurance that covered December 10, 2014, the date of the accident. Accordingly, the court properly denied the petition and dismissed the proceeding. The parties’ remaining contentions need not be reached in light of our determination. DUFFY, J.P., IANNACCI, WOOTEN and GENOVESI, JJ., concur. By Barros, J.P.; Maltese, Warhit, Taylor, JJ. 5 STAR HOLDINGS NY, LLC, ET AL., app, v. KOHL’S DEPARTMENT STORES, INC., res, ET AL., def — (Index No. 617240/19) Jonathan A. Stein, P.C., Cedarhurst, NY, for appellants. Tannenbaum Helpern Syracuse & Hirschtritt LLP, New York, NY (Carl F. Regelmann of counsel), for respondent. George W. Wright & Associates, LLC, New York, NY (Narinder S. Parmar of counsel), for defendant Network Trucking Co., Inc.. In an action, inter alia, to recover damages for wrongful eviction pursuant to RPAPL 853, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Stephen A. Bucaria, J.), dated October 22, 2020. The order, insofar as appealed from, granted the motion of the defendant Kohl’s Department Stores, Inc., pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging wrongful eviction pursuant to RPAPL 853 insofar as asserted against it. ORDERED that the order is affirmed insofar as appealed from, with costs payable to the defendant Kohl’s Department Stores, Inc. The plaintiffs leased a 13,000-square-foot property from the defendant Kohl’s Department Stores, Inc. (hereinafter Kohl’s). Following the plaintiffs’ purported failure to pay rent, Kohl’s commenced a commercial landlord-tenant eviction proceeding in Nassau County District Court (see Kohl’s Dept. Stores, Inc. v. 5 Star Holdings NY, LLC, 64 Misc 3d 148[A], 2019 NY Slip Op 51402[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists]). A judgment of eviction was entered in June 2018 (see Kohl’s, 2019 NY Slip Op 51402[U], *2), and, in December 2018, the plaintiffs were evicted pursuant to the judgment. Subsequently, on August 22, 2019, the Appellate Term of the Supreme Court for the 9th and 10th Judicial Districts reversed the judgment of eviction and remitted the matter to the District Court for the entry of a final judgment dismissing the petition (see id. at *1-2). Thereafter, the plaintiffs commenced this action, inter alia, to recover damages for wrongful eviction pursuant to RPAPL 853 against Kohl’s and the defendant Network Trucking Co., Inc. The defendants separately moved pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging wrongful eviction pursuant to RPAPL 853 insofar as asserted against each of them. In an order dated October 22, 2020, the Supreme Court granted the defendants’ separate motions. The plaintiffs appeal from so much of the order as granted Kohl’s motion. On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), “the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (SV Vernon 43, LLC v. Malik, 138 AD3d 730, 731 [internal quotation marks omitted]; see Leon v. Martinez, 84 NY2d 83, 87-88). RPAPL 853 provides that “[i]f a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he [or her] has been put out, is held and kept out by force or by putting him [or her] in fear of personal violence or by unlawful means, he [or she] is entitled to recover treble damages in an action therefor against the wrong-doer.” Here, contrary to the plaintiffs’ contention, the Supreme Court correctly determined that the complaint failed to allege that they were evicted by unlawful means within the meaning of the statute (see id.; Lyke v. Anderson, 147 AD2d 18, 28; cf. Clinkscale v. Sampson, 48 AD3d 730, 731; Moran v. Orth, 36 AD3d 771, 772-773). Accordingly, the Supreme Court properly granted Kohl’s motion pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging wrongful eviction pursuant to RPAPL 853 insofar as asserted against it. BARROS, J.P., MALTESE, WARHIT and TAYLOR, JJ., concur. By Connolly, J.P.; Nelson, Maltese, Christopher, JJ. DMYTRO GURALENKO, app, v. NEW YORK CITY TRANSIT AUTHORITY, ET AL., res — (Index No. 508539/21) Levy Borukh Law, Rego Park, NY (David S. Levy of counsel), for appellant. Zaklukiewicz, Puzo & Morrisey LLP, Islip Terrace, NY (Lisa Taranto and William Morrisey of counsel), for respondents. In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated March 18, 2022. The order denied the plaintiff’s motion for summary judgment on the issue of liability and dismissing the defendants’ affirmative defense alleging comparative negligence, with leave to renew upon the completion of discovery. ORDERED that the order is reversed, on the law, with costs, and the plaintiff’s motion for summary judgment on the issue of liability and dismissing the defendants’ affirmative defense alleging comparative negligence is granted. On November 20, 2020, the plaintiff’s vehicle was struck in the rear by the defendants’ vehicle at the T-intersection of Hubbard Street and Shore Parkway. Both vehicles were traveling on Hubbard Street, which was a one-way street governed by a stop sign at its intersection with Shore Parkway and which came to an end at its intersection with Shore Parkway. Shore Parkway was also a one-way street. The drivers of both vehicles intended to make a right turn onto Shore Parkway. The plaintiff’s vehicle came to a stop for the stop sign, and the defendants’ vehicle came to a stop behind the plaintiff’s stopped vehicle without striking it. After a few seconds, the plaintiff’s vehicle began to inch forward and then came to a stop for a second time. When the plaintiff’s vehicle came to a stop for the second time, it was struck in the rear by the defendants’ vehicle. The plaintiff commenced this action to recover damages for personal injuries. The plaintiff moved for summary judgment on the issue of liability and dismissing the defendants’ affirmative defense alleging comparative negligence. The Supreme Court denied the motion, with leave to renew upon the completion of discovery. The plaintiff appeals. “A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” (Nsiah-Ababio v. Hunter, 78 AD3d 672, 672; see Vehicle and Traffic Law §1129[a]; Quintanilla v. Mark, 210 AD3d 713). As such, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Thompson v. New York City Tr. Auth., 208 AD3d 815, 817; Diamond v. Comins, 194 AD3d 784, 784-785). Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting a transcript of his testimony at a General Municipal Law §50-h hearing, which demonstrated that his vehicle was stopped for a traffic condition when it was struck in the rear by the defendants’ vehicle (see Thompson v. New York City Tr. Auth., 208 AD3d at 818; McRae v. City of New York, 208 AD3d 775, 776; Perez v. Persad, 183 AD3d 771, 772). The plaintiff also established his prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defense alleging comparative negligence by demonstrating that he was not at fault in the happening of the accident (see Thompson v. New York City Tr. Auth., 208 AD3d at 817; Diamond v. Comins, 194 AD3d at 785). In opposition to the plaintiff’s prima facie showings, the defendants failed to raise a triable issue of fact. The defendants’ contention that the plaintiff was negligent in coming to a sudden stop after the defendant driver began to make his turn because there were no vehicles traveling ahead of the plaintiff was insufficient to raise a triable issue of fact, given the plaintiff’s evidence that he brought his vehicle to a stop after inching forward because there was traffic coming from his left side (cf. Thompson v. New York City Tr. Auth., 208 AD3d at 818). Contrary to the defendants’ contention, the motion was not premature. The defendants’ proffered need to conduct depositions did not warrant denial of the motion, since the defendant driver already had personal knowledge of the relevant facts, and the defendants’ mere hope or speculation that evidence might be uncovered was insufficient to deny the motion (see Quintanilla v. Mark, 210 AD3d at 715; Cajas-Romero v. Ward, 106 AD3d 850, 852). Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability and dismissing the defendants’ affirmative defense alleging comparative negligence. CONNOLLY, J.P., BRATHWAITE NELSON, MALTESE and CHRISTOPHER, JJ., concur. By Iannacci, J.P.; Wooten, Warhit, Wan, JJ. MAHOPE FAMILY LIMITED PARTNERSHIP, app, v. DORON AVGUSH, ET AL., res — (Index No. 63930/20) Jasne & Florio, LLP, White Plains, NY (Hugh G. Jasne of counsel), for appellant. Kevin Kerveng Tung, P.C., Flushing, NY (Kevin K. Tung of counsel), for respondents. In an action, inter alia, for specific performance of a contract for the sale of real property and to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated October 15, 2021. The order granted the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint. ORDERED that the order is affirmed, with costs. The plaintiff and the defendants entered into a contract of sale, pursuant to which the defendants agreed to sell certain real property to the plaintiff. The contract contained a short sale contingency, providing that either of the parties could cancel the contract if the defendants’ lender did not approve a short sale. Thereafter, the defendants were informed by their lender that their request for a short sale had been denied. The defendants’ counsel sent a letter to the plaintiff’s counsel, advising, accordingly, that the defendants were electing to cancel the contract and returning the down payment. The plaintiff commenced this action, among other things, for specific performance of the contract of sale and to recover damages for breach of contract. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the amended complaint, asserting that they were entitled to cancel the contract pursuant to its terms. In opposition, the plaintiff asserted, inter alia, that the defendants had breached the covenant of good faith and fair dealing by failing to pursue short sale approval in good faith. The Supreme Court granted the motion. The plaintiff appeals. “[I]n New York, all contracts imply a covenant of good faith and fair dealing,” which “[b]roadly stated,…embraces a pledge that neither party [will] do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract” (Singh v. City of New York, 40 NY3d 138, 145-146 [internal quotation marks omitted]). “[T]he covenant requires the parties to perform under the contract in a reasonable way” (Cordero v. Transamerica Annuity Serv. Corp., 39 NY3d 399, 409 [internal quotation marks omitted]). Here, the plaintiff alleged that the defendants breached the covenant of good faith and fair dealing by failing to diligently, and in good faith, pursue their lender’s approval of a short sale. The defendants demonstrated, however, that these facts alleged by the plaintiff were not “fact[s] at all” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275). The defendants submitted the lender’s email setting forth a complete list of documents required for short sale review, the defendants’ submission to the lender with the attached documents, and the lender’s denial letter, which did not cite any failure on the part of the defendants to properly complete the application process, but rather, contained a substantive determination that the defendants did not qualify for the requested relief. This evidence utterly refuted the plaintiff’s factual allegations that the defendants had failed to properly pursue short sale approval, thereby demonstrating that the plaintiff had no causes of action based upon the defendants’ alleged breach of the implied covenant of good faith and fair dealing (see Pacific W., Inc. v. E & A Restoration, Inc., 178 AD3d 834, 835). The plaintiff’s remaining contentions are without merit. Accordingly, we affirm the order granting the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint. IANNACCI, J.P., WOOTEN, WARHIT and WAN, JJ., concur. By Dillon, J.P.; Nelson, Miller, Maltese, JJ. JASON VASQUEZ, app, v. VULLIS CORP., ET AL., res — (Index No. 712740/19) Held & Hines, LLP, Brooklyn, NY (Marc J. Held and Jack Angelou of counsel), for appellant. Baker, McEvoy & Moskovits (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondents. In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Allan B. Weiss, J.), entered July 22, 2021. The order denied the plaintiff’s motion for summary judgment on the issue of liability. ORDERED that the order is reversed, on the law, with costs, and the plaintiff’s motion for summary judgment on the issue of liability is granted. The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained when he was struck by a yellow cab operated by the defendant Adeyemi Okunola (hereinafter the defendant driver) and owned by the defendant Vullis Corp. The plaintiff, who was working at a toll plaza at the westbound Queens Midtown Tunnel, was standing next to the cab at a toll booth when he was struck as the cab drove forward. The defendant driver was ticketed for failure to exercise due care to avoid colliding with a pedestrian pursuant to Vehicle and Traffic Law §1146. After joinder of issue, but prior to the completion of discovery, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court denied the motion, and the plaintiff appeals. “Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” (Gallo v. Jairath, 122 AD3d 795, 796; see Kreis v. Kiyonaga, 200 AD3d 1144). Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability through submission of his affidavit and surveillance footage of the accident. This evidence demonstrated that the plaintiff, who was wearing a bright green safety vest, was standing at or near the sideview mirror of the cab while the cab was stopped at a tollbooth when the cab pulled forward and came into contact with the plaintiff’s foot or ankle (see Rodriguez v. City of New York, 31 NY3d 312, 324-325; Cioffi v. S.M. Foods, Inc., 178 AD3d 1006, 1009). In opposition, the defendants failed to raise a triable issue of fact. Although the Supreme Court made a determination that, based on the evidence presented, a jury could determine whether the plaintiff was “vigilant” under the circumstances, that is immaterial to the plaintiff’s entitlement to summary judgment on the issue of liability in this case. “To be entitled to summary judgment on the issue of a defendant’s liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence” (Jordon v. Chan, 214 AD3d 774, 775 [internal quotation marks omitted]; see Rodriguez v. City of New York, 31 NY3d at 315). Furthermore, the plaintiff’s motion was not premature, as the defendants failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence on the issue of the defendants’ liability, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff (see CPLR 3212[f]; Cromer-Walker v. Singh, 209 AD3d 832, 833). “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” (Leak v. Hybrid Cars, Ltd., 132 AD3d 958, 959 [internal quotation marks omitted]). Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability. DILLON, J.P., BRATHWAITE NELSON, MILLER and MALTESE, JJ., concur. By Dillon, J.P.; Nelson, Miller, Maltese, JJ. MICHAEL ANAGNOSTOPOULOS, res, v. HILLEL B. ROSENMAN, app (AND A THIRD-PARTY ACTION) — (Index No. 604163/19) Martyn, Martyn, Smith, Murray & Yong, Hauppauge, NY (Jessica Weber of counsel), for appellant. In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), dated December 10, 2021. The order denied the defendant’s 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. ORDERED that the order is affirmed, without costs or disbursements. The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident. The defendant 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 dated December 10, 2021, the Supreme Court denied the motion. The defendant appeals. The defendant failed to meet his 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 accident (see Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955, 956-957). The defendant’s submissions failed to eliminate triable issues of fact regarding the plaintiff’s claims, set forth in the bill of particulars, that he sustained a serious injury under the 90/180-day category of Insurance Law §5102(d) (see Despinos-Cadet v. Stein, 209 AD3d 978, 980; Hall v. Stargot, 187 AD3d 996, 996; Rodriguez v. McCullough, 184 AD3d 735, 735). Since the defendant failed to meet his prima facie burden, it is not necessary to determine whether the submissions by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Che Hong Kim v. Kossoff, 90 AD3d 969, 969). DILLON, J.P., BRATHWAITE NELSON, MILLER and MALTESE, JJ., concur. By Barros, J.P.; Christopher, Ford, Warhit, JJ. YOTTA VLASTAKIS, res, v. MANNIX FAMILY MARKET @ VETERAN’S ROAD, LLC, app — (Index No. 152651/17) Torino & Bernstein, P.C., Mineola, NY (Bruce A. Torino and Ellie S. Konstantatos of counsel), for appellant. D’Agostino and Associates, P.C., Staten Island, NY (Jonathan R. D’Agostino of counsel), for respondent. In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Orlando Marrazzo, Jr., J.), dated December 14, 2021. The order denied the defendant’s motion pursuant to CPLR 2104 to enforce a purported settlement agreement between the parties. ORDERED that the order is affirmed, with costs. The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell at premises owned by the defendant. In September 2021, the defendant moved pursuant to CPLR 2104 to enforce a purported settlement agreement between the parties, contending that the parties had reached a settlement that was memorialized in an email message dated October 7, 2020. By order dated December 14, 2021, the Supreme Court denied the defendant’s motion, determining that “there was no meeting of the minds or the creation of a settlement that is legally enforceable.” The defendant appeals. “CPLR 2104 governs the enforceability of settlement agreements” (Martin v. Harrington, 139 AD3d 1017, 1018; see Forcelli v. Gelco Corp., 109 AD3d 244, 248). Pursuant to that statute, “a settlement agreement is binding upon a party if it is in a writing subscribed either by the party or by his or her attorney” (Martin v. Harrington, 139 AD3d at 1018; see CPLR 2104). “To be enforceable, a settlement agreement must set forth all material terms, and there must be clear mutual accord between the parties” (Martin v. Harrington, 139 AD3d at 1018). “An email that merely confirms a purported settlement is not necessarily sufficient to bring the purported settlement into the scope of CPLR 2104″ (Teixeira v. Woodhaven Ctr. of Care, 173 AD3d 1108, 1109; see DeVita v. Macy’s E., Inc., 36 AD3d 751, 751). Here, contrary to the defendant’s contention, an email exchange between counsel did not evidence a clear mutual accord. The email dated October 7, 2020, purportedly confirming the settlement agreement, stated that it was memorializing the “tentative resolution” of the case and was sent by counsel for the defendant, which is the party seeking to enforce the agreement. There is no email subscribed by the plaintiff, who is the party to be charged, or by her attorney confirming the agreement (see Kataldo v. Atlantic Chevrolet Cadillac, 161 AD3d 1059, 1060). Accordingly, the Supreme Court properly denied the defendant’s motion pursuant to CPLR 2104 to enforce a purported settlement agreement between the parties. BARROS, J.P., CHRISTOPHER, FORD and WARHIT, JJ., concur. By Barros, J.P.; Christopher, Warhit, Taylor, JJ. NANCY PEZZOLLA, res, v. FAMILY FRUIT 2, INC., app — (Index No. 152367/21) Smith Mazure, P.C., New York, NY (Carol G. Morokoff of counsel), for appellant. Joseph A. Romagnolo, Staten Island, NY (John Z. Marangos of counsel), for respondent. In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Ralph J. Porzio, J.), dated August 23, 2022. The order, in effect, granted the plaintiff’s motion for summary judgment on the issue of liability and dismissing the defendant’s affirmative defense alleging culpable conduct on the part of the plaintiff. ORDERED that the order is reversed, on the law, with costs, and the plaintiff’s motion for summary judgment on the issue of liability and dismissing the defendant’s affirmative defense alleging culpable conduct on the part of the plaintiff is denied. In December 2021, the plaintiff commenced this action against the defendant to recover damages for personal injuries she allegedly sustained when she fell inside the defendant’s store on February 10, 2021. In June 2022, the plaintiff moved for summary judgment on the issue of liability and dismissing the defendant’s affirmative defense alleging culpable conduct on the part of the plaintiff. The Supreme Court, in effect, granted the motion. The defendant appeals. “A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries” (Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 AD3d 1033, 1033-1034; see Sapienza v. Harrison, 191 AD3d 1028, 1029). “A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability” (Xin Fang Xia v. Saft, 177 AD3d 823, 825; see Rodriguez v. City of New York, 31 NY3d 312, 323). Nevertheless, a plaintiff moving for summary judgment dismissing a defendant’s affirmative defense of comparative negligence may seek to establish freedom from comparative fault as a matter of law (see Diamond v. Comins, 194 AD3d 784, 785; Poon v. Nisanov, 162 AD3d 804, 808). Here, the plaintiff failed to establish, prima facie, that the defendant was negligent in maintaining its premises, that the defendant’s alleged negligence proximately caused the accident, and that the plaintiff did not contribute to the happening of the accident (see Marazita v. City of New York, 202 AD3d 951, 952; Ramirez v. Wangdu, 195 AD3d 646, 647; see generally Ingersoll v. Liberty Bank of Buffalo, 278 NY 1). In support of her motion, the plaintiff submitted a transcript of her deposition testimony, which raised triable issues of fact as to whether the floor where she fell was in a hazardous condition, whether she knew what had caused her to fall, and whether she simply misstepped. Since the plaintiff failed to meet her prima facie burden, the Supreme Court should have denied her motion for summary judgment on the issue of liability and dismissing the defendant’s affirmative defense alleging culpable conduct on the part of the plaintiff without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). We decline to search the record and award the defendant summary judgment dismissing the complaint. BARROS, J.P., CHRISTOPHER, WARHIT and TAYLOR, JJ., concur. By Dillon, J.P.; Iannacci, Miller, Taylor, JJ. KENNETH VARRICCHIO, res, v. BIG BROTHERS BIG SISTERS OF AMERICA, INC., ET AL., def, BIG BROTHERS/BIG SISTERS OF LONG ISLAND, INC., ET AL., app — (Index No. 900238/21) Mulholland Minion Davey McNiff & Beyrer, Williston Park, NY (Brian R. Davey of counsel), for appellants. Curis Law, PLLC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Kelly A. Breslauer], of counsel), for respondent. In an action to recover damages for personal injuries, the defendants Big Brothers/Big Sisters of Long Island, Inc., and Big Brothers-Big Sisters of Nassau County, Inc., appeal from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered July 12, 2022. The order, insofar as appealed from, denied those branches of those defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the first and second causes of action insofar as asserted against them. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff commenced this action seeking to recover damages for sexual abuse he allegedly suffered in approximately 1970, when he was a member of Big Brothers of Nassau County, Inc. The plaintiff alleged in the amended complaint that Big Brothers of Nassau County, Inc., dissolved after the alleged abuse occurred and was either subsumed by or merged with the defendant Big Brothers-Big Sisters of Nassau County, Inc., which later became known as the defendant Big Brothers/Big Sisters of Long Island, Inc. (hereinafter together the defendants). The amended complaint further alleged that the defendants were the successors in interest to Big Brothers of Nassau County, Inc., and therefore liable for its negligence. The plaintiff alleged in the first and second causes of action that the defendants were negligent in failing to protect him from sexual abuse, and were negligent in the hiring, retention, and supervision of their employees. The defendants moved, inter alia, pursuant to CPLR 3211(a)(1) to dismiss the first and second causes of action. In an order entered July 12, 2022, the Supreme Court, among other things, denied those branches of the motion. The defendants appeal. “A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Qureshi v. Vital Transp., Inc., 173 AD3d 1076, 1077; see Bedford-Carp Constr., Inc. v. Brooklyn Union Gas Co., 215 AD3d 907, 908). “To constitute documentary evidence, the evidence must be unambiguous, authentic, and undeniable, such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable” (Yan Ping Xu v. Van Zwienen, 212 AD3d 872, 874 [citations and internal quotation marks omitted]; see Phillips v. Taco Bell Corp., 152 AD3d 806, 806). “An affidavit is not documentary evidence because its contents can be controverted by other evidence, such as another affidavit” (Phillips v. Taco Bell Corp., 152 AD3d at 807; see Yan Ping Xu v. Van Zwienen, 212 AD3d at 874). Here, the affidavit submitted in support of the defendants’ motion was not documentary evidence within the meaning of CPLR 3211(a)(1) (see Davis v. Henry, 212 AD3d 597, 598; Phillips v. Taco Bell Corp., 152 AD3d at 807). In any event, the evidence submitted by the defendants did not conclusively dispose of the plaintiff’s first and second causes of action against the defendants (see Bibbo v. Arvanitakis, 145 AD3d 656, 657). Accordingly, the Supreme Court properly denied those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(1) to dismiss the first and second causes of action (see Transcan Sys., Inc. v. Seldat Distrib., Inc., 209 AD3d 911, 914; Bellevue Towers & Gardens, LLC v. Atlantis Natl. Servs., Inc., 208 AD3d 1300, 1302). The parties’ remaining contentions either are without merit or need not be considered in light of our determination. DILLON, J.P., IANNACCI, MILLER and TAYLOR, JJ., concur. By Duffy, J.P.; Nelson, Chambers, Warhit, JJ. CHRISTINA DE LA CRUZ, res, v. NJE ENTERPRISES, INC., app, ET AL., def — (Index No. 616658/18) Congdon, Flaherty, O’Callaghan, Travis & Fishlinger, Uniondale, NY (Kathleen D. Foley of counsel), for appellant. The Bongiorno Law Firm, PLLC (Edelstein & Grossman, New York, NY [Jonathan I. Edelman], of counsel), for respondent. In an action to recover damages for personal injuries, the defendant NJE Enterprises, Inc., appeals from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), dated December 14, 2020. The order, insofar as appealed from, denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant NJE Enterprises, Inc. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff was injured while working at a store owned by the defendant NJE Enterprises, Inc. (hereinafter NJE), when a metal shelf of a cold beverage display case collapsed onto her as she was resetting products in the case. The plaintiff commenced this action alleging that the defendants negligently modified the original design of the shelving system so as to render the shelf unstable by inserting bolts to increase the shelf’s pitch for the purpose of allowing products to glide more easily toward the front of the display case. Following discovery, the defendants moved for summary judgment dismissing the complaint. In support of their motion, the defendants submitted transcripts of the depositions of the plaintiff, the store’s business consultant, who was working with the plaintiff at the time of the accident, and the store manager. The defendants also submitted their expert engineer’s report. The plaintiff opposed the motion, submitting her expert engineer’s report. The Supreme Court, inter alia, denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against NJE. “To be entitled to summary judgment in a premises liability case, the defendant is required to show, prima facie, that it maintained its premises in a reasonably safe condition and that it did not have notice of or create a dangerous condition that posed a foreseeable risk of injury to persons expected to be on the premises” (Taub v. JMDH Real Estate of Garden City Warehouse, LLC, 150 AD3d 1301, 1302). “[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” (Trincere v. County of Suffolk, 90 NY2d 976, 977 [internal quotation marks omitted]; see Villalba v. Daughney, 214 AD3d 843, 843-844). Contrary to NJE’s contention, viewing the evidence in the light most favorable to the plaintiff as the nonmoving party (see Boulos v. Lerner-Harrington, 124 AD3d 709, 709), triable issues of fact exist as to whether the shelving unit involved in the accident had been modified with bolts and, if so, whether NJE created or contributed to a dangerous condition by installing bolts in the shelving unit (see Schumacher v. Pucciarelli, 161 AD3d 1205, 1205; Tavarez v. Pistilli Assoc. III, LLC, 161 AD3d 1129, 1131). Given the conflicting expert evidence, the Supreme Court properly denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against NJE (see Poliziani v. Culinary Inst. of Am., 167 AD3d 790, 791; Rashid v. Clinton Hill Apts. Owners Corp., 70 AD3d 1019, 1020-1021). DUFFY, J.P., BRATHWAITE NELSON, CHAMBERS and WARHIT, JJ., concur. By Dillon, J.P.; Iannacci, Miller, Taylor, JJ. LAKHRAM OMWATHATH, app, v. FRANK E. BASIL, INC., ET AL., res — (Index No. 3845/19) Lakhram Omwathath, Brooklyn, NY, appellant pro se. In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated August 19, 2021. The order granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the amended complaint. ORDERED that the order is affirmed, without costs or disbursements. In 1993, the plaintiff’s decedent was injured while working for the defendant Frank E. Basil, Inc. The decedent received workers’ compensation benefits throughout the rest of his life and, following the decedent’s death in 2018, the plaintiff received a workers’ compensation award. The plaintiff commenced this action after the decedent’s death seeking to recover damages for the decedent’s conscious pain and suffering and wrongful death. The defendants moved to dismiss the amended complaint pursuant to CPLR 3211(a), and the Supreme Court granted the motion. The plaintiff appeals. “‘A motion to dismiss [a cause of action] on the ground that the [cause of] action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, [thereby] conclusively establishing a defense as a matter of law’” (Bedford-Carp Constr., Inc. v. Brooklyn Union Gas Co., 215 AD3d 907, 908, quoting Qureshi v. Vital Transp., Inc., 173 AD3d 1076, 1077). Here, in support of their motion, the defendants conclusively demonstrated that the claims in the amended complaint, insofar as asserted against the defendant Frank E. Basil, Inc., are barred by the Workers’ Compensation Law (see Workers’ Compensation Law §11; LaLima v. Consolidated Edison Co. of N.Y., Inc., 151 AD3d 832, 834; Vargas v. Crown Container Co., Inc., 114 AD3d 762, 763). Additionally, there are no allegations in the amended complaint against the defendant Data Dimensions. Accordingly, the Supreme Court properly granted the defendants’ motion to dismiss the amended complaint. DILLON, J.P., IANNACCI, MILLER and TAYLOR, JJ., concur. By Dillon, J.P.; Iannacci, Miller, Taylor, JJ. MOHAMMAD CHOUDHARI, res, v. MUSTAFA CHOUDHARI, app — (Index No. 503545/17) Lanin Law, P.C., New York, NY (Scott L. Lanin of counsel), for appellant. Davis Ndanusa Ikhlas & Saleem, LLP, Brooklyn, NY (Mohammad A. Saleem of counsel), for respondent. In a consolidated action, inter alia, pursuant to RPAPL article 15 to quiet title to real property, the defendant appeals from (1) an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated October 21, 2020, and (2) an order and interlocutory judgment (one paper) of the same court dated December 10, 2020. The order denied the defendant’s motion for leave to amend his answer and granted the plaintiff’s cross-motion for summary judgment on his causes of action to declare certain deeds null and void. The order and interlocutory judgment granted the plaintiff’s cross-motion for summary judgment on his causes of action to declare certain deeds null and void, declared and adjudged the subject deeds null and void, and directed the County Clerk to remove them from its records. ORDERED that the order is modified, on the law, by deleting the provision thereof denying the defendant’s motion for leave to amend his answer, and substituting therefor a provision granting the motion; as so modified, the order is affirmed, without costs or disbursements; and it is further, ORDERED that the order and interlocutory judgment is affirmed, without costs or disbursements. In October 2016, the defendant executed a deed (hereinafter the October 2016 deed) purporting to convey title to property located at 1474 Broadway in Brooklyn from the plaintiff, his brother, to the plaintiff and the defendant jointly. In February 2017, the plaintiff commenced an action, inter alia, pursuant to RPAPL article 15 against the defendant to quiet title to that property, alleging that the defendant forged the plaintiff’s name on the October 2016 deed. In March 2017, the defendant executed a second deed (hereinafter the March 2017 deed) purporting to convey title to property located at 1472 Broadway in Brooklyn from the plaintiff to the plaintiff and the defendant jointly. In June 2017, the plaintiff commenced a second action, inter alia, to quiet title to that second property, alleging that the March 2017 deed was also forged. The defendant asserted counterclaims, alleging, inter alia, in effect, that the properties were purchased as part of a joint venture agreement between the brothers. The actions were subsequently consolidated. In June 2018, the defendant moved for leave to amend his answer to assert a counterclaim sounding in constructive trust based upon the alleged joint venture agreement. The plaintiff opposed the motion and cross-moved for summary judgment on his causes of action to declare the deeds null and void. In opposition to the plaintiff’s cross-motion, the defendant asserted that he validly executed the deeds as attorney-in-fact for the plaintiff pursuant to a power of attorney granted to the defendant by the plaintiff in 2006. In an order dated October 21, 2020, the Supreme Court denied the defendant’s motion for leave to amend his answer and granted the plaintiff’s cross-motion for summary judgment, determining that the subject deeds are null and void. In an order and interlocutory judgment dated December 10, 2020, the court granted the plaintiff’s cross-motion for summary judgment on his causes of action to declare certain deeds null and void, declared and adjudged the deeds null and void, and directed the County Clerk to remove them from its records. The defendant appeals. Contrary to the plaintiff’s contention, the record did not establish, as a matter of law, that the deeds were forgeries, given that the power of attorney granted to the defendant by the plaintiff authorized the defendant to execute real estate transactions on behalf of the plaintiff (see People v. Ippolito, 20 NY3d 615, 624; People v. Cunningham, 2 NY3d 593, 599; Ferrarella v. Godt, 131 AD3d 563, 566; People v. Cannarozzo, 62 AD2d 503, 504, affd 48 NY2d 687). However, the Supreme Court properly concluded that the plaintiff was entitled to summary judgment declaring and adjudging the deeds null and void. “[A] power of attorney…is clearly given with the intent that the attorney-in-fact will utilize that power for the benefit of the principal” (Matter of Ferrara, 7 NY3d 244, 254 [internal quotation marks omitted]). “Because [t]he relationship of an attorney-in-fact to his principal is that of agent and principal…, the attorney-in-fact must act in the utmost good faith and undivided loyalty toward the principal, and must act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing” (id. at 254 [internal quotation marks omitted]; see Semmler v. Naples, 166 AD2d 751, 752). “[A]bsent a specific provision in the power of attorney document authorizing gifts, an attorney-in-fact, in exercising his or her fiduciary responsibilities to the principal, may not make a gift to himself [or herself] or a third party of the money or property which is the subject of the agency relationship” (McGregor v. McGregor, 191 AD3d 974, 976 [internal quotation marks omitted]; see General Obligations Law §5-1505[2][a][2]; Scotti v. Barrett, 149 AD3d 998, 999; Matter of Curtis, 83 AD3d 1182, 1183). “Such a gift carries with it a presumption of impropriety and self-dealing, a presumption which can be overcome only with the clearest showing of intent on the part of the principal to make the gift” (Goldberg v. Meyers, 181 AD3d 653, 654 [internal quotation marks omitted]; see Borders v. Borders, 128 AD3d 1542, 1543; Matter of Audrey Carlson Revocable Trust, 59 AD3d 538, 540; Mantella v. Mantella, 268 AD2d 852, 853). Further, gifts of the principal’s assets must be in the best interest of the principal (see Matter of Ferrara, 7 NY3d at 254; Matter of Audrey Carlson Revocable Trust, 59 AD3d at 540). Here, the evidence in the record demonstrates, as a matter of law, that the defendant transferred a 50% interest in the properties to himself for nominal consideration, and that the power of attorney did not contain a provision authorizing him, as the attorney-in-fact, to make gifts of the principal’s property to himself (see Goldberg v. Meyers, 181 AD3d at 654). Accordingly, the transfers carried a presumption of impropriety and self dealing (see id.). Moreover, the evidence submitted by the defendant failed to rebut that presumption by raising a triable issue of fact as to whether the plaintiff intended the transfers to occur or whether the transfers were in the plaintiff’s best interest (see Scotti v. Barrett, 149 AD3d at 1000; Borders v. Borders, 128 AD3d at 1543; Wilder v. Tomaino, 52 AD3d 700). Accordingly, the Supreme Court properly declared the deeds null and void (see Borders v. Borders, 128 AD3d at 1543; Matter of Culbreth, 48 AD3d 564; Matter of Agrest, 279 AD2d 471, 472; Moglia v. Moglia, 144 AD2d 347, 348). “In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” (Wall St. Mtge. Bankers, Ltd. v. Berquin, 213 AD3d 972, 975; see CPLR 3025[b]; Lucido v. Mancuso, 49 AD3d 220, 222). “The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion” (Toiny, LLC v. Rahim, 214 AD3d 1023, 1024 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v. Spatafore, 183 AD3d 853, 853). Here, the proposed counterclaim sounding in constructive trust was not palpably insufficient or patently devoid of merit (see Toiny, LLC v. Rahim, 214 AD3d at 1024; First Natl. Bank of Long Is. v. Four Keys Realty, LLC, 213 AD3d 639, 641; Mawere v. Landau, 170 AD3d 826, 827). Moreover, “‘[n]o evidentiary showing of merit is required under CPLR 3025(b)’” (First Natl. Bank of Long Is. v. Four Keys Realty, LLC, 213 AD3d at 641, quoting Lucido v. Mancuso, 49 AD3d at 229). Accordingly, the Supreme Court should have granted the defendant’s motion for leave to amend his answer. The parties’ remaining contentions are without merit. DILLON, J.P., IANNACCI, MILLER and TAYLOR, JJ., concur. By Duffy, J.P.; Nelson, Chambers, Warhit, JJ. IN THE MATTER OF GIULIANA M. (ANONYMOUS). ANTHONY DECAROLIS, res; JOSEPH OPPEDISANO, ETC., app — (Index No. 132653/18) McCoyd, Parkas & Ronan, LLP, Garden City, NY (Maria L. Johnson of counsel), for appellant. Anthony DeCarolis, PLLC (Law Office of Steven Cohn, P.C., Carle Place, NY [Susan E. Dantzig], of counsel), for respondent. In a guardianship proceeding pursuant to Mental Hygiene Law article 81, in which Anthony DeCarolis, guardian of the property of Giuliana M., moved to judicially settle his final account and for related relief, Joseph Oppedisano, as executor of the estate of Giuliana M., appeals from (1) an order of the Supreme Court, Nassau County (Catherine Rizzo, J.), dated December 22, 2021, and (2) an order of the same court dated July 19, 2022. The order dated December 22, 2021, insofar as appealed from, without a hearing, denied the objections of Joseph Oppedisano as executor of the estate of Giuliana M. to the final account, in effect, granted those branches of the motion of Anthony DeCarolis which were to judicially settle his final account and for an award of fees and disbursements, and judicially settled the final account and awarded Anthony DeCarolis the sum of $32,159 for fees and disbursements. The order dated July 19, 2022, denied the motion of Joseph Oppedisano, as executor of the estate of Giuliana M., to vacate the order dated December 22, 2021, and his separate motion pursuant to CPLR 408 for disclosure. ORDERED that the appeal from so much of the order dated July 19, 2022, as denied the motion of Joseph Oppedisano, as executor of the estate of Giuliana M., to vacate the order dated December 22, 2021, is dismissed as academic in light of our determination on the appeal from the order dated December 22, 2021; and it is further, ORDERED that the order dated December 22, 2021, is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith; and it is further, ORDERED that the order dated July 19, 2022, is reversed insofar as reviewed, on the law, without costs or disbursements, and the motion of Joseph Oppedisano, as executor of the estate of Giuliana M., pursuant to CPLR 408 for disclosure is granted. In or around April 2018, Joseph Oppedisano commenced this guardianship proceeding pursuant to Mental Hygiene Law article 81 for the appointment of a guardian of the person and property of Giuliana M., an alleged incapacitated person (hereinafter the decedent). In his petition, Oppedisano alleged, inter alia, that certain members of the decedent’s family, including her niece, in whose favor the decedent had purportedly executed a power of attorney, had been misappropriating the decedent’s property for their own benefit. The Supreme Court appointed Anthony DeCarolis (hereinafter the guardian) as guardian of the decedent’s property. As relevant herein, the court authorized the guardian, in connection with the marshaling of the decedent’s assets, to conduct an investigation into the alleged misappropriation of the decedent’s property and, if necessary, to commence a turnover proceeding pursuant to Mental Hygiene Law §81.43. The decedent died on March 7, 2020. Oppedisano was named executor under the decedent’s last will and testament, and the Surrogate’s Court issued him letters testamentary. In July 2021, the guardian moved in this proceeding, among other things, to judicially settle his final account and for an award of fees and disbursements. Oppedisano, as executor of the decedent’s estate, filed objections to the final account, including the guardian’s request for an award of fees and disbursements, and also sought to have the guardian surcharged based on, inter alia, the guardian’s alleged failure to adequately investigate the alleged misappropriation of the decedent’s assets. In an order dated December 22, 2021, the Supreme Court, without a hearing, denied the objections, in effect, granted those branches of the guardian’s motion which were to judicially settle his final account and for an award of fees and disbursements, and judicially settled the final account and awarded the guardian the sum of $32,159 for fees and disbursements. Oppedisano appeals from the order dated December 22, 2021. By notice dated December 23, 2021, Oppedisano moved pursuant to CPLR 408 for disclosure with regard to his objections. By notice dated January 6, 2022, Oppedisano moved pursuant to CPLR 5015(a)(3) or in the interest of justice to vacate the order dated December 22, 2021. In an order dated July 19, 2022, the Supreme Court denied the motion to vacate the order dated December 22, 2021, and the separate motion pursuant to CPLR 408 for disclosure. Oppedisano appeals from the order dated July 19, 2022. An objectant to a guardian’s final account “has the initial burden of coming forward with evidence to establish that the amounts set forth are inaccurate or incomplete” (Matter of Shauntray T., 176 AD3d 719, 719; see Matter of Pedro G.T., 212 AD3d 822, 825). If the objections raise disputed issues of fact regarding the necessity of disbursements, reasonableness of fees, or management of assets, then a hearing should be held (see Matter of Pedro G.T., 212 AD3d at 825; Matter of George P., 83 AD3d 1079, 1079). Here, there are disputed issues of fact as to the accuracy and completeness of the guardian’s final account, and whether the guardian failed to adequately investigate the alleged misappropriation of the decedent’s assets and should be denied fees and/or surcharged for breaching his fiduciary duties. Under such circumstances, the Supreme Court erred in denying Oppedisano’s objections to the guardian’s final account without conducting a hearing (see Matter of Pedro G.T., 212 AD3d at 826; Matter of Harry Y., 62 AD3d 892, 894-895; Matter of Louis G., 39 AD3d 546, 547). Pursuant to CPLR 408, leave of court generally is required for disclosure in a special proceeding (see id.). Insofar as discovery tends to prolong a case, and therefore is inconsistent with the summary nature of a special proceeding, such disclosure is granted only where it is demonstrated that there is need for such relief (see Matter of Town of Pleasant Val. v. New York State Bd. of Real Prop. Servs, 253 AD2d 8, 15). When leave of court is granted, disclosure takes place in accordance with CPLR 3101(a), which generally provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action” (see Matter of Town of Pleasant Val. v. New York State Bd. of Real Prop. Servs, 253 AD2d at 15). The Court of Appeals has interpreted the phrase “material and necessary” liberally as requiring, upon request, disclosure “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406; see Matter of Town of Pleasant Val. v. New York State Bd. of Real Prop. Servs, 253 AD2d at 15-16). In general, the court has broad discretion in granting or denying disclosure (see Matter of Park Knoll Woners, Inc. v. Park Knoll Assoc., 175 AD3d 1410, 1411; Matter of Bramble v. New York City Dept. of Educ., 125 AD3d 856, 857). When deciding a motion for disclosure pursuant to CPLR 408, the court “must balance the needs of the party seeking discovery against such opposing interests as expediency and confidentiality” (Matter of Bramble v. New York City Dept. of Educ., 125 AD3d at 857; see Matter of Town of Pleasant Valley v. New York State Bd. of Real Prop. Servs, 253 AD2d at 16). Here, Oppedisano demonstrated that the requested disclosure was material and necessary to establishing his objections that the guardian’s final account was inaccurate and/or incomplete and that the guardian breached his fiduciary duties and should be denied fees and/or surcharged, and there was no contravening demonstration that the proposed discovery would be prejudicial or unduly burdensome, would violate confidentiality, or would unduly delay the case. Under such circumstances, the Supreme Court should have granted Oppedisano’s motion pursuant to CPLR 408 for disclosure (see Matter of Town of Pleasant Val. v. New York State Bd. of Real Prop. Servs, 253 AD2d at 16). DUFFY, J.P., BRATHWAITE NELSON, CHAMBERS and WARHIT, JJ., concur. By Barros, J.P.; Maltese, Dowling, Voutsinas, JJ. SARUJDAI R. PERSUAD, ETC., app, v. SYED HASSAN, ETC., ET AL., res — (Index No. 700688/17) Law Offices of Joseph M. Lichtenstein, P.C., Mineola, NY (Theodore McKinley Thornton of counsel), for appellant. Bartlett, LLP, Garden City, NY (Steven E. Snair of counsel), for respondents. In an action, inter alia, to recover damages for medical malpractice and wrongful death, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Peter J. O’Donoghue, J.), entered February 9, 2021. The judgment, upon an order of the same court dated January 29, 2021, granting the defendants’ motion for summary judgment dismissing the complaint, is in favor of the defendants and against the plaintiff dismissing the complaint. ORDERED that the judgment is reversed, on the law, with costs, the defendants’ motion for summary judgment dismissing the complaint is denied, the complaint is reinstated, and the order dated January 29, 2021, is modified accordingly. The plaintiff’s decedent (hereinafter the decedent) was a patient at the practice of the defendant Syed Hassan, an internist and primary care provider. On September 8, 2015, the decedent died. An autopsy revealed that the decedent had atherosclerotic cardiovascular disease with severe stenosis of the left anterior descending artery. The plaintiff, individually and as administrator of the decedent’s estate, commenced this action, inter alia, to recover damages for medical malpractice and wrongful death. The plaintiff alleged that the defendants were negligent in failing to diagnose and treat the decedent’s cardiac disease. The defendants moved for summary judgment dismissing the complaint. By order dated January 29, 2021, the Supreme Court granted the motion. The court found that the defendants established their prima facie entitlement to judgment as a matter of law with respect to both their alleged departure from the accepted standard of care and causation. The court further determined that, although the plaintiff raised a triable issue of fact with respect to the issue of whether the defendants departed from the accepted standard of care, he failed to raise a triable issue of fact with respect to the issue of causation. On February 9, 2021, the Supreme Court entered a judgment in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff appeals, and we reverse. “The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury” (Mendoza v. Maimonides Med. Ctr., 203 AD3d 715, 716 [internal quotation marks omitted]). “On a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby” (Dye v. Okon, 203 AD3d 702, 703 [internal quotation marks omitted]). Where a defendant makes a prima facie showing as to both elements, “the burden shifts to the plaintiff to rebut the defendant’s showing by raising a triable issue of fact as to both the departure element and the causation element” (Stukas v. Streiter, 83 AD3d 18, 25). “Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” (Sunshine v. Berger, 214 AD3d 1020, 1022 [internal quotation marks omitted]). Contrary to the plaintiff’s contention, the Supreme Court properly determined that the affirmation of the defendants’ expert established, prima facie, that the treatment provided by the defendants was not a proximate cause of the decedent’s alleged injuries (see Attia v. Klebanov, 192 AD3d 650, 651-652). However, contrary to the court’s determination, the affirmation of the plaintiff’s expert, wherein the expert opined to a reasonable degree of medical certainty that the defendants’ departures from accepted standards of medical care proximately caused the decedent to die prematurely on September 8, 2015, as a result of atherosclerotic cardiovascular disease, was sufficient to raise an issue of fact with respect to causation (see Tardio v. Saleh, 193 AD3d 901, 903). Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint. BARROS, J.P., MALTESE, DOWLING and VOUTSINAS, JJ., concur. By Barros, J.P.; Maltese, Dowling, Voutsinas, JJ. IN THE MATTER OF LIZZETTE BONILLA, app, v. BRENTWOOD UNION FREE SCHOOL DISTRICT, ET AL., res — (Index No. 616192/20) John Ray, Miller Place, NY, for appellant. Ingerman Smith, LLP, Hauppauge, NY (Neil M. Block of counsel), for respondents. In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Education of the Brentwood Union Free School District denying the petitioner tenure and terminating her employment, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Robert F. Quinlan, J.), dated October 1, 2021. The order and judgment, upon a decision of the same court dated August 19, 2021, granted the respondents’ motion to dismiss the petition and dismissed the proceeding. ORDERED that the order and judgment is affirmed, with costs. The petitioner was appointed as a permanent substitute teacher by the respondent Brentwood Union Free School District (hereinafter the District) for the 2015-2016 school year. In September 2016, the petitioner began a four-year probationary period of employment as a bilingual elementary teacher within the District. On July 2, 2020, based on the recommendation of the respondent Richard Loeschner, the District’s Superintendent (hereinafter the Superintendent), the District’s Board of Education terminated the petitioner’s employment, without a hearing, effective August 2, 2020. The petitioner commenced this CPLR article 78 proceeding against the District and the Superintendent (hereinafter together the respondents), seeking review of the Board of Education’s determination and reinstatement of her employment. The petitioner alleged that her substitute teaching experience during the 2015-2016 school year, combined with her probationary service for the 2016-2017 through 2019-2020 school years, satisfied the four-year probationary requirement, and therefore she acquired tenure by estoppel prior to the termination of her employment without a hearing in violation of Education Law §3020-a. Thereafter, the respondents moved to dismiss the petition for failure to state a cause of action alleging tenure by estoppel. In support, the respondents submitted, inter alia, the Superintendent’s affidavit, wherein he stated that during the 2015-2016 school year the petitioner, as a permanent substitute, was given several different assignments, and that the longest period of time that she substituted for the same teacher was 26 days. In an order and judgment dated October 1, 2021, upon a decision dated August 19, 2021, the Supreme Court granted the respondents’ motion and dismissed the proceeding. The petitioner appeals. “In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the standard is whether, giving the pleader the benefit of every possible favorable inference, the four corners of the pleading contain factual allegations which can fit any cognizable legal theory” (Matter of Clavin v. Mitchell, 131 AD3d 612, 614; see Leon v. Martinez, 84 NY2d 83, 87-88). “When evidentiary material outside the pleading’s four corners is considered, and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one and, unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Matter of Clavin v. Mitchell, 131 AD3d at 614; see Guggenheimer v. Ginzburg, 43 NY2d 268, 275). The Education Law distinguishes between probationary teachers and tenured teachers (see Matter of DeNigris v. Smithtown Cent. Sch. Dist., 217 AD3d 95, 97; Matter of Christian v. Bayport-Blue Point Union Free Sch. Dist., 129 AD3d 836, 837). Pursuant to Education Law §3012(1)(a), teachers in certain school districts must serve “a probationary period of four years.” The employment of a probationary teacher can be terminated at any time during the probationary period, without any reason and without a hearing, whereas the employment of a tenured teacher can be terminated only after formal disciplinary proceedings (see Matter of Christian v. Bayport-Blue Point Union Free Sch. Dist., 129 AD3d at 837; Matter of Berrios v. Board of Educ. of Yonkers City School Dist., 87 AD3d 329, 331-332). “Tenure by estoppel results ‘when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term’” (Matter of Brown v. Board of Educ. of Mahopac Cent. Sch. Dist., 129 AD3d 1067, 1070, quoting Matter of McManus v. Board of Educ. of Hempstead Union Free School Dist., 87 NY2d 183, 187; see Matter of Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d 110, 114). “Service as a substitute teacher does not constitute probationary service for purposes of obtaining tenure as a regular teacher” (Matter of Berrios v. Board of Educ. of Yonkers City School Dist., 87 AD3d at 332). However, a teacher’s probationary term may be reduced through “Jarema” credit for prior service as a “regular substitute” teacher (see Matter of Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d at 114; Matter of DeNigris v. Smithtown Cent. Sch. Dist., 217 AD3d at 97). “In order to qualify for Jarema credit, a teacher must serve as a regular substitute continuously for at least one school term immediately preceding the probationary period” (Matter of Berrios v. Board of Educ. of Yonkers City School Dist., 87 AD3d at 332; see Matter of Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d at 114). Here, the petition alleged that the petitioner was employed as a permanent substitute during the 2015-2016 school year, and the evidentiary submissions conclusively established that the petitioner taught, as a substitute teacher, several different classes over the 2015-2016 school year and that the longest period that she substituted for the same teacher was 26 days. Under these circumstances, the petition does not support a cause of action alleging tenure by estoppel because, contrary to the petitioner’s contention, her service as a substitute teacher did not constitute probationary service (see Matter of Berrios v. Board of Educ. of Yonkers City School Dist., 87 AD3d at 332). Moreover, the evidentiary submissions establish that the petitioner did not serve as a “regular substitute” during the 2015-2016 school year and, therefore, she is not entitled to Jarema credit (see Matter of Barbaccia v. Board of Educ. of Locust Val. Cent. School Dist., 282 AD2d 674, 674-675; cf. Matter of Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d at 119; Matter of Sisson v. Johnson City Cent. Sch. Dist., 206 AD3d 1116, 1119). Accordingly, the Supreme Court properly granted the respondents’ motion to dismiss the petition and dismissed the proceeding. BARROS, J.P., MALTESE, DOWLING and VOUTSINAS, JJ., concur. By Barros, J.P.; Maltese, Dowling, Voutsinas, JJ. JOHN MARZAN, app, v. FRITZ PETIT-FRERE, res — (Index No. 525500/20) Musa-Obregon Law, P.C., Maspeth, NY (Karl J. Ashanti of counsel), for appellant. Law Offices of John Trop, Tarrytown, NY (Jason A. Ciluffo of counsel), for respondent. In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated February 4, 2022. The order granted the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint and denied the plaintiff’s cross-motion, inter alia, pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant. ORDERED that the order is affirmed, with costs. On or about December 26, 2017, the defendant’s vehicle allegedly struck the plaintiff while he was walking near the intersection of Ralph Avenue and Clarendon Road in Brooklyn. In December 2020, the plaintiff commenced this action against the defendant to recover damages for personal injuries. The plaintiff served the summons and complaint upon the defendant more than eight months later, on September 8, 2021. On September 16, 2021, the defendant moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. On November 18, 2021, the plaintiff cross-moved, among other things, pursuant to CPLR 306-b to extend the time to serve the summons and complaint on the defendant. By order dated February 4, 2022, the Supreme Court granted the defendant’s motion and denied the plaintiff’s cross-motion. The plaintiff appeals, and we affirm. Pursuant to CPLR 306-b, a court may, in the exercise of its discretion, grant a motion for an extension of time within which to effect service of the summons and complaint for good cause shown or in the interest of justice (see Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 104-105; Wells Fargo Bank, N.A. v. Gewirtz, 204 AD3d 1070, 1072). “Good cause will not exist where a plaintiff…fails to make at least a reasonably diligent effort at service” (Bumpus v. New York City Tr. Auth., 66 AD3d 26, 32 [citations omitted]). Under the interest of justice standard, “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 [the] defendant” (Leader v. Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Turner v. Sideris, 209 AD3d 915, 916). Here, the plaintiff failed to establish that he exercised reasonably diligent efforts in attempting to effectuate proper service upon the defendant and, thus, he failed to show good cause (see Turner v. Sideris, 209 AD3d at 916; Calloway v. Wells, 79 AD3d 786). Further, contrary to his contentions, the plaintiff failed to establish entitlement to an extension of time to effect service of the summons and complaint on the defendant in the interest of justice (see Turner v. Sideris, 209 AD3d at 916; Valentin v. Zaltsman, 39 AD3d 852). Accordingly, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint and denied the plaintiff’s cross-motion, inter alia, pursuant to CPLR 306-b to extent the time to serve the summons and complaint upon the defendant. BARROS, J.P., MALTESE, DOWLING and VOUTSINAS, JJ., concur. By Dillon, J.P.; Christopher, Wooten, Taylor, JJ. LESLIE HERMAN, res, v. RICHARD HERMAN, app — (Index No. 203157/14) Law Offices of Kenneth J. Weinstein, P.C., Garden City, NY, for appellant. Mejias, Milgrim, Alvarado & Lindo P.C., Glen Cove, NY (Katherine Lindo and David Mejias of counsel), for respondent. In a matrimonial action in which the parties were divorced by judgment entered June 29, 2015, the defendant appeals from an order of the Supreme Court, Nassau County (Edmund M. Dane, J.), entered July 14, 2021. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for an award of child support add-on expenses in the sum of $31,128 and for an award of counsel fees, and denied the defendant’s cross-motion to terminate his child support obligation as to the parties’ older child, to direct the plaintiff to provide proof of child support add-on expenses henceforth, and to hold the plaintiff in contempt for failing to comply with the parties’ stipulation of settlement. ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff’s motion which were for an award of child support add-on expenses in the sum of $31,128 and for an award of counsel fees, and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. The parties were divorced by a judgment that incorporated but did not merge a stipulation of settlement. The plaintiff moved, inter alia, for an award of child support add-on expenses in the sum of $31,128 and for an award of counsel fees. The defendant cross-moved, among other things, to hold the plaintiff in contempt for failing to comply with the stipulation of settlement. In an order entered July 14, 2021, the Supreme Court, inter alia, granted the aforementioned branches of the plaintiff’s motion and denied the defendant’s cross-motion. The defendant appeals. The Supreme Court erred in granting that branch of the plaintiff’s motion which was for an award of child support add-on expenses in the sum of $31,128. “A stipulation of settlement that is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation” (Kraus v. Kraus, 131 AD3d 94, 100). “Where the stipulation is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence” (Oakes v. Oakes, 38 AD3d 865, 865). Here, the stipulation of settlement was unambiguous. It required the defendant to pay a certain percentage of child support add-on expenses incurred. It did not, however, obligate him to pay a set amount of add-on expenses irrespective of whether, in actuality, those expenses were incurred. The word “expenses,” which the defendant was obligated to pay as add-ons, is commonly understood as meaning costs that are actually incurred. In light of our determination regarding child support add-on expenses, the plaintiff is not entitled to an award of counsel fees pursuant to the stipulation of settlement. The defendant’s remaining contentions are without merit. DILLON, J.P., CHRISTOPHER, WOOTEN and TAYLOR, JJ., concur. By Connolly, J.P.; Genovesi, Ford, Wan, JJ. NELLYA RYABAYA, app, v. CITY OF NEW YORK, res — (Index No. 510209/16) William Pager, Brooklyn, NY, for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Daniel Matza-Brown, Geoffrey M. Stannard, and Jeremy Pepper of counsel), for respondent. In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Rosemarie Montalbano, J.), dated August 19, 2020. The order granted the defendant’s motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with costs. The plaintiff commenced this action against the defendant, City of New York, to recover damages for personal injuries she allegedly sustained in March 2016 when she tripped and fell on a broken and cracked curb located at 1375 Rockaway Parkway in Brooklyn. The plaintiff alleged that the City had received prior written notice of the defective condition through a Big Apple map from 2004, which indicated that the curb where the plaintiff fell was broken or misaligned, and a work permit from 2015 to “RESET, REPAIR OR REPLACE CURB” at nearby 1365 Rockaway Parkway. The City moved for summary judgment dismissing the complaint on the basis of lack of prior written notice, proffering a Google Maps image dated August 2013 that showed that the crack in the curb on which the plaintiff fell was not present as of August 2013. In an order dated August 19, 2020, the Supreme Court granted the City’s motion. The plaintiff appeals. “A municipality that has enacted a prior written notification law may avoid liability for a defect or hazardous condition that falls within the scope of the law if it can establish that it has not been notified in writing of the existence of the defect or hazard at a specific location” (Torres v. Incorporated Vil. of Rockville Ctr., 195 AD3d 974, 975; see Broome v. City of New York, 210 AD3d 857; Smith v. City of New York, 210 AD3d 53). Here, the City met its burden of establishing that it did not receive prior written notice of the defective condition that was the alleged cause of the plaintiff’s injuries (see Broome v. City of New York, 210 AD3d at 858; Administrative Code of the City of New York §7-201[c]). Contrary to the plaintiff’s contention, the Supreme Court properly took judicial notice of the Google Maps image from August 2013, which showed that any defects indicated on the Big Apple map from 2004 had been remedied by August 2013 (see CPLR 4532-b). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the City had prior written notice of the defect which allegedly caused her injuries (see Smith v. City of New York, 210 AD3d at 63). While the plaintiff argued that there was evidence that the work permit to replace the curb at an address near where the plaintiff suffered her injuries was issued subsequent to the August 2013 Google Maps image, issuance of a work permit does not constitute prior written notice (see Lopez v. Gonzalez, 44 AD3d 1012; Gee v. City of New York, 304 AD2d 615, 617), and, in any event, the work permit was not issued for a defect at the site of the plaintiff’s injuries. Accordingly, the Supreme Court properly granted the City’s motion for summary judgment dismissing the complaint. CONNOLLY, J.P., GENOVESI, FORD and WAN, JJ., concur. By Iannacci, J.P.; Chambers, Maltese, Taylor, JJ. IN THE MATTER OF MASTER BUILT HOMES II CORP., ET AL., app-res, v. NEW YORK CITY DEPARTMENT OF BUILDINGS, ET AL., res-app — (Index No. 85081/19) Gaines & Fishler, LLP, Staten Island, NY (Robert M. Fishler of counsel), for appellants-respondents. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Ingrid R. Gustafson and Tahirih M. Sadrieh of counsel), for respondents-appellants. In a hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief, the petitioners/plaintiffs appeal, and the respondents/defendants cross-appeal, from an order and interlocutory judgment (one paper) of the Supreme Court, Richmond County (Ralph J. Porzio, J.), dated August 30, 2019. The order and interlocutory judgment, insofar as appealed from, denied that branch of the petition/complaint which was for relief pursuant to CPLR article 78 with respect to real property owned by the petitioner/plaintiff NJJU Development, LLC, at 102 Maple Parkway and, in effect, dismissed that portion of the proceeding. The order and interlocutory judgment, insofar as cross-appealed from, directed a trial pursuant to CPLR 7804(h) on those branches of the petition/complaint which were for relief pursuant to CPLR article 78 with respect to real properties owned by the petitioners/plaintiffs Channelside 608-T2 Realty, LLC, 7335 Amboy Road, LLC, Foxbeach Construction Corp., and Cee Jay Real Estate Development Corp. ORDERED that the cross-appeal is dismissed, without costs or disbursements, as no appeal lies as of right from a nonfinal order in a proceeding pursuant to CPLR article 78 (see id. §5701[b][1]), and leave to appeal has not been granted; and it is further, ORDERED that the order and interlocutory judgment is affirmed insofar as appealed from, without costs or disbursements. The petitioners/plaintiffs (hereinafter the petitioners) commenced this hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief against the respondents/defendants (hereinafter the respondents), New York City Department of Buildings (hereinafter the Department of Buildings) and New York City Department of Parks and Recreation (hereinafter the Department of Parks). According to the petition/complaint (hereinafter the petition), each petitioner is the owner or contract vendee of certain real property located in Staten Island, and the petitioners are seeking “to make improvements on their respective properties, including tree removals.” The petitioners alleged that they submitted applications to the Department of Buildings for permits and certificates of occupancy for said improvements, but the Department of Buildings would not issue permits or approve certificates of occupancy until the Department of Parks approved the tree removals. The petitioners further alleged that the Department of Parks will not approve the tree removals until the petitioners either pay restitution or plant trees to make up for the tree removals. The petitioners further alleged that the subject trees are located on streets to which the City of New York does not have title. The petitioners sought a judgment declaring that the Department of Parks does not have jurisdiction over trees in streets the City does not own, to compel the Department of Buildings to produce building permits and certificates of occupancy and to approve the petitioners’ applications without the approval of the Department of Parks, and to compel the Department of Parks to return any monies that the petitioners wrongfully paid as restitution, which they alleged constitutes an unlawful taking in violation of the United States and New York State Constitutions. The respondents interposed an answer in which they argued for denial of the petition on the merits and dismissal of the petition on various procedural grounds. In their answer, the respondents contended, among other things, that pursuant to section 36(2) of the General City Law and title 18 of the Administrative Code of the City of New York, the Department of Parks generally has jurisdiction over trees in streets used as public ways, including streets the City does not own, unless the tree falls within an exception set forth in Administrative Code §18-105. The Department of Parks described the policy it has implemented to determine whether it has jurisdiction over a tree in a street: If a permit applicant submits evidence, such as a deed, showing that the applicant owns the land upon which the tree sits, or evidence that the applicant or the applicant’s predecessor in interest planted the tree or maintains the tree, then the Department of Parks will not exercise jurisdiction over the tree and will not charge restitution for its removal. Furthermore, the Department of Parks stated that it will not exercise jurisdiction over a tree in a street unless the street has been used as a public way for at least 10 years, and the Department of Parks relies primarily upon Corporation Counsel opinions for making this determination. In an order and interlocutory judgment dated August 30, 2019, the Supreme Court, inter alia, denied that branch of the petition which was for relief pursuant to CPLR article 78 with respect to property owned by the petitioner NJJU Development, LLC (hereinafter NJJU), at 102 Maple Parkway and, in effect, dismissed that portion of the proceeding. In reaching this determination, the court rejected the petitioners’ contentions that the Department of Parks may never assert jurisdiction over trees in streets that the City does not own, and that the Department of Parks’ demand for restitution for removal of such trees constitutes a taking. The court further determined that the Department of Parks’ policy with respect to its exercise of jurisdiction over trees was “rational, reasonable and grounded in the law, if applied properly.” The court concluded that there were no issues of fact necessitating a trial with respect to that branch of the petition relating to the property owned by NJJU at 102 Maple Parkway. However, the court directed a trial pursuant to CPLR 7804(h) on those branches of the petition which were for relief pursuant to CPLR article 78 with respect to properties owned by the petitioners Channelside 608-T2 Realty, LLC (hereinafter Channelside), 7335 Amboy Road, LLC (hereinafter 7335 Amboy), Foxbeach Construction Corp. (hereinafter Foxbeach), and Cee Jay Real Estate Development Corp. (hereinafter Cee Jay), finding that the record revealed triable issues of fact with respect to those four petitioners as to whether, among other things, the Department of Parks’ determinations were affected by an error of law based on certain language contained in the letters issued by the Department of Parks to each of those four petitioners. The court dismissed that branch of the petition which was for relief pursuant to CPLR article 78 with respect to property owned by NJJU at 104 Maple Parkway and the remaining branches of the petition which were for relief pursuant to CPLR article 78 based upon procedural defenses asserted by the respondents, including that certain petitioners’ claims were not ripe for judicial review, one claim was time-barred, and certain other claims were rendered academic due to the Department of Parks’ recent determinations in favor of those petitioners. The petitioners appeal, and the respondents cross-appeal. On appeal, the petitioners contend that the Supreme Court erred in its determinations as to the merits of the petitioners’ contentions, including in its rejection of the petitioners’ contentions that the Department of Parks cannot charge restitution for trees in streets that the City does not own and that to do so constitutes a taking. Insofar as that branch of the petition relating to the property owned by NJJU at 102 Maple Parkway is the only branch of the petition that the order and interlocutory judgment denied on the merits, we construe the petitioners’ appeal to be from so much of the order and interlocutory judgment as denied that branch of the petition and, in effect, dismissed that portion of the proceeding. The respondents cross-appeal from so much of the order and interlocutory judgment as directed a trial pursuant to CPLR 7804(h) on those branches of the petition which were for relief pursuant to CPLR article 78 with respect to properties owned by Channelside, 7335 Amboy, Foxbeach, and Cee Jay. That portion of the order and interlocutory judgment is not appealable as a matter of right, as no appeal lies as of right from a nonfinal order in a proceeding pursuant to CPLR article 78 (see id. §5701[b][1]; Matter of Boyd v. Cumbo, 210 AD3d 762, 762; Matter of Wood v. Port Wash. Police Dist., 161 AD3d 758, 758; Matter of Scarcella v. Village of Scarsdale Bd. of Trustees, 72 AD3d 831). Leave to appeal has not been granted, and under the circumstances of this case, we decline to grant leave to appeal sua sponte from that portion of the order and interlocutory judgment (see CPLR 5701[c]; Matter of Young Israel of Merrick v. Board of Appeals of Town of Hempstead, 304 AD2d 834). General City Law §36(2) provides, inter alia, that “[n]o public municipal street utility or improvement shall be constructed by any city having a population of one million or more in any street or highway until it has become a public street or highway and is duly placed on the official map or plan, with the exception that a city may construct improvements and provide services to any public way (mapped or unmapped) if the public way has been open and in use to the public for a minimum of ten years.” “The existence of the public way must be attested to by documents satisfactory to the municipality, such as reports of city agencies providing municipal services” (id.). Section 18-104 of the Administrative Code provides that the “planting, care and cultivation of all trees and other forms of vegetation in streets shall be under the exclusive jurisdiction of the commissioner [of the Department of Parks], except as otherwise provided in section 18-105.” Section 18-105 provides, inter alia, that “[a]ll trees in streets, which on investigation are found to be without ownership, shall be under the exclusive care and cultivation of the commissioner…. Trees found to be in the care of individual owners, corporations, societies, or associations, shall not be subject to the jurisdiction of the commissioner, unless the owners thereof make written application to the commissioner to have such trees transferred to his or her care.” Section 18-107(a) provides that “[a]ny person that intends to remove any tree that is within the jurisdiction of the commissioner, shall obtain a permit from the [D]epartment [of Parks] prior to such removal,” and section 18-107(b) provides that “[t]he [D]epartment [of Parks] shall charge a fee for each permit issued pursuant to this section, which shall be sufficient to cover the cost of replacing any tree proposed to be removed.” The term “street” is defined as “[a]ny public street, avenue, road, alley, lane, highway, boulevard, concourse, parkway, driveway, culvert, sidewalk, crosswalk, boardwalk, viaduct, square or place, except marginal streets” (id. §1-112[13]). The Supreme Court properly denied, on the merits, that branch of the petition relating to the property owned by NJJU at 102 Maple Parkway. The petitioners’ central contention, namely, that the Department of Parks has no authority to demand restitution for the removal of a tree in a street unless the City is the title owner of the street, is unsupported by any legal authority and contradicted by the plain language of title 18 of the Administrative Code. Pursuant to section 18-107(a) of the Administrative Code, the Department of Parks’ authority to demand that a permittee pay for tree replacements rests not upon the Department of Parks’ ownership of the tree, but rather its “jurisdiction” over the tree. Sections 18-104 and 18-105 clearly reflect that the Department of Parks’ jurisdiction over a tree is not conditioned upon whether the City owns the street upon which the tree is located. Section 18-105 expressly provides that the Department of Parks has jurisdiction over trees in streets that have been found to be “without ownership.” Moreover, as the respondents contend, the remaining language of section 18-105, read in conjunction with section 18-104, reflects that the Department of Parks’ jurisdiction over trees in streets is not limited to streets found to be without ownership, but also extends to “all trees…in streets” (id. §18-104) with the exception of “[t]rees found to be in the care of individual owners, corporations, societies, or associations” (id. §18-105). Although the Department of Parks’ policy permits a determination that a tree is “in the care of” an individual property owner within the meaning of section 18-105 through evidence that the property owner either holds title to the street upon which the tree is located, planted the tree, or has maintained the tree, the petitioners did not argue in the Supreme Court that any of these conditions were met. Instead, the petitioners challenged the Department of Parks’ interpretations of the applicable statute and regulations, and contended, inter alia, that the Department of Parks’ interpretations were erroneous, arbitrary and capricious, and unconstitutional. The court properly rejected these contentions, and properly concluded that the Department of Parks’ interpretation of the statutes and regulations it administers is reasonable and rational and does not run contrary to the clear wording of a statutory provision (see Goodwin v. Perales, 88 NY2d 383; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231; Matter of Eastern Pork Prods. Co. v. New York State Div. of Hous. & Community Renewal, 187 AD2d 320). The Supreme Court also properly rejected the petitioners’ contention that the Department of Parks’ demand for restitution violates the Takings Clauses of the United States Constitution and the New York State Constitution. There is a “heavy burden placed upon one alleging a regulatory taking” (Keystone Bituminous Coal Assn. v. DeBenedictis, 480 US 470, 493). “If the contested regulation falls short of eliminating all economically viable uses of the encumbered property, the Court looks to several factors to determine whether a taking occurred, including ‘the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action’” (Matter of Smith v. Town of Mendon, 4 NY3d 1, 9, quoting Palazzolo v. Rhode Island, 533 US 606, 617; see Penn Central Transp. Co. v. New York City, 438 US 104, 124). “A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good” (Penn Central Transp. Co. v. New York City, 438 US at 124 [citation omitted]). With regard to the economic impact of the regulation, the claimant must show “by ‘dollars and cents’ evidence that under no use permitted by the regulation under attack would the properties be capable of producing a reasonable return; the economic value, or all but a bare residue of the economic value, of the parcels must have been destroyed by the regulations at issue” (de St. Aubin v. Flacke, 68 NY2d 66, 77; see Matter of New Cr. Bluebelt, Phase 4, 122 AD3d 859, 862). Here, the court properly rejected the petitioners’ contention that the Department of Parks’ demands for restitution constituted a taking, as the petitioners offered nothing more than broad, conclusory allegations in support of their claims (see Linzenberg v. Town of Ramapo, 1 AD3d 321, 323). The petitioners’ remaining contentions are either without merit or improperly raised for the first time on appeal. IANNACCI, J.P., CHAMBERS and TAYLOR, JJ., concur. MALTESE, J., concurs, and votes to dismiss the cross-appeal and affirm the order and interlocutory judgment insofar as appealed from, with the following memorandum: I concur with the majority’s determination to affirm the order and interlocutory judgment insofar as appealed from and to dismiss the cross-appeal. I write separately to comment on a few points raised by the parties in their briefs on appeal and cross-appeal. First, it is undisputed that a tree that is on New York City property is within the jurisdiction of the Commissioner of the New York City Department of Parks and Recreation (hereinafter the Department of Parks) (see Administrative Code of City of NY §18-104). The petitioners/plaintiffs (hereinafter the petitioners) argue that, as a blanket rule, the Department of Parks cannot exercise jurisdiction over trees in streets or on private property that the City does not own, which the petitioners describe as “Non-title vested” streets. Section 18-105 of the Administrative Code provides that “[a]ll trees in streets, which on investigation are found to be without ownership, shall be under the exclusive care and cultivation of the commissioner,” and that trees that are “found to be in the care of individual owners, corporations, societies, or associations,” shall not be subject to the jurisdiction of the Commissioner, unless the owner requests that the care of the trees be transferred to the Commissioner. Thus, the issue is whether trees in non-title vested streets are “in the care of individual owners, corporations, societies, or associations.” The respondents/defendants (hereinafter the respondents) have indicated that, in determining whether to exercise jurisdiction over a tree in a street that the City does not own, the Department of Parks relies upon Corporation Counsel opinions. The opinions of Corporation Counsel are purely advisory (see Comptroller of the City of N.Y. v. Department of Fin. of the City of N.Y., 46 Misc 3d 403, 411 [Sup Ct, NY County]; Matter of Slevin v. Siegel, 65 Misc 2d 3, 5 [Sup Ct, Nassau County]). Courts are not bound to rely upon them. A party that disputes the Department of Parks’ exercise of jurisdiction over a tree may present evidence to refute that jurisdiction, notwithstanding the opinion of Corporation Counsel. We construe this appeal as being limited to the branch of the petition/complaint (hereinafter the petition) relating to property owned by the petitioner NJJU Development, LLC (hereinafter NJJU), at 102 Maple Parkway, the only branch of the petition that the Supreme Court denied on the merits, and find, among other things, that the court properly rejected the petitioners’ contention that the Department of Parks’ demand for restitution from NJJU violates the Takings Clauses of the United States Constitution and the New York State Constitution. Although the petitioners did not meet their heavy burden with respect to NJJU’s property at 102 Maple Parkway, it is possible that the petitioners may proffer evidence of an unconstitutional taking with respect to other petitioners. The respondents describe the many benefits of trees, which “clean the air, cool the streets, reduce storm water runoff, beautify neighborhoods, and enhance property values.” The Department of Parks’ goal to protect trees is a noble one. However, in furthering this goal, we must take care to avoid infringing upon individuals’ constitutional right to property. Furthermore, the regulation affects the cost of construction and indirectly may affect housing costs on a more widespread basis. Courts must carefully consider whether the regulation destroys the economic value of the property at issue, if a party provides evidence of such destruction. The parties raise complex and important issues regarding the authority of the Department of Parks to exercise jurisdiction over trees and to impose large amounts of restitution for their removal. Here, the issues are limited to whether NJJU established its entitlement to relief with respect to property at 102 Maple Parkway, which it did not. However, as a general matter, these issues warrant careful consideration. It is possible that other petitioners in this proceeding/action, or parties in a future proceeding, may make the requisite showing that the Department of Parks either may not exercise jurisdiction over certain trees that are owned by the petitioners, which are within the metes and bounds deed description of their property, or that are in the petitioners’ care, or that the exercise of jurisdiction is an unconstitutional taking. By Barros, J.P.; Chambers, Warhit, Taylor, JJ. IN THE MATTER OF PHIL BONADONNA, app, v. BOARD OF ZONING APPEALS OF THE INCORPORATED VILLAGE OF UPPER BROOKVILLE, ET AL., res — (Index No. 605623/20) Sahn Ward Braff Koblenz PLLC, Uniondale, NY (Andrew M. Roth and Elisabetta T. Coschignano of counsel), for appellant. Humes & Wagner, LLP, Locust Valley, NY (Peter P. MacKinnon of counsel), for respondent Board of Zoning Appeals of the Incorporated Village of Upper Brookville. In a proceeding pursuant to CPLR article 78, inter alia, to review so much of a determination of the Board of Zoning Appeals of the Village of Upper Brookville dated April 14, 2020, as, after a hearing, denied so much of the petitioner’s application as was for fence- and pier-height area variances, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Thomas Rademaker, J.), entered November 5, 2021. The judgment, insofar as appealed from, denied that branch of the petition which was to annul so much of the determination as denied so much of the petitioner’s application as was for fence- and pier-height area variances, and dismissed that portion of the proceeding. ORDERED that the judgment is affirmed insofar as appealed from, with costs. The petitioner is the owner of residential property located in the Village of Upper Brookville. The Village’s Building Zone Ordinance (hereinafter the ordinance) sets a maximum height for fences, piers, and entry piers on certain properties, including the petitioner’s property. The petitioner was issued a building permit allowing him, inter alia, to erect piers and perimeter fencing that conformed with the requirements of the ordinance. After construction was completed, the petitioner sought final approval from the Village’s Building Department. The petitioner received a denial letter, informing him, among other things, that the fences, piers, and entry piers exceeded the height restrictions imposed by the ordinance. In May 2018, the petitioner filed an application for area variances with the Board of Zoning Appeals of the Village (hereinafter the Board). The petitioner sought, inter alia, variances for the maximum height for the fences, nine piers, and four entry piers. After a public hearing, in a determination dated April 14, 2020, the Board, among other things, denied the requested height variances. The petitioner then commenced this proceeding pursuant to CPLR article 78, inter alia, to annul so much of the Board’s determination as denied the requested height variances. The Supreme Court denied that branch of the petition and dismissed that portion of the proceeding. The petitioner appeals. “Local zoning boards have broad discretion in considering variance applications, and judicial review is limited to determining whether the action taken by the board was affected by an error of law, arbitrary and capricious, or an abuse of discretion” (Matter of White Birch Circle Realty Corp. v. DeChance, 212 AD3d 729, 730; see CPLR 7803[3]). “Where, as here, a zoning board’s determination is made after a public hearing, its determination should be upheld if it has a rational basis and is supported by evidence in the record” (Matter of Ogden Land Dev., LLC v. Zoning Bd. of Appeals of Vil. of Scarsdale, 121 AD3d 695, 696). Pursuant to Village Law §7-712-b(3)(b), when determining whether to grant an area variance, a zoning board of appeals is required to engage in a balancing test, weighing the benefit of the grant to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted (see Matter of Schwartz v. LaRocca, 167 AD3d 906, 907). In making this determination, the board must consider the following factors: “(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 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” (Village Law §7-712-b[3][b]; see Matter of Kaye v. Zoning Bd. of Appeals of the Vil. of N. Haven, 185 AD3d 820, 821). “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 Humphreys v. Somers Zoning Bd. of Appeals, 206 AD3d 1000, 1002 [internal quotation marks omitted]; see Matter of Muller v. Zoning Bd. of Appeals Town of Lewisboro, 192 AD3d 805, 807-808). Here, contrary to the petitioner’s contention, the record reflects that the Board engaged in the requisite balancing of interests and considered the appropriate factors pursuant to Village Law §7-712-b(3)(b) in determining the petitioner’s application, and the Board’s determination had a rational basis and was supported by the record (see Matter of Massian v. Board of Zoning Appeals of the Town of Brookhaven, 210 AD3d 984, 986; Matter of Nataro v. DeChance, 149 AD3d 1081, 1082; Matter of Townsend v. Zoning Bd. of Appeals of City of Rye, 78 AD3d 851, 852). Although the petitioner introduced evidence that the variances he sought were consistent with conditions existing on neighboring properties, the petitioner introduced no evidence as to whether those comparators existed prior to the enactment of the ordinance, and the Board was permitted to consider that granting the requested variances could set a negative precedent and thereby undermine the existing ordinance (see Matter of Foster v. DeChance, 210 AD3d 1085, 1087; Matter of Dutt v. Bowers, 207 AD3d 540, 542; Matter of Nataro v. DeChance, 149 AD3d at 1082). The Board also rationally concluded that the variances were substantial in nature (see generally Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 614; Matter of White Birch Circle Realty Corp. v. DeChance, 212 AD3d at 731). The evidence further showed the availability of feasible alternatives to the requested variances and supported the Board’s determination that the petitioner’s hardship was entirely self-created, as the fence and piers could have been constructed in compliance with the ordinance’s height requirements. Moreover, to the extent that the Board placed particular weight upon the self-created hardship factor in making its determination, it was rational for the Board to do so under the circumstances of this case (see Matter of Neeman v. Town of Warwick, 184 AD3d 570, 572; Matter of Becvar v. Scheyer, 250 AD2d 842, 843). Accordingly, so much of the Board’s determination as denied the requested height variances was not illegal, arbitrary and capricious, or an abuse of discretion, and the Supreme Court properly denied that branch of the petition which was to annul that portion of the determination and dismissed that portion of the proceeding (see Matter of White Birch Circle Realty Corp. v. DeChance, 212 AD3d at 731). BARROS, J.P., CHAMBERS, WARHIT and TAYLOR, JJ., concur. By Connolly, J.P.; Nelson, Maltese, Christopher, JJ. ANTOINETTE PORCASI, app, v. SHAHINOOR OJI, ET AL., res — (Index No. 719530/20) Peña & Kahn, PLLC, Bronx, NY (Eric J. Gottfried of counsel), for appellant. Nancy L. Isserlis (The Zweig Law Firm, P.C., Woodmere, NY [Jonah S. Zweig and Michael Goitein], of counsel), for respondents Shahinoor Oji and ASMJMI Corp. In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered August 25, 2021. The order, insofar as appealed from, granted that branch of the motion of the defendants Shahinoor Oji and ASMJMI Corp. which was for summary judgment dismissing the complaint insofar as asserted against them, granted the motion of the defendants Uber Technologies, Inc., and Uber USA, LLC, for summary judgment dismissing the complaint insofar as asserted against them, and denied the plaintiff’s cross-motion for summary judgment on the issue of liability against the defendant Shahinoor Oji. ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of the defendants Shahinoor Oji and ASMJMI Corp. which was for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof granting the motion of the defendants Uber Technologies, Inc., and Uber USA, LLC, for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff. The plaintiff allegedly sustained injuries when, while attempting to board a vehicle, she stepped off the curb into the street and tripped on a bulge or “hummock” located in the street between the curb and the vehicle. The vehicle was owned by the defendant ASMJMI Corp. and operated by the defendant Shahinoor Oji (hereinafter together the vehicle defendants). The plaintiff’s friend had ordered the vehicle on her cell phone through the Uber application, which is owned and operated by the defendants Uber Technologies, Inc., and Uber USA, LLC (hereinafter together the Uber defendants). On October 21, 2020, the plaintiff commenced this action to recover damages for personal injuries she allegedly sustained as a result of the accident. The vehicle defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, and the Uber defendants moved for summary judgment dismissing the complaint insofar as asserted against them. The plaintiff opposed the motions and cross-moved for summary judgment on the issue of liability against Oji. In an order entered August 25, 2021, the Supreme Court, among other things, granted that branch of the vehicle defendants’ motion, granted the Uber defendants’ motion, and denied the plaintiff’s cross-motion. The plaintiff appeals. “To hold a defendant liable in common-law negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) that the breach constituted a proximate cause of the injury” (Lynfatt v. Escobar, 71 AD3d 743, 744; see Smith v. Dutchess Motor Lodge, 213 AD3d 881). “Although the issue of proximate cause is generally one for the finder of fact, liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes” (Hanna v. Valenti, 214 AD3d 772, 773 [internal quotation marks omitted]). “A common carrier owes a duty to a passenger to provide a reasonably safe place to board and disembark its vehicle” (Kasper v. Metropolitan Transp. Auth. Long Is. Bus, 90 AD3d 998, 999; see Miller v. Fernan, 73 NY2d 844, 846; O’Connor v. Ronnie Cab Corp., 142 AD3d 972, 973). 34 RCNY 4-11(c) requires taxis and for-hire vehicles to be within 12 inches of the curb when picking up or discharging passengers. Here, the Supreme Court should have denied that branch of the vehicle defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them and the Uber defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. Oji attested in his affidavit submitted in support of both motions that he stopped his vehicle approximately two feet from the curb to pick up the plaintiff, which would constitute a violation of 34 RCNY 4-11(c). Thus, the defendants failed to establish, prima facie, that Oji did not breach his duty to the plaintiff, as a common carrier, to provide a safe place to board the vehicle (see Miller v. Fernan, 73 NY2d at 846; O’Connor v. Ronnie Cab Corp., 142 AD3d at 974; cf. Kasper v. Metropolitan Transp. Auth. Long Is. Bus, 90 AD3d at 999). Furthermore, the defendants failed to establish, prima facie, that Oji’s alleged negligence was not a proximate cause of the accident, as they failed to demonstrate that Oji’s alleged negligence merely furnished the occasion for the accident. Since a factfinder could reasonably determine that the accident was a natural and foreseeable consequence of the risk created by Oji’s alleged negligence, the issue should be submitted to a jury (see Hain v. Jamison, 28 NY3d 524, 532-533; Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 316; Smith v. Dutchess Motor Lodge, 213 AD3d at 882-883; Douglas v. Kone, 204 AD3d 887, 888). Contrary to the plaintiff’s contention, however, she failed to eliminate triable issues of fact as to whether Oji’s alleged negligence proximately caused her injuries (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). Therefore, the Supreme Court properly denied the plaintiff’s cross-motion for summary judgment on the issue of liability against Oji, regardless of the sufficiency of the opposition papers. The parties’ remaining contentions either are without merit or need not be reached in light of our determination. CONNOLLY, J.P., BRATHWAITE NELSON, MALTESE and CHRISTOPHER, JJ., concur. By Duffy, J.P.; Ford, Dowling, Taylor, JJ. PATRICIA MITCHELL, app, v. VILLAGE OF MONROE, ET AL., res — (Index No. 1874/17) Sanford F. Young, New York, NY, for appellant. Drake Loeb PLLC, New Windsor, NY (Judith A. Waye and Gerber Ciano Kelly Brady LLP [Brendan T. Fitzpatrick and Jamie R. Prisco], of counsel), for respondents. In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated May 12, 2021, and (2) a judgment of the same court dated August 31, 2021. The order granted the defendants’ motion for summary judgment dismissing the complaint. 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]; Matter of Aho, 39 NY2d at 248). The plaintiff commenced this action against the defendants, Village of Monroe and Village of Monroe Department of Public Works, to recover damages for personal injuries she allegedly sustained when she tripped and fell in a hole or depression in a grassy area in the Village. The defendants moved for summary judgment dismissing the complaint on the ground, among others, that they did not receive prior written notice of the alleged condition as required by Village Law §6-628. In an order dated May 12, 2021, the Supreme Court granted the defendants’ motion. A judgment was thereafter entered upon the order in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff appeals. A municipality for which a prior written notification law such as Village Law §6-628 has been adopted “may avoid liability for a defect or hazardous condition that falls within the scope of the law if it can establish that it has not been notified in writing of the existence of the defect or hazard at a specific location” (O’Sullivan v. City of Long Beach, 209 AD3d 757, 757 [internal quotation marks omitted]; see Amabile v. City of Buffalo, 93 NY2d 471, 474). “Such [prior written] notice is obviated where the plaintiff demonstrates that the municipality ‘created the defect or hazard through an affirmative act of negligence’ or that a ‘special use’ conferred a benefit on the municipality” (Groninger v. Village of Mamaroneck, 17 NY3d 125, 127-128, quoting Amabile v. City of Buffalo, 93 NY2d at 474). Here, in moving for summary judgment dismissing the complaint, the defendants met their prima facie burden of establishing that they did not receive prior written notice of the condition alleged, thereby shifting the burden to the plaintiff of demonstrating either that a triable issue of fact existed in that regard or that one of the Amabile exceptions applied (see Smith v. City of New York, 210 AD3d 53; O’Sullivan v. City of Long Beach, 209 AD3d at 757; see also Groninger v. Village of Mamaroneck, 17 NY3d at 129). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint. DUFFY, J.P., FORD, DOWLING and TAYLOR, JJ., concur. By Lasalle, P.J.; Connolly, Genovesi, Voutsinas, JJ. SANDRA BRAITHWAITE, ETC., res, v. CITY OF NEW YORK, def, NEW YORK CITY TRANSIT AUTHORITY, ET AL., app — (Index No. 502803/18) Anna J. Ervolina, Brooklyn, NY (Timothy J. O’Shaughnessy of counsel), for appellants. In an action, inter alia, to recover damages for wrongful death, the defendants New York City Transit Authority and Metropolitan Transit Authority appeal from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated February 16, 2021. The order, insofar as appealed from, failed to determine those defendants’ cross-motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. ORDERED that the appeal is dismissed, without costs or disbursements. We do not reach the arguments of the defendants New York City Transit Authority and Metropolitan Transit Authority regarding their cross-motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. The cross-motion was not addressed in the order appealed from and, therefore, remains pending and undecided (see Katz v. Katz, 68 AD2d 536, 543). Accordingly, we dismiss the appeal. LASALLE, P.J., CONNOLLY, GENOVESI and VOUTSINAS, JJ., concur. By Lasalle, P.J.; Connolly, Chambers, Taylor, JJ. BANK OF NEW YORK MELLON, ETC., res, v. JOSEPH DEMATTEIS, ETC., ET AL., app, ET AL., def — (Index No. 54252/21) APPEAL by the defendants Joseph DeMatteis and Hunter Street Properties, LLC, in an action to foreclose a mortgage, from an order of the Supreme Court (Janet C. Malone, J.), dated December 2, 2021, and entered in Westchester County. The order, insofar as appealed from, denied those branches of those defendants’ motion which were pursuant to CPLR 3211(a)(5) to dismiss the first and third causes of action insofar as asserted against them. Galgano Sharp, LLP, White Plains, NY (Eric R. Sharp of counsel), for appellants. Woods Oviatt Gilman, LLP, Rochester, NY (David B. Wildermuth of counsel), for respondent. CONNOLLY, J. This appeal requires us to examine whether the stay provided by section 362 of the 1978 Bankruptcy Code (11 USC §362[a]) operates as a “statutory prohibition” under CPLR 204(a) to toll the statute of limitations to commence a mortgage foreclosure action against a defendant debtor who no longer owns the property that is the subject of the mortgage foreclosure action. We hold that the bankruptcy stay pursuant to subsection 362(a)(1) (see 11 USC §362[a][1]) tolls the statute of limitations for commencing a mortgage foreclosure action against the defendant debtor, regardless of whether that defendant owns the property at the time of the bankruptcy filing. This appeal also requires us to determine whether the bankruptcy stay pursuant to subsection 362(a) applies to a nondebtor codefendant to which the defendant debtor transferred the property years before filing for bankruptcy. On the record before this Court, the plaintiff failed to meet its burden of raising a question of fact as to whether the bankruptcy stay applied to the nondebtor codefendant. I. Factual and Procedural Background On November 17, 2006, the defendant Joseph DeMatteis executed a note that was secured by a mortgage on certain real property located in Ossining (hereinafter the subject property). In 2012, DeMatteis deeded the subject property to the defendant Hunter Street Properties, LLC (hereinafter Hunter, and together with DeMatteis, the defendants). On June 19, 2014, the Bank of New York Mellon f/k/a the Bank of New York, as trustee for the certificateholders of the CWABS, Inc., asset-backed certificates, series 2006-23 (hereinafter BONY Mellon), alleging that it was the holder and owner of the note and mortgage, commenced an action against the defendants, among others, to foreclose the mortgage (hereinafter the 2014 foreclosure action). The complaint in the 2014 foreclosure action alleged that DeMatteis defaulted under the terms of the note and mortgage by failing to make the payment due on December 1, 2008, and all subsequent payments thereafter, and the complaint elected to call due the entire unpaid balance. Thereafter, BONY Mellon moved in the 2014 foreclosure action for an order of reference, and Hunter cross-moved to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction. Following a hearing, the Supreme Court held that BONY Mellon failed to establish by a preponderance of the evidence that Hunter was properly served with process, and granted Hunter’s cross-motion to dismiss the complaint in the 2014 foreclosure action insofar as asserted against it. By order dated March 15, 2018, the court dismissed the 2014 foreclosure action based on BONY Mellon’s failure to prosecute. On October 20, 2020, DeMatteis filed a voluntary chapter 7 petition in bankruptcy in the United States Bankruptcy Court for the District of Arizona (hereinafter the bankruptcy proceeding). DeMatteis asserted in his bankruptcy petition that he did not have a legal or equitable interest in any real property as of October 20, 2020. The bankruptcy petition further provided that DeMatteis lived in Arizona. Neither the note nor the mortgage were listed on the bankruptcy petition. On February 2, 2021, DeMatteis received a discharge in the bankruptcy proceeding. The bankruptcy proceeding was closed on February 11, 2021. By summons and complaint filed on April 8, 2021, the plaintiff, the Bank of New York Mellon, f/k/a the Bank of New York as trustee for registered holders of CWABS, Inc., asset-backed certificates, series 2006-23, alleging, inter alia, that it was the owner and holder of the note and mortgage, commenced this action against the defendants, among others.1 The first cause of action alleged, among other things, that DeMatteis failed to repay the installment payment due on August 1, 2015, and subsequent payments, and that a principal balance of $485,618.82, together with accrued interest from July 1, 2015, and certain costs, expenses, taxes, charges, and fees, were due and owing. The first cause of action sought to foreclose the mortgage. The second cause of action sought reformation of the legal description of the subject property in the mortgage, and the third cause of action sought, inter alia, to quiet title to the subject property.2 The defendants interposed an answer, asserting various affirmative defenses, including that the action was barred by the statute of limitations. The defendants moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred. Among other things, the defendants contended that BONY Mellon accelerated the loan in the complaint for the 2014 foreclosure action, and therefore, the six-year statute of limitations for this foreclosure action began to run when BONY Mellon commenced the 2014 foreclosure action. As this action was commenced in April 2021, the defendants contended that it was untimely. The plaintiff opposed the defendants’ motion, contending that the statute of limitations to commence this action against DeMatteis and Hunter was tolled. First, the plaintiff contended that the statute of limitations was tolled by a series of executive orders issued by then-Governor Andrew Cuomo in response to the COVID-19 pandemic (see Executive Order [A. Cuomo] Nos. 202.8 [9 NYCRR 8.202.8], 202.14 [9 NYCRR 8.202.14], 202.28 [9 NYCRR 8.202.28], 202.38 [9 NYCRR 8.202.38], 202.48 [9 NYCRR 8.202.48], 202.55 [9 NYCRR 8.202.55], 202.55.1 [9 NYCRR 8.202.55.1], 202.60 [9 NYCRR 8.202.60], 202.63 [9 NYCRR 8.202.63], 202.67 [9 NYCRR 8.202.67], 202.72 [9 NYCRR 8.202.72]) (hereinafter collectively the COVID-19 executive orders). The plaintiff further contended that the statute of limitations was tolled by the automatic bankruptcy stay of subsection 362(a) of the 1978 Bankruptcy Code (see 11 USC §362[a]). According to the plaintiff, this action was timely based upon the collective effect of the tolls pursuant to the COVID-19 executive orders and the automatic bankruptcy stay. In the reply affirmation of their attorney, the defendants contended, inter alia, that the automatic bankruptcy stay did not toll the statute of limitations to commence this action because DeMatteis did not own the subject property at the time he filed his bankruptcy petition, and, as such, the subject property was not a part of the bankruptcy estate. The defendants further contended that, even if the automatic bankruptcy stay tolled the statute of limitations to commence the action against DeMatteis, it did not toll the statute of limitations to commence the action against Hunter because Hunter did not file for bankruptcy. In an order dated December 2, 2021, the Supreme Court, among other things, granted that branch of the defendants’ motion which was to dismiss the second cause of action, for reformation of the mortgage, insofar as asserted against them. However the court denied those branches of the defendants’ motion which were to dismiss the remainder of the complaint insofar as asserted against them. The court did not address the effect of the COVID-19 executive orders or the automatic bankruptcy stay. Instead, the court held, inter alia, that, because the 2014 foreclosure action had been dismissed for lack of personal jurisdiction against Hunter, that action had not been commenced against Hunter, the debt had not been accelerated against Hunter, and the statute of limitations had not started to run. The court also held, in effect, that, because the 2014 foreclosure action had been discontinued against DeMatteis due to failure to prosecute, the statute of limitations had not started to run as against him. The defendants appeal. We modify. II. Standard for CPLR 3211(a)(5) Motions “A party may move for judgment dismissing one or more causes of action asserted against it on the ground that the cause of action may not be maintained because of the statute of limitations” (HSBC Bank USA, N.A. v. Francis, 214 AD3d 58, 60-61; see CPLR 3211[a][5]). “‘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’” (HSBC Bank USA, N.A. v. Francis, 214 AD3d at 61, quoting Cadlerock Joint Venture, L.P. v. Trombley, 189 AD3d 1157, 1158). “‘If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period’” (HSBC Bank USA, N.A. v. Francis, 214 AD3d at 61, quoting Barry v. Cadman Towers, Inc., 136 AD3d 951, 952). III. The Effect of the 2014 Foreclosure Action Pursuant to CPLR 213(4), an action to foreclose a mortgage is subject to a six-year statute of limitations (see Bank of N.Y. Mellon v. Stewart, 216 AD3d 720; GMAT Legal Title Trust 2014-1 v. Kator, 213 AD3d 915, 916). “‘When a mortgage is payable in installments, which is the typical practice, an acceleration of the entire amount due begins the running of the statute of limitations on the entire debt’” (Deutsche Bank Natl. Trust Co. v. Lubonty, 208 AD3d 142, 146, quoting Deutsche Bank Trust Co. Ams. v. Marous, 186 AD3d 669, 670). Among other ways, acceleration occurs when the plaintiff in a foreclosure action elects in the complaint to call due the entire amount secured by the mortgage (see Freedom Mtge. Corp. v. Engel, 37 NY3d 1, 22; GMAT Legal Title Trust 2014-1 v. Kator, 213 AD3d at 916; Ditech Fin., LLC v. Connors, 206 AD3d 694, 697). Under the recently enacted Foreclosure Abuse Prevention Act (L 2022, ch 821; hereinafter FAPA), which amended CPLR 213(4), where, as here, the statute of limitations is raised as a defense in a mortgage foreclosure action, “‘and if that defense is based on a claim that the instrument at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated’” (GMAT Legal Title Trust 2014-1 v. Kator, 213 AD3d at 916-917, quoting CPLR 213[4][a]). Here, in support of their motion, the defendants demonstrated that the complaint in the 2014 foreclosure action called due the entire debt. The 2014 foreclosure action was dismissed against Hunter for lack of personal jurisdiction and was dismissed against DeMatteis for failure to prosecute. Because the 2014 foreclosure action was not dismissed “based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated” (CPLR 213[4][a]), the plaintiff is estopped from asserting that the debt was not validly accelerated by the commencement of the 2014 foreclosure action (see id.; Bank of N.Y. Mellon v. Stewart, 216 AD3d 720; GMAT Legal Title Trust 2014-1 v. Kator, 213 AD3d at 917). We note, in any event, that even prior to the enactment of FAPA, contrary to the Supreme Court’s determination, the fact that the complaint in the 2014 foreclosure action was dismissed insofar as asserted against Hunter for failure to effectuate personal service upon it does not invalidate the election of BONY Mellon to exercise its right to accelerate the maturity of the underlying debt (see Federal Natl. Mtge. Assn. v. Woolstone, 196 AD3d 548, 549). Similarly, the dismissal of the complaint in the 2014 foreclosure action insofar as asserted against DeMatteis for failure to prosecute did not revoke the acceleration of the debt (see Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 AD3d 985, 987; EMC Mtge. Corp. v. Patella, 279 AD2d 604, 606). Thus, the defendants, established, prima facie, that the instant action, which was commenced more than six years after the complaint in the 2014 foreclosure action accelerated the debt, was untimely (see HSBC Bank USA, N.A. v. Francis, 214 AD3d at 61; Wilmington Sav. Fund Socy., FSB v. 117 Pulaski, LLC, 197 AD3d 686, 687). With the defendants having satisfied their initial burden of proof as to the untimeliness of this action, “the burden shifted 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” (HSBC Bank USA, N.A. v. Francis, 214 AD3d at 61; see Wilmington Sav. Fund Socy., FSB v. 117 Pulaski, LLC, 197 AD3d at 687). The plaintiff argues that the statute of limitations within which it was required to commence this action against DeMatteis and Hunter was tolled by the collective effect of the COVID-19 executive orders and the automatic bankruptcy stay. We address those contentions as alternative grounds for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 NY2d 539). IV. The COVID-19 Executive Orders Tolled the Statute of Limitations to Commence this Action Against Both DeMatteis and Hunter First, as this Court held in Brash v. Richards (195 AD3d 582), Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), which was signed by then-Governor Andrew Cuomo in response to the COVID-19 pandemic, constituted a toll of the filing deadlines applicable to litigation in New York courts (see McLaughlin v. Snowlift, Inc., 214 AD3d 720, 721; Murphy v. Harris, 210 AD3d 410; Matter of Roach v. Cornell Univ., 207 AD3d 931, 933). This toll was extended through several subsequent executive orders, the last of which remained in effect until November 3, 2020 (see Executive Order [A. Cuomo] Nos. 202.14 [9 NYCRR 8.202.14], 202.28 [9 NYCRR 8.202.28], 202.38 [9 NYCRR 8.202.38], 202.48 [9 NYCRR 8.202.48], 202.55 [9 NYCRR 8.202.55], 202.55.1 [9 NYCRR 8.202.55.1], 202.60 [9 NYCRR 8.202.60], 202.63 [9 NYCRR 8.202.63], 202.67 [9 NYCRR 8.202.67], 202.72 [9 NYCRR 8.202.72]). Thus, due to the tolling provision of the COVID-19 executive orders, the statute of limitations within which the plaintiff was required to commence this action was tolled between March 20, 2020, and November 3, 2020 (see McLaughlin v. Snowlift, Inc., 214 AD3d at 721; Brash v. Richards, 195 AD3d 582). On March 20, 2020, the plaintiff still had 91 days left on the statute of limitations. Accordingly, when the statute of limitations began to run again, the plaintiff had 91 days, or until February 2, 2021, to commence this action. As the plaintiff did not commence this action until April 8, 2021, this action would still be untimely, unless the plaintiff raised a question of fact as to whether the automatic bankruptcy stay also tolled the statute of limitations. V. The Automatic Bankruptcy Stay Tolled the Statute of Limitations to Commence This Action Against DeMatteis But Not Hunter We agree with the plaintiff that the automatic bankruptcy stay tolled the statute of limitations to commence this action against DeMatteis. However, we reach a different conclusion with respect to Hunter. Section 362 of the 1978 Bankruptcy Code provides that the filing of a bankruptcy petition operates as an automatic stay of certain prescribed actions (see 11 USC §362[a]; Carr v. McGriff, 8 AD3d 420, 422; 3 Collier on Bankruptcy 362.01 [16th ed 2023]). Subsection 362(a)(1) prohibits the “commencement or continuation” of a judicial action or proceeding “against the debtor that was or could have been commenced before the commencement of [the bankruptcy proceeding], or to recover a claim against the debtor that arose before the commencement of [the bankruptcy proceeding]” (11 USC §362[a][1]; see In re Fogarty, 39 F4th 62, 72 [2d Cir 2022]; In re Ebadi, 448 BR 308, 313 [Bankr ED NY 2011]; see also Lubonty v. U.S. Bank N.A., 34 NY3d 250, 255). In addition, subsection 362(a)(3) prohibits “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate” (11 USC §362[a][3]), subsection 362(a)(4) prohibits “any act to create, perfect, or enforce any lien against property of the estate” (id. §362[a][4]), and subsection 362(a)(5) prohibits “any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the [bankruptcy proceeding]” (id. §362[a][5]). The automatic stay is effective immediately upon the filing of the bankruptcy petition, without further action (see Carr v. McGriff, 8 AD3d at 422). “The effects of [the automatic] stay are wide-ranging and limit virtually all judicial action against the debtor and any codebtors: The automatic stay is designed to provide blanket relief from creditor action and any exceptions from the stay are narrowly written and strictly construed” (Deutsche Bank Natl. Trust Co. v. Lubonty, 208 AD3d at 146 [citations and internal quotation marks omitted]; see Lubonty v. U.S. Bank N.A., 34 NY3d 250, 258). The automatic bankruptcy stay of 11 USC §362 operates as a “statutory prohibition” under CPLR 204(a), which tolls the limitations period for commencement of an action, including foreclosure actions (see Deutsche Bank Natl. Trust Co. v. Lubonty, 208 AD3d at 147; Mercury Capital Corp. v. Shepherds Beach, 281 AD2d 604, 605). A. DeMatteis We start by analyzing whether subsection 362(a)(1), which, among other things, prohibits the “commencement” of an action “against the debtor” (11 USC §362[a][1]), prohibited the plaintiff from commencing this action against DeMatteis during the time that the bankruptcy stay was in effect. The definition of “debtor” applicable to the Bankruptcy Code means a “person or municipality concerning which a case under this title has been commenced” (id. §101[13]). DeMatteis, who filed a bankruptcy petition on October 20, 2020, was a “debtor” within the meaning of 11 USC §362(a).3 Next, we must determine whether the commencement of this mortgage foreclosure action would have been “against the debtor” within the meaning of subsection 362(a)(1), even though DeMatteis, the debtor, was not the record owner of the subject property at the time he filed for bankruptcy. “The starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter” (Good Samaritan Hospital v. Shalala, 508 US 402, 409 [alterations and internal quotation marks omitted]; see Deutsche Bank Natl. Trust Co. v. Lubonty, 208 AD3d at 147; see also Lubonty v. U.S. Bank N.A., 34 NY3d at 255; In re Fogarty, 39 F4th at 71). Where the words of the statute are plain and unambiguous, there is no need to resort to legislative history (see Ex parte Collett, 337 US 55, 61; In re Rinegard-Guirma, 2023 WL 5006264, *6-7, 2023 Bankr LEXIS 1955, *16-17 [Bankr D Or, Aug. 4, 2023, No. 22-31651-DWH13]; see also Lynch v. City of New York, 35 NY3d 517, 521). The United States Court of Appeals for the Second Circuit has explained that 11 USC §362(a)(1) operates as a stay of two categories of actions and proceedings: (1) those “‘against the debtor’” or (2) those “‘to recover a claim against the debtor’” (In re Fogarty, 39 F4th at 72, quoting 11 USC §362[a][1]; see In re Colonial Realty Co., 980 F2d 125, 131 [2d Cir 1992]). “[T]he latter category—to recover a claim against the debtor—must encompass cases in which the debtor is not a defendant; it would otherwise be totally duplicative of the former category and pure surplusage” (In re Fogarty, 39 F4th at 72 [internal quotation marks omitted]; see In re Colonial Realty Co., 980 F2d at 131). “By contrast, the former category—actions against the debtor—must encompass actions in which the debtor is a named defendant” (In re Fogarty, 39 F4th at 72 [internal quotation marks omitted]). In Fogarty, the Second Circuit held that subsection 362(a)(1) was violated by the foreclosure sale of a property when the debtor was named as a defendant in the New York state foreclosure action, even though the debtor only resided in the property and was not the owner of the property (see id. at 68). The Second Circuit rejected the contention that the bankruptcy stay did not apply because the debtor was named as a defendant only as an interested party (see id. at 74). The court explained that section 362(a) does not “inquire into why the debtor was named as a defendant in an action or proceeding” (id.). The court then held that there is a “bright-line rule” that “if the debtor is a named party in a proceeding or action, then the automatic stay imposed by” subsection 362(a)(1) “applies to the continuation of such a proceeding or action” (id. at 76). Likewise, in other cases determining whether subsection 362(a)(1) stayed the continuation of a foreclosure action or proceeding against the debtor, the decisive factor was whether the debtor was named as a defendant in the foreclosure action or proceeding. For example, in Ebadi, the United States Bankruptcy Court for the Eastern District of New York held that a foreclosure sale violated subsection 362(a)(1) because the debtor was named as a defendant in the New York state foreclosure action, even though the debtor, who was a guarantor of the relevant debt, had no ownership interest in the property (see In re Ebadi, 448 BR at 311, 311 n 3, 314, 318). By contrast, in a later case, the United States District Court for the Southern District of New York distinguished Ebadi and held that a foreclosure order in a Georgia foreclosure action was not a violation of subsection 362(a)(1) because the debtor was not a party to the foreclosure action (see In re Stillwater Asset Backed Offshore Fund Ltd., 565 BR 42, 49-50 [SD NY 2017]). We similarly hold that, by its plain language, section 362(a)(1) prohibits commencing an action against the debtor while the stay is in effect, regardless of why the debtor would be named as a defendant in the action. Although Fogarty (39 F4th at 76), Ebadi (448 BR at 313-314), and Stillwater (565 BR at 49-50) all analyzed whether the “continuation” of foreclosure actions violated subsection 362(a)(1), in our view, the reasoning of those cases apply equally to the question of whether the “commencement” of an action “against the debtor” would violate the same subsection of the statute. Indeed, in Lubonty v. U.S. Bank N.A., the Court of Appeals held that 11 USC §362(a)(1) expressly prohibits the “‘commencement or continuation’” of any covered action and is a “blanket ban on filing or continuing lawsuits against the debtor” (Lubonty v. U.S. Bank N.A., 34 NY3d at 255; see Wells Fargo Bank, N.A. v. Newhouse, 218 AD3d 1117). We therefore reject the contention that the bankruptcy stay did not apply to DeMatteis because he had deeded the subject property to Hunter prior to filing for bankruptcy. Accordingly, we hold that the bankruptcy stay prohibited the plaintiff from commencing this mortgage foreclosure action against DeMatteis beginning on October 1, 2020, when he filed for bankruptcy. Pursuant to 11 USC §362(c)(2), the stay established by 11 USC §362(a)(1) continues “until the earliest of…the time the case is closed;…the time the case is dismissed; or…the time a discharge is granted or denied” (id. §362[c][2] [emphasis added]; see Deutsche Bank Natl. Trust Co. v. Lubonty, 208 AD3d at 149; PSP-NC, LLC v. Raudkivi, 138 AD3d 709, 711). Thus, contrary to the plaintiff’s contention, the automatic bankruptcy stay continued in effect until February 2, 2021, which was the date that DeMatteis received a discharge, not February 11, 2021, which was the date the bankruptcy proceeding was marked “closed” (see Deutsche Bank Natl. Trust Co. v. Lubonty, 208 AD3d at 149; In re Killmer, 513 BR 41, 50 [Bankr SD NY 2014]). In sum regarding DeMatteis, the automatic stay pursuant to 11 USC §362(a)(1) operated as a “statutory prohibition” under CPLR 204(a), and the statute of limitations within which the plaintiff was required to commence this action against DeMatteis was tolled between October 20, 2020, and February 2, 2021 (see 11 USC §362[a][1]; [c][2]; CPLR 204[a]; Deutsche Bank Natl. Trust Co. v. Lubonty, 208 AD3d at 147).4 On February 2, 2021, the plaintiff had 91 days, or until May 4, 2021, to commence this action against DeMatteis. As such, this action, commenced on April 8, 2021, was timely with respect to DeMatteis. B. Hunter Next, we must decide whether the automatic bankruptcy stay pursuant to 11 USC §362(a) also tolled the statute of limitations to commence this action against Hunter. It is undisputed that Hunter did not file for bankruptcy. It is likewise undisputed that DeMatteis transferred the subject property to Hunter and that Hunter is the subject property’s owner of record by virtue of a deed recorded on December 14, 2012. Further, the plaintiff does not allege that DeMatteis ever had a membership interest or any other kind of interest in Hunter, nor is there any indication in the record that DeMatteis had such an interest. Nevertheless, the plaintiff contends that DeMatteis’s bankruptcy petition, filed approximately seven years after DeMatteis deeded the subject property to Hunter, triggered the automatic bankruptcy stay and prevented the plaintiff from commencing this action against Hunter. We start with the principle that the automatic stay provision of subsection 362(a)(1) does not typically protect nondebtor codefendants (see Deutsche Bank Natl. Trust Co. v. Karlis, 138 AD3d 915, 917; Katz v. Mount Vernon Dialysis, LLC, 121 AD3d 856, 857; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Oxford Venture Partners, LLC, 13 AD3d 89, 89; Rosenbaum v. Dane & Murphy, 189 AD2d 760, 761; Queenie, Ltd. v. Nygard Intern., 321 F3d 282, 287 [2d Cir 2003]; Teachers Ins. and Annuity Assn. of Am. v. Butler, 803 F2d 61, 65 [2d Cir 1986]; 3 Collier on Bankruptcy 362.03[3][d] [16th ed 2023]; see also CenTrust Servs. v. Guterman, 160 AD2d 416, 418 [a bankruptcy stay does not prevent a plaintiff from proceeding on causes of action against nonbankrupt defendants, which do not involve the bankrupt's property]). Nevertheless, there are limited circumstances under which an automatic stay may be extended to nondebtors (see Doe v. Jasinski, 195 AD3d 1399, 1401; Empire Erectors & Elec. Co., Inc. v. Unlimited Locations LLC, 102 AD3d 419, 419; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Oxford Venture Partners, LLC, 13 AD3d at 89). Those limited circumstances are usually when a claim against the nondebtor will have an “immediate adverse economic consequence for the debtor’s estate” (Queenie, Ltd. v. Nygard Intern., 321 F3d at 287; see Doe v. Jasinski, 195 AD3d at 1401; Empire Erectors & Elec. Co., Inc. v. Unlimited Locations LLC, 102 AD3d at 419; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Oxford Venture Partners, LLC, 13 AD3d at 89). For example, the automatic bankruptcy stay may apply to nondebtors where the action seeks to establish an obligation of which the debtor is a guarantor, a claim against the debtor’s insurer, and actions where “there is such identity between the debtor and the third-party defendant that the debtor may be said to be the real party defendant” (Queenie, Ltd. v. Nygard Intern., 321 F3d at 288 [internal quotation marks omitted]). The plaintiff in this case, however, has not argued that the automatic bankruptcy stay should apply to Hunter because this action would have had an immediate adverse economic consequence on DeMatteis’s bankruptcy estate, and we express no opinion on the merits of such an argument (see generally Doe v. Jasinski, 195 AD3d at 1401; Empire Erectors & Elec. Co., Inc. v. Unlimited Locations LLC, 102 AD3d at 419; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Oxford Venture Partners, LLC, 13 AD3d at 89). Instead, the plaintiff contends that the automatic bankruptcy stay tolled the statute of limitations to commence this action against Hunter because the subject property was considered property of the estate under bankruptcy law. Although the automatic bankruptcy stay would have prohibited the plaintiff from commencing an action against Hunter to foreclose on the subject property if the subject property were property of the estate (see 11 USC §362[a][3], [4]), on this record, the plaintiff has failed to sufficiently raise a question of fact as to whether the subject property was property of the estate. Pursuant to 11 USC §541, the commencement of a bankruptcy proceeding creates an estate (see id.). The bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case,” wherever located and by whomever held (id. §541[a][1]). Congress intended section 541 to be interpreted broadly (see United States v. Whiting Pools, Inc., 462 US 198, 205; In re Prudential Lines Inc., 928 F2d 565, 569 [2d Cir 1991]). “[E]very conceivable interest of the debtor, future, nonpossessory, contingent, speculative, and derivative, is within the reach of §541″ (Chartschlaa v. Nationwide Mut. Ins. Co., 538 F3d 116, 122 [2d Cir 2008] [internal quotation marks omitted]). Nevertheless, “[p]roperty interests are created and defined by state law” (Butner v. United States, 440 US 48, 55). “It is state law that determines whether the debtor’s interest in any particular item of property is sufficient to confer a property right on the bankruptcy estate under Section 541(a)” (In re Frederes, 141 BR 289, 291 [Bankr WD NY 1992]; see In re Prudential Lines Inc., 928 F2d at 569).5 The trustee of a bankruptcy estate can assert no greater property rights than the debtor had on the date the bankruptcy proceeding was commenced (see In re S.W. Bach & Co., 435 BR 866, 878 [Bankr SD NY 2010]; 5 Collier on Bankruptcy 541.03; see also First Fed. Sav. & Loan Assn. of Rochester v. Brown, 86 AD2d 963, 963 [property of the estate does not include property in which the bankrupt has no interest]). On this record, the plaintiff has failed to raise a question of fact as to whether DeMatteis had a legal or equitable interest in the subject property on October 20, 2020, the date he filed his bankruptcy petition. Although DeMatteis was the record owner of the subject property at one point, the complaint in this action alleged that Hunter was the owner of record by virtue of a deed recorded on December 14, 2012.6 The mere fact that DeMatteis owned the subject property approximately seven years before he filed for bankruptcy does not—without more—satisfy the plaintiff’s burden of raising a question of fact as to his legal or equitable interest in the subject property at the time the bankruptcy proceeding was commenced (see In re Stillwater Asset Backed Offshore Fund Ltd., 565 BR at 50 [the debtor lost any interest it had in the property at the time it transferred its interest in the property to the unaffiliated third-party, and so a foreclosure order on the property, three years later, did not implicate property of the debtor's bankruptcy estate]; see also Bank of N.Y. v. Ortiz, 30 AD3d 551, 551-552 [where the property had been sold at public auction prior to the debtor filing the bankruptcy petition, the debtor had no legal or equitable interest in the property and the property was not included in the bankruptcy estate]; In re Perl, 811 F3d 1120, 1127-1128 [9th Cir 2016] [under California law, entry of judgment and a writ of possession following unlawful detainer proceedings extinguished all legal and equitable interests that the debtor had in the property at issue prior to the filing of the bankruptcy proceeding]; Cook v. Huey, 506 BR 174, 176 [ND NY 2013] [valid pre-petition foreclosure sale divested the debtors of any legal or equitable interests they had in the property and so the property was not property of the bankruptcy estate]; Wisotzke v. Ontario County, 409 BR 20 [WD NY 2009], affd 382 Fed Appx 99 [2d Cir] [default judgment in in rem tax foreclosure proceeding had effected a transfer of title of the property to the county and the debtor's right to redeem it had expired by the time he filed his bankruptcy petition, and so the property was not part of the debtor's bankruptcy estate]). Section 541 concerns property of the estate as of the date of commencement of the bankruptcy case, not some earlier point in time, and “nothing in section 541 can revest a debtor with property lost prepetition” (5 Collier on Bankruptcy 541.03; see Matter of Boyd, 11 F3d 59, 60 [5th Cir 1994]; see also Piccolo v. Dime Sav. Bank of New York, 145 BR 753, 756 [ND NY 1992] ["The automatic stay simply prohibits further acts. It does not invalidate acts already taken" (internal quotation marks omitted)]; In re Cohoes Indus. Term., Inc., 70 BR 214, 218 [SD NY 1986] ["the automatic stay does not operate to enjoin actions respecting property in which the debtor no longer has an interest at the time of the filing of the petition"], affd sub nom. In re Cohodes Indus. Term. Inc., 831 F2d 283 [2d Cir 1987]). We similarly reject the plaintiff’s contention that it raised a question of fact as to DeMatteis’s legal or equitable interest in the subject property at the time the bankruptcy proceeding was commenced merely because DeMatteis was an obligor on the note and the mortgagor on the mortgage. Although there are no allegations regarding the circumstances or terms and conditions of the transfer of the subject property from DeMatteis to Hunter in December 2012, even assuming for purposes of this CPLR 3211(a)(5) motion that DeMatteis remained obligated to repay the underlying debt despite the transfer of the subject property, the plaintiff has not provided any support for the proposition that this obligation alone rendered the subject property part of the estate. Courts in other jurisdictions have rejected similar contentions that the automatic bankruptcy stay applies to property that was not owned by the debtor at the time that the bankruptcy petition was filed merely because the debtor was liable for the indebtedness secured by the property (see In re Geris, 973 F2d 318, 320-321 [4th Cir 1992]; In re Potchen, 2022 WL 4690322, *6, 2022 Bankr LEXIS 2775, *14-15 [Bankr MD Fla, Sept 30, 2022, No. 6:22-BK-1156-TPG]). For example, in Geris, the United States Court of Appeals for the Fourth Circuit rejected an argument that the bankruptcy stay applied to real property that the debtor no longer owned, even though that property secured the debtor’s obligation on a deed of trust (see In re Geris, 973 F2d at 320-321). The court held that even though the debtor had a material interest in having the value of the property maximized when sold at foreclosure, insofar as it bore directly on the size of the deficiency for which he may have been obligated to pay the bank, holding that such an interest was sufficient to invoke the bankruptcy stay would be “cutting off foreclosure rights of secured creditors in any property standing as security for a debt that happened to be guaranteed by a bankrupt” (id. at 321). The court further held that such a result could not “have been an intended function of the automatic stay provision” (id.). We similarly conclude that the interest that DeMatteis has in seeing the value of the subject property maximized, when it is sold to satisfy the debt, is too attenuated to warrant considering the subject property to be property of DeMatteis’s bankruptcy estate (see id.). We acknowledge that there are circumstances where a debtor may have a legal or equitable interest in property, even when the debtor has transferred title to that property prior to commencing the bankruptcy proceeding. In particular, property of the estate may include a debtor’s possessory interest in real property (see Herkimer County Indus. Dev. Agency v. Village of Herkimer, 124 AD3d 1298, 1299 [debtor's leasehold interest in property was property of the bankruptcy estate]; In re 48th St. Steakhouse, Inc., 835 F2d 427, 430 [2d Cir 1987] ["(A) mere possessory interest in real property, without any accompanying legal interest, is sufficient to trigger the protection of the automatic stay"]; cf. In re St. Clair, 251 BR 660, 667 [D NJ 2000] ["'property from the estate'" encompasses property in the possession or control of the trustee or the debtor-in-possession, but only to the extent the trustee or debtor-in-possession has a good-faith, colorable claim to possession or control of the property"], affd sub nom. St. Clair v. Wood, 281 F3d 224 [3d Cir 2001]). In this case, however, the complaint does not allege that DeMatteis resided in the subject property at the time he filed his bankruptcy petition. In fact, the complaint alleged that the subject property was vacant and abandoned.7 Accordingly, there is no basis to question whether DeMatteis had a possessory interest in the subject property at the time he filed his bankruptcy petition. It is also true that there are many kinds of legal or equitable interests in real property that a debtor may have, even if the debtor does not have legal title to, or any possessory interest in, that property. For example, in Wells Fargo Bank, N.A. v. Newhouse (218 AD3d 1117), the Appellate Division, Fourth Department, determined that the debtor’s approximately $7,000 judgment, which was secured by a subordinate lien on the property, was an interest in the property. However, in this case, the plaintiff only points to DeMatteis’s status as the mortgagor and the former owner of the subject property to support its claim that the subject property was property of the estate. We emphasize that, under the procedural posture of this case, the plaintiff had the burden of raising a question of fact as to the applicability of a toll, and hence, the burden of raising a question of fact as to whether the subject property was property of the estate or that the bankruptcy stay otherwise applied. On this sparse record and with no extended argument on many of the relevant legal issues, the plaintiff failed to meet that burden. Based upon the record and arguments before us, the plaintiff could have commenced this action against Hunter while the bankruptcy stay was in effect without violating the stay, so long as DeMatteis was not named as a defendant (see In re Stillwater Asset Backed Offshore Fund Ltd., 565 BR at 48-49). Accordingly, as the bankruptcy stay triggered by DeMatteis’s bankruptcy petition did not prohibit the plaintiff from commencing this foreclosure action against Hunter, it did not operate as a “statutory prohibition” under CPLR 204(a) to toll the statute of limitations to commence this action against Hunter (see CenTrust Servs. v. Guterman, 160 AD2d at 418). As described above, with the benefit of the tolls pursuant to the COVID-19 executive orders, the plaintiff had until February 2, 2021, to commence this action against Hunter. Because the plaintiff did not commence this action until April 8, 2021, this action was untimely with respect to Hunter. VI. Conclusion In light of the foregoing, the Supreme Court properly denied that branch of the defendants’ motion which was to dismiss the first and third causes of action insofar as asserted against DeMatteis. However, the court should have granted that branch of the defendants’ motion which was to dismiss those causes of action insofar as asserted against Hunter as untimely. Accordingly, the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants’ motion which was to dismiss the first and third causes of action insofar as asserted against the defendant Hunter Street Properties, LLC, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from. LASALLE, P.J., CHAMBERS and TAYLOR, JJ., concur. ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants Joseph DeMatteis and Hunter Street Properties, LLC, which was to dismiss the first and third causes of action insofar as asserted against the defendant Hunter Street Properties, LLC, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.