Appellate Division Second Department

Handdown List released on: July 3, 2024

By Lasalle, P.J.; Barros, Voutsinas, Ventura, JJ. LANA GORDON, ET AL., ETC., res, v. VLADISLAV TSIRKIN CPA & CO., LLC, ET AL., app — (Index No. 1321/19) Allen Schwartz, Brooklyn, NY, for appellants. Catafago Fini, LLP, New York, NY (Jacques Catafago of counsel), for respondent Lana Gordon. Igor Niman, Brooklyn, NY, for respondent Anna Dykshteyn. In an action, inter alia, to recover damages for accounting malpractice and breach of contract, the defendants appeal from an order of the Supreme Court, Nassau County (David P. Sullivan, J.), entered July 23, 2021. The order, insofar as appealed from, denied those branches of the defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging accounting malpractice and breach of contract. ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging accounting malpractice and breach of contract are granted. The plaintiffs commenced this action, inter alia, to recover damages for accounting malpractice and breach of contract against the defendants, who are accountants, alleging that they failed to prepare and file K-1 statements and tax returns for Sapphire Agriculture, LLC, and ONYX, LLC. The defendants moved, among other things, pursuant to CPLR 3211(a) to dismiss the complaint. The Supreme Court, inter alia, denied those branches of the defendants’ motion which were to dismiss the causes of action alleging accounting malpractice and breach of contract. The defendants appeal. “On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference” (Angeli v. Barket, 211 AD3d 896, 897; see Leon v. Martinez, 84 NY2d 83, 87). “Although the facts pleaded are presumed to be true and are to be accorded every favorable inference, bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration” (Garendean Realty Owner, LLC v. Lang, 175 AD3d 653, 653 [internal quotation marks omitted]). “Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Rabos v. R&R Bagels & Bakery, Inc., 100 AD3d 849, 851-852; see Guggenheimer v. Ginzburg, 43 NY2d 268, 274-275; Nassau Operating Co., LLC v. DeSimone, 206 AD3d 920, 926). “Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery” (Connaughton v. Chipotle Mexican Grill, Inc., 29 NY3d 137, 142; see Nassau Operating Co., LLC v. DeSimone, 206 AD3d at 925). In order to succeed on a claim for accounting malpractice, a plaintiff must demonstrate a departure from accepted standards of practice and that the departure was a proximate cause of injury (see Alskom Realty, LLC v. Baranik, 189 AD3d 745, 747; Kristina Denise Enters., Inc. v. Arnold, 41 AD3d 788, 789). “Injury is an element of the cause of action” (see Alskom Realty, LLC v. Baranik, 189 AD3d at 747). Here, the plaintiffs failed to adequately plead a cause of action alleging accounting malpractice. The plaintiffs failed to sufficiently allege that the defendants departed from accepted standards of practice and that the defendants proximately caused the plaintiffs’ injuries (see Kristina Denise Enters., Inc. v. Arnold, 41 AD3d at 789; see also Ecker v. Zwaik & Bernstein, 240 AD2d 360, 362). Furthermore, the cause of action alleging breach of contract was duplicative of the accounting malpractice cause of action, as it arose from the same operative facts and did not allege distinct damages (see Schwartz v. Leaf, Salzman, Manganelli, Pfiel, & Tendler, LLP, 123 AD3d 901, 902; Bruno v. Trus Joist a Weyerhaeuser Bus., 87 AD3d 670, 674). Accordingly, the Supreme Court should have granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging accounting malpractice and breach of contract. The parties’ remaining contentions either are without merit, are not properly before this Court, or need not be reached in light of our determination. LASALLE, P.J., BARROS, VOUTSINAS and VENTURA, JJ., concur. By Duffy, J.P.; Ford, Dowling, Ventura, JJ. DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC., res, v. BIBI GOPAUL, app, ET AL., def — (Index No. 722933/21) Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellant. Robertson, Anschutz, Schneid, Crane & Partners PLLC, Westbury, NY (Joseph F. Battista of counsel), for respondent. In an action to foreclose a mortgage, the defendant Bibi Gopaul appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered February 11, 2020. The order and judgment of foreclosure and sale, inter alia, granted that branch of the plaintiff’s motion which was to confirm a referee’s report, in effect, denied those branches of the defendant Bibi Gopaul’s cross-motion which were pursuant to CPLR 5015(a)(3) to vacate an order of the same court (Allan B. Weiss, J.) entered July 25, 2018, granting the plaintiff’s unopposed motion, among other things, for leave to enter a default judgment against that defendant and to appoint a referee to compute the amount owed to the plaintiff, and, in effect, to reject the referee’s report, and directed the sale of the subject property. ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs. In January 2007, the plaintiff commenced this action to foreclose a mortgage against the defendant Bibi Gopaul (hereinafter the defendant), among others. In an order entered July 25, 2018, the Supreme Court granted the plaintiff’s unopposed motion, inter alia, for leave to enter a default judgment against the defendant and to appoint a referee to compute the amount owed to the plaintiff. In August 2018, the referee issued a report. In October 2019, the plaintiff moved, among other things, to confirm the referee’s report and for a judgment of foreclosure and sale. In December 2019, the defendant cross-moved, inter alia, pursuant to CPLR 5015(a)(3) to vacate the order entered July 25, 2018, and, in effect, to reject the referee’s report. In an order and judgment of foreclosure and sale entered February 11, 2020, the court, among other things, granted the plaintiff’s motion, in effect, denied those branches of the defendant’s cross-motion, and directed the sale of the subject property. The defendant’s contention that the plaintiff misrepresented the procedural history of the action in order to obtain the order entered July 25, 2018, amounts to an allegation of intrinsic fraud (see Bank of Am., N.A. v. Anderson, 216 AD3d 890, 891). A defendant seeking to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud must establish a reasonable excuse for the default and a potentially meritorious defense to the action (see Bank of Am., N.A. v. Anderson, 216 AD3d at 891). Here, while the defendant asserted that she is not in default in the action, she did not offer a reasonable excuse for her failure to oppose the plaintiff’s motion, inter alia, for leave to enter a default judgment against her and to appoint a referee to compute the amount owed to the plaintiff. Since the defendant failed to offer a reasonable excuse for her failure to oppose that motion, the Supreme Court properly denied that branch of her cross-motion which was pursuant to CPLR 5015(a)(3) to vacate the order entered July 25, 2018 (see Wilmington Trust, N.A. v. Mahone, 207 AD3d 600, 602; HSBC Bank USA v. Lozovskiy, 206 AD3d 701, 702). Without a reasonable excuse, it was unnecessary to consider whether she presented a potentially meritorious defense (see Wilmington Trust, N.A. v. Mahone, 207 AD3d at 602; HSBC Bank USA v. Lozovskiy, 206 AD3d at 702). CPLR 4403 requires a motion to reject a referee’s report to be made within 15 days of the filing of the report, while 22 NYCRR 202.44(a) requires the defendant to move to confirm or reject the report within 30 days after notice of the filing of the report (see HSBC Bank USA, N.A. v. Sewell, 198 AD3d 953, 955). Here, as the plaintiff correctly contends, the referee’s report was filed on October 18, 2019, when the plaintiff moved, inter alia, to confirm the referee’s report. The defendant’s cross-motion was filed on December 11, 2019, more than 30 days later. Therefore, that branch of the defendant’s cross-motion which was, in effect, to reject the referee’s report was untimely (see id.). Accordingly, the Supreme Court properly granted that branch of the plaintiff’s motion which was to confirm the referee’s report and, in effect, denied those branches of the defendant’s cross-motion which were pursuant to CPLR 5015(a)(3) to vacate the order entered July 25, 2018, and, in effect, to reject the referee’s report. DUFFY, J.P., FORD, DOWLING and VENTURA, JJ., concur. By Connolly, J.P.; Iannacci, Genovesi, Love, JJ. TANVEER GHAZALA, ET AL., res, v. SHORE HAVEN APARTMENT DEL, LLC, ET AL., app — (Index No. 503433/16) Dorf & Nelson LLP (Mauro Lilling Naparty LLP, Woodbury, NY [Seth M. Weinberg and Ashley N. Guarino], of counsel), for appellants. Subin Associates, LLP (Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Jillian Rosen], of counsel), for respondents. In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Loren Baily-Schiffman, J.), dated August 13, 2020. The order granted the plaintiffs’ motion to sever their respective damages claims for purposes of trial and denied the defendants’ motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the plaintiffs and against the defendants on the issue of liability in the interest of justice and for a new trial on the issue of liability. ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying the defendants’ motion pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the plaintiffs and against the defendants on the issue of liability in the interest of justice and for a new trial on the issue of liability, and substituting therefor a provision granting that motion; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of liability, and thereafter for separate trials on the issue of damages, if warranted. The plaintiffs allegedly were injured when the ceiling of a residential apartment collapsed on them. The plaintiffs commenced the instant action to recover damages for personal injuries against the defendants, Shore Haven Apartment Del, LLC, which owned the building in which the apartment was located, and Apartments Management Association LLC, which managed the building. The matter proceeded to a jury trial, during which, the plaintiffs’ application to preclude the defendants’ expert from testifying, or alternatively, for a hearing pursuant to Frye v. United States (293 F 1013, 1013-1014 [DC Cir]) was granted to the extent that the expert was precluded from testifying. The jury thereafter returned a verdict in favor of the plaintiffs on the issue of liability. Following the verdict, the plaintiffs moved for severance of their respective damages claims for purposes of trial. The defendants moved pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability in the interest of justice and for a new trial on the issue of liability. By order dated August 13, 2020, the Supreme Court granted the plaintiffs’ motion and denied the defendants’ motion. The defendants appeal. “Pursuant to CPLR 4404(a), a trial court has the discretion to order a new trial in the interest of justice” (Duman v. Scharf, 186 AD3d 672, 674). “A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence,” among other things (Schuster v. Sourour, 207 AD3d 491, 493-494, quoting Duman v. Scharf, 186 AD3d at 674). The defendants contend that they should have been granted a new trial based upon the Supreme Court’s improper preclusion of their expert witness, Andrew Yarmus. “[E]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” (De Long v. County of Erie, 60 NY2d 296, 307; see Matott v. Ward, 48 NY2d 455, 459). The expert must possess “the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” (Matott v. Ward, 48 NY2d at 459). “The expert’s opinion, taken as a whole, must also reflect an acceptable level of certainty in order to be admissible” (Espinal v. Jamaica Hosp. Med. Ctr., 71 AD3d 723, 724; see Matott v. Ward, 48 NY2d at 460). Here, the defendants’ CPLR 3101(d) disclosure indicated that Yarmus, a professional engineer with experience in construction management and building and safety code compliance, would testify, inter alia, as to the materials and manner of construction of the ceiling at issue, as well as the manner in which ceilings so constructed may detach and collapse, allegedly, without a defect that is detectable so as to give notice of a dangerous condition. Contrary to the plaintiffs’ contention, Yarmus’s proposed testimony was neither so conclusory or speculative, nor without basis in the record, as to render it inadmissible (see Espinal v. Jamaica Hosp. Med. Ctr., 71 AD3d at 724; Erbstein v. Savasatit, 274 AD2d 445, 446; see also Owens v. Ascencio, 210 AD3d 686, 688). Rather, any purported shortcomings in the proposed testimony went “to the weight to be given his testimony, not its admissibility” and could appropriately be explored on cross-examination (Martell v. Dorchester Apt. Corp., 208 AD3d 1183, 1185; see Espinal v. Jamaica Hosp. Med. Ctr., 71 AD3d at 724). As to the plaintiffs’ request for a Frye hearing with respect to Yarmus’s proposed testimony, “[t]he long-recognized rule of Frye…is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has ‘gained general acceptance’ in its specified field” (People v. Wesley, 83 NY2d 417, 422, quoting Frye v. United States (293 F at 1014). An expert opinion based on personal training and experience is not subject to a Frye analysis (see Doviak v. Finkelstein & Partners, LLP, 137 AD3d 843, 847). Since, in the present case, Yarmus’s proposed testimony was based upon his personal training and experience, a Frye hearing was not warranted (see id. at 847). Accordingly, while the Supreme Court properly declined to order a Frye hearing, it improvidently exercised its discretion in precluding the defendants’ expert from testifying. We conclude that a new trial on the issue of liability is required in the interest of justice, as preclusion of the defendants’ expert “prejudiced [their] ability to present a full defense” (Bergamaschi v. Gargano, 293 AD2d 695, 696; see Owens v. Ascencio, 210 AD3d at 688; Schuster v. Sourour, 207 AD3d at 494). However, we further conclude that the Supreme Court’s exercise of discretion to grant the plaintiffs’ motion for a severance of their respective damages claims for purposes of trial was not improvident. In light of the plaintiffs’ differing medical histories, injuries, and treatment, “there is not such an identity of factual and legal questions as to render a single trial of [their respective damages claims] appropriate in the interest of judicial economy,” and a single trial could, under the circumstances of this case, lead to juror confusion (Weiss v. Meiselman, 155 AD2d 531, 532; see Gittino v. LCA Vision, 301 AD2d 847, 848). Thus, upon any new finding of liability, the plaintiffs will each be entitled to a separate trial of their respective damages claims. In light of our determination, we need not reach the parties’ remaining contentions. CONNOLLY, J.P., IANNACCI, GENOVESI and LOVE, JJ., concur. By Nelson, J.P.; Christopher, Genovesi, Ventura, JJ. 410 LEFFERTS, LLC, app, v. 408 LEFFERTS, LLC, ET AL., def, VIT, LLC, ET AL., res — (Index No. 502322/21) Tsyngauz & Associates, P.C., New York, NY (Ryan C. Banich of counsel), for appellant. The Law Offices of Joshua Bronstein & Associates, PLLC, Port Washington, NY, for respondents. In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated March 30, 2022. The order, insofar as appealed from, denied that branch of the plaintiff’s motion which was for summary judgment on the cause of action alleging breach of contract insofar as asserted against the defendants VIT, LLC, and Vladimir Ilyayev. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff’s motion which was for summary judgment on the cause of action alleging breach of contract insofar as asserted against the defendants VIT, LLC, and Vladimir Ilyayev is granted. The plaintiff entered into a contract to purchase real property from, among others, the defendants VIT, LLC, and Vladimir Ilyayev (hereinafter together the sellers) for the sum of $8 million. The plaintiff subsequently commenced this action, inter alia, to recover damages for the sellers’ alleged breach of a provision in the contract by which the sellers agreed to pay all fines associated with any open Environmental Control Board and Department of Buildings violations at closing or within 12 months thereafter. The plaintiff moved, among other things, for summary judgment on the cause of action alleging breach of contract insofar as asserted against the sellers. The sellers, inter alia, opposed the motion. The Supreme Court, among other things, denied that branch of the plaintiff’s motion. The plaintiff appeals. “The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach” (R. Vig Props., LLC v. Rahimzada, 213 AD3d 871, 873 [internal quotation marks omitted]). “[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms” (W.W.W. Assoc. v. Giancontieri, 77 NY2d 157, 162). “The rule has even greater force in the context of real property transactions, where commercial certainty is a paramount concern, and where, as here, the instrument was negotiated between sophisticated, counseled business people negotiating at arm’s length” (Matter of Wallace v. 600 Partners Co., 86 NY2d 543, 548 [citation and internal quotation marks omitted]). Here, contrary to the Supreme Court’s determination, the plaintiff established its prima facie entitlement to judgment as a matter of law on the cause of action alleging breach of contract insofar as asserted against the sellers, as there is no dispute that the sellers failed to pay the subject fines by the agreed-upon date. The sellers failed to raise a triable issue of fact in response. The contract provision stating that the sellers “will not be responsible for any work needed to clear the violations of record” and the contract provisions suggesting that the plaintiff was intending to perform construction at the properties do not absolve the sellers from their obligation to pay the fines associated with the open violations (see Kel Kim Corp. v. Central Mkts., 70 NY2d 900, 902). “[C]ourts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing” (Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 NY3d 470, 475 [internal quotation marks omitted]). Furthermore, as there is no ambiguity in the subject contract provision here (see Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 13 NY3d 398, 404; Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 NY3d at 475), the sellers’ attempt to introduce extrinsic evidence to alter or add to the terms of the contract is prohibited by the parol evidence rule (see Schron v. Troutman Sanders LLP, 20 NY3d 430, 436), as well as by the contract’s merger clause (see Matter of Primex Intl. Corp. v. Wal-Mart Stores, 89 NY2d 594, 599). Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was for summary judgment on the cause of action alleging breach of contract insofar as asserted against the sellers. BRATHWAITE NELSON, J.P., CHRISTOPHER, GENOVESI and VENTURA, JJ., concur. By Duffy, J.P.; Ford, Warhit, Love, JJ. UNION MUTUAL FIRE INSURANCE COMPANY, app-res, v. 831 QUINCY STREET, LLC, res, JOHN CONTRERAS, res-app, ET AL., def — (Index No. 611053/18) Hurwitz & Fine, P.C., Buffalo, NY (Mirna M. Santiago and Brian D. Barnas of counsel), for appellant-respondent. Shayne, Dachs, New York, NY (Jonathan A. Dachs of counsel), for respondent-appellant. Goldberger & Dubin, P.C., New York, NY (Stacey Van Malden of counsel), for respondent. In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant 831 Quincy Street, LLC, in an underlying action entitled Contreras v. 831 Quincy Street, LLC, pending in the Supreme Court, Kings County, under Index No. 504105/18, the plaintiff appeals, and the defendant John Contreras cross-appeals, from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered April 20, 2020. The order, insofar as appealed from, denied that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against the defendants 831 Quincy Street, LLC, and John Contreras declaring that the plaintiff is not obligated to defend or indemnify any defendant in the underlying action. The order, insofar as cross-appealed from, denied that branch of the cross-motion of the defendant John Contreras which was for summary judgment declaring that the plaintiff is obligated to defend and indemnify the defendant 831 Quincy Street, LLC, in the underlying action. ORDERED that the order is affirmed insofar as appealed and cross-appealed from, with costs to the defendant 831 Quincy Street, LLC, payable by the plaintiff. The plaintiff, Union Mutual Fire Insurance Company, commenced this action, inter alia, for a judgment declaring that it is not obligated to defend or indemnify its insured, the defendant 831 Quincy Street, LLC (hereinafter 831 Quincy), in an underlying personal injury action entitled Contreras v. 831 Quincy Street, LLC, pending in the Supreme Court, Kings County, under Index No. 504105/18 (hereinafter the underlying action). The plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against 831 Quincy and the defendant John Contreras declaring that it is not obligated to defend or indemnify any defendant in the underlying action. As is relevant to the appeal and cross-appeal, Contreras, the plaintiff in the underlying action, cross-moved, inter alia, for summary judgment declaring that the plaintiff is obligated to defend and indemnify 831 Quincy in the underlying action on the ground, among others, that the plaintiff failed to timely disclaim or deny coverage. In an order entered April 20, 2020, insofar as appealed from, the Supreme Court denied that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against 831 Quincy and Contreras declaring that the plaintiff is not obligated to defend or indemnify any defendant in the underlying action, and, insofar as cross-appealed from, the court denied that branch of the cross-motion of Contreras which was for summary judgment declaring that the plaintiff is obligated to defend and indemnify 831 Quincy in the underlying action. Insurance Law §3420(d)(2) requires an insurer to provide its insured and any other claimant with written notice of its disclaimer or denial of coverage as soon as is reasonably possible when a claim falls within the coverage terms but is denied based on a policy exclusion (see id.; QBE Ins. Corp. v. Jinx-Proof Inc., 22 NY3d 1105, 1109). An effective disclaimer notice must detail with “‘a high degree of specificity…the ground or grounds on which the disclaimer is predicated’” (Ability Transmission, Inc. v. John’s Transmission, Inc., 150 AD3d 1056, 1057, quoting General Acc. Ins. Group v. Cirucci, 46 NY2d 862, 864). Thus, any ground for disclaimer that is not specifically asserted in its notice is waived (see Ability Transmission, Inc. v. John’s Transmission, Inc., 150 AD3d at 1057; Adames v. Nationwide Mut. Fire Ins. Co., 55 AD3d 513, 515). The disclaimer notice must be unequivocal and unambiguous (see Norfolk & Dedham Mut. Fire Ins. Co. v. Petrizzi, 121 AD2d 276, 277). Here, the Supreme Court properly denied that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against 831 Quincy and Contreras declaring that it is not obligated to defend or indemnify any defendant in the underlying action, as the plaintiff failed to establish, prima facie, that no triable issues of fact exist as to whether it timely disclaimed or denied coverage (see 233 E. 17th St., LLC v. L.G.B. Dev., Inc., 78 AD3d 930, 932; Pawley Interior Contr., Inc. v. Harleysville Ins. Cos., 11 AD3d 595, 596). Since the plaintiff failed to make its prima facie showing, that branch of its motion was properly denied without regard to the sufficiency of the papers submitted in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). The Supreme Court also properly denied that branch of Contreras’s cross-motion which was for summary judgment declaring that the plaintiff is obligated to defend and indemnify 831 Quincy in the underlying action, as Contreras also failed to establish, prima facie, that there are no triable issues of fact as to whether the plaintiff timely disclaimed or denied coverage to 831 Quincy (see Fireman’s Fund Ins. Co. v. Farrell, 57 AD3d 721, 723). DUFFY, J.P., FORD, WARHIT and LOVE, JJ., concur. By Duffy, J.P.; Ford, Dowling, Ventura, JJ. SMG AUTOMOTIVE HOLDINGS, LLC, plf, v. KINGS AUTOMOTIVE HOLDINGS, LLC, DOING BUSINESS AS KINGS COUNTY CHRYSLER, DODGE, JEEP & RAM, res, ET AL., def; ZACHARY SCHWEBEL, third-party def-app, ET AL., third-party def — (Index No. 502949/21) Morrison Cohen LLP, New York, NY (Christopher Milito and Joaquin Ezcurra of counsel), for third-party defendant-appellant. In an interpleader action to determine entitlement to the proceeds of a promissory note, and a third-party action to recover on a personal guaranty, the third-party defendant Zachary Schwebel appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated January 31, 2022. The order denied the motion of the third-party defendant Zachary Schwebel pursuant to CPLR 3211(a) to dismiss the third-party complaint insofar as asserted against him. ORDERED that the order is reversed, on the law, with costs, and the motion of the third-party defendant Zachary Schwebel pursuant to CPLR 3211(a) to dismiss the third-party complaint insofar as asserted against him is granted. On February 7, 2017, the plaintiff, SMG Automotive Holdings, LLC (hereinafter Automotive Holdings), by its operating manager, the third-party defendant Zachary Schwebel, executed a promissory note in favor of the defendant third-party plaintiff, Kings Automotive Holdings, LLC, doing business as Kings County Chrysler, Dodge, Jeep & Ram (hereinafter Kings), in the amount of $2,500,000. The maturity date on the promissory note was February 6, 2021. On the same date that he signed the note on behalf of Automotive Holdings, Schwebel executed a guaranty in which he personally promised “full satisfaction of payment and performance of all obligations” owed by nonparty SMG Auto Enterprises, LLC (hereinafter Auto Enterprises), to Kings under the note. Automotive Holdings thereafter failed to pay the amount due under the promissory note and commenced this interpleader action to determine the rights and claims of the various parties with respect thereto. Kings then commenced a third-party action against Schwebel, among others, seeking to hold him personally liable under the guaranty and, inter alia, recover the sum of $2,404,600 pursuant to the promissory note. Schwebel moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the third-party complaint insofar as asserted against him. In an order dated January 31, 2022, the Supreme Court denied Schwebel’s motion on the ground that there was “sufficient evidence” to establish that “the parties were clearly aware [that] the guaranty referred to the correct entity,” Automotive Holdings, “despite the misnomer” in referencing Auto Enterprises. Schwebel appeals. “A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law. In order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable” (Lam v. Weiss, 219 AD3d 713, 716 [citation and internal quotation marks omitted]). “To state a cause of action on a guaranty, a plaintiff must allege an underlying obligation, a guaranty, and the prime obligor’s default in payment on the underlying obligation” (Green 333 Corp. v. RNL Life Science, Inc., 186 AD3d 1334, 1335). In other words, a plaintiff may hold “a guarantor…liable upon the noncompliance of the principal obligor” (Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., “Rabobank Intl.,” N.Y. Branch v. Navarro, 25 NY3d 485, 495). “[A] guaranty is a contract, and in interpreting it we look first to the words the parties used. A guaranty must be read in the context of the loan agreement,” particularly when “executed contemporaneously” (G3-Purves St., LLC v. Thomson Purves, LLC, 101 AD3d 37, 40 [citation and internal quotation marks omitted]). Although a guaranty is “subject to the ordinary principles of contract construction” (Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., “Rabobank Intl.,” N.Y. Branch v. Navarro, 25 NY3d at 492 [internal quotation marks omitted]), “[t]he terms of a guaranty are to be strictly construed, and a guarantor should not be found liable beyond the express terms of the guaranty” (Solco Plumbing Supply, Inc. v. Hart, 123 AD3d 798, 800 [citation omitted]). “[A] guaranty is to be interpreted in the strictest manner, particularly in favor of a private guarantor” (Lo-Ho LLC v. Batista, 62 AD3d 558, 559 [citation and internal quotation marks omitted]; see Chicago Tit. Ins. Co. v. Brookwood Tit. Agency, LLC, 179 AD3d 887, 888). Moreover, “[a] guarantor’s obligation cannot be altered without its consent” (White Rose Food v. Saleh, 99 NY2d 589, 591). Here, the documentary evidence submitted by Schwebel in support of his motion utterly refuted the factual allegations of the third-party complaint insofar as asserted against him. The guaranty itself refuted the allegations that Schwebel agreed to be personally liable to Kings for the debt owed by Automotive Holdings, since it provided that he agreed to be liable for any default by Auto Enterprises, not Automotive Holdings. The third-party complaint did not allege, for example, that Auto Enterprises was the alter ego or adopted name of Automotive Holdings (see 47 E. 34th St. [NY] L.P. v. BridgeStreet Worldwide, Inc., 219 AD3d 1196, 1197, 1204; Civilized People, Inc. v. Milk St. Café, Inc., 129 AD3d 761, 762), or that there was somehow an ambiguity as to whose obligations Schwebel agreed to guarantee (see Wider Consol., Inc. v. Tony Melillo, LLC, 107 AD3d 883, 884-885). Contrary to Kings’s contention raised in its opposition papers, it failed to show that the guaranty “clearly” contained a misnomer, an assertion that was not set forth in its third-party complaint. Moreover, the “guaranty must be read in the context of the loan agreement” (G3-Purves St., LLC v. Thomson Purves, LLC, 101 AD3d at 40). The promissory note expressly mentioned Auto Enterprises yet delineated Automotive Holdings — identified as “the undersigned” — as the promisor, indicating that the parties understood that Auto Enterprises and Automotive Holdings were two distinct entities. Kings also failed to submit any affidavits or other evidence in opposition to the motion that might have “demonstrated that [Automotive Holdings] was really intended by the parties to be the corporate entity described in the [guaranty],” not Auto Enterprises (Skyline Enters. of N.Y. Corp. v. Amuram Realty Co., 288 AD2d 292, 293 [internal quotation marks omitted]; see Humble Oil & Ref. Co. v. Jaybert Esso Serv. Sta., 30 AD2d 952, 952), instead submitting only the affirmation of an attorney (see Lehlev Betar, LLC v. Soto Dev. Group, Inc., 131 AD3d 513, 514; Harris v. Barbera, 96 AD3d 904, 905). The parties’ pleadings also revealed that they entered into other agreements relating to this transaction, not contained in the record, yet Kings did not submit any such materials in opposition to Schwebel’s motion. For the same reasons, dismissal of the third-party complaint insofar as asserted against Schwebel pursuant to CPLR 3211(a)(7) was also warranted (see Angeli v. Barket, 211 AD3d 896, 897-898; Agai v. Liberty Mut. Agency Corp., 118 AD3d 830, 831-832). Accordingly, the Supreme Court should have granted Schwebel’s motion pursuant to CPLR 3211(a) to dismiss the third-party complaint insofar as asserted against him. DUFFY, J.P., FORD, DOWLING and VENTURA, JJ., concur. By Lasalle, P.J.; Chambers, Voutsinas, Taylor, JJ. EMMANUEL SMITH CRAIG, app, v. FASTEX LOGISTICS TRANSPORTATION, LLC, ET AL., res — (Index No. 706268/20) Shalom Law, PLLC, Forest Hills, NY (Jonathan Shalom and Emanuel Kataev of counsel), for appellant. Lawrence B. Lame, Rego Park, NY, for respondents. In an action, inter alia, pursuant to Labor Law §193 to recover wages wrongfully withheld, the plaintiff appeals from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered May 10, 2022. The order denied the plaintiff’s motion pursuant to CPLR 3211(a)(7) to dismiss the defendants’ counterclaims. ORDERED that the order is reversed, on the law, with costs, and the plaintiff’s motion pursuant to CPLR 3211(a)(7) to dismiss the defendants’ counterclaims is granted. In or around July 2019, the plaintiff began working for the defendants. Among other duties, the plaintiff drove a truck for the defendants. In January 2020, the truck was damaged, allegedly due to the plaintiff’s negligent operation thereof. The plaintiff alleges that, following this incident, the defendants reduced the amount of wages that they paid him in an attempt to recoup an amount equal to the insurance deductible and lost profits related to the damaged truck. In June 2020, the plaintiff commenced this action, alleging, inter alia, violations of the Labor Law relating to the payment of regular wages. The defendants interposed an answer in January 2022. In the answer, the defendants asserted counterclaims to recover damages for the plaintiff’s alleged negligent operation of the truck and his alleged breach of an agreement to pay the defendants an amount equal to the insurance deductible and lost profits related to the damaged truck. The plaintiff moved pursuant to CPLR 3211(a)(7) to dismiss the defendants’ counterclaims. By order entered May 10, 2022, the Supreme Court denied the motion. The plaintiff appeals. Labor Law §193 “prohibits an employer from making any deduction from an employee’s wages unless permitted by law or authorized by the employee for certain purposes” (Costello v. Curan & Ahlers, LLP, 224 AD3d 732, 734; see Labor Law §193[1][a]-[d]). To allow an employer to recover the return of paid wages based upon an employee’s alleged lack of performance “would be permitting [that employer] to do indirectly and retroactively that which the law specifically prohibits it from doing directly” (Guepet v. International TAO Sys., 110 Misc 2d 940, 941 [Sup Ct, Nassau County]). This principle applies equally whether the cause of action sounds in negligence or in contract, as an employee may not waive the protections of Labor Law §193 (see id. §663[1]; see also Mark v. Gawker Media LLC, 2016 WL 1271064, *6, 2016 US Dist LEXIS 41817, *18-22 [SD NY, No. 13-cv-4347 (AJN)]). Here, the defendants’ counterclaims are explicit attempts to recoup costs for their business allegedly arising out of the plaintiff’s negligence or poor performance. Because such causes of action are barred by the Labor Law, the Supreme Court erred in denying the plaintiff’s motion pursuant to CPLR 3211(a)(7) to dismiss the defendants’ counterclaims. In light of the foregoing, the parties’ remaining contentions need not be reached. LASALLE, P.J., CHAMBERS, VOUTSINAS and TAYLOR, JJ., concur. By Connolly, J.P.; Maltese, Dowling, Landicino, JJ. STEVE A. FARUQUE, app, v. AMANDA FARUQUE, res — (Index No. 34010/17) Ressler & Associates, White Plains, NY (Jessica H. Ressler of counsel), for appellant. Eisenberg Yellen, LLP, New City, NY (Amy M. Eisenberg of counsel), for respondent. In a matrimonial action in which the parties were divorced by judgment dated July 26, 2018, the plaintiff appeals from an order of the Supreme Court, Rockland County (Sherri L. Eisenpress, J.), dated December 1, 2021. The order, insofar as appealed from, in effect, granted, without a hearing, that branch of the defendant’s motion which was to increase the amount of the plaintiff’s monthly payment of certain child care expenses through the Support Collections Unit as set forth in the parties’ stipulation of settlement dated March 13, 2018, and directed the plaintiff to pay the sum of $1,375 per month through the Support Collections Unit. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Rockland County, for a hearing and a new determination thereafter of that branch of the defendant’s motion which was to increase the amount of the plaintiff’s monthly payment of certain child care expenses through the Support Collections Unit as set forth in the parties’ stipulation of settlement dated March 13, 2018. The parties were married in October 2013 and have one child in common. In 2017, the plaintiff commenced an action for a divorce and ancillary relief, and subsequently the parties entered into a stipulation of settlement, which required the plaintiff to pay the sum of $1,282.53 per month through the Support Collections Unit as part of his obligation to pay 55% of certain child care expenses. The stipulation of settlement was incorporated but not merged into a judgment of divorce dated July 26, 2018. In June 2021, the defendant moved, inter alia, to increase the amount of the plaintiff’s monthly payment of certain child care expenses through the Support Collections Unit as set forth in the stipulation of settlement. By order dated December 1, 2021, the Supreme Court, among other things, in effect, granted, without a hearing, that branch of the defendant’s motion and directed the plaintiff to pay the sum of $1,375 per month through the Support Collections Unit. The plaintiff appeals. The Supreme Court erred by, in effect, granting that branch of the defendant’s motion which was to increase the amount of the plaintiff’s monthly payment of certain child care expenses through the Support Collections Unit without holding a hearing. The parties’ submissions contained conflicting contentions regarding, inter alia, the schedule of the child care provider and the cost thereof, which warranted a hearing (see Matter of Malloy v. O’Gorman, 139 AD3d 733, 735; Anjam v. Anjam, 191 AD2d 531, 532; Rogers v. Rogers, 151 AD2d 738, 738). The court also failed to set forth any findings or a sufficient calculation of child care expenses on the record. Accordingly, we remit the matter to the Supreme Court, Rockland County, for a hearing and a new determination thereafter of that branch of the defendant’s motion which was to increase the amount of the plaintiff’s monthly payment of certain child care expenses through the Support Collections Unit as set forth in the stipulation of settlement. The plaintiff’s remaining contentions need not be reached in light of our determination. CONNOLLY, J.P., MALTESE, DOWLING and LANDICINO, JJ., concur. By Nelson, J.P.; Maltese, Christopher, Landicino, JJ. KIMBERLY HOFFMAN, app, v. DEAN C LTD PARTNERSHIP, ET AL., res — (Index No. 9717/19) Sobo & Sobo, LLP, Middletown, NY (Mark P. Cambareri of counsel), for appellant. Stonberg, Hickman & Pavloff, LLP, New York, NY (Robert Radman of counsel), for respondents. In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (James L. Hyer, J.), dated November 16, 2022. The order granted the defendants’ motion for summary judgment dismissing the complaint and denied, as academic, the plaintiff’s cross-motion pursuant to CPLR 3126, inter alia, to strike the defendants’ answer or, in the alternative, to resolve certain issues in favor of the plaintiff on the ground of spoliation of evidence. ORDERED that the order is reversed, on the law, with costs, the defendants’ motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Supreme Court, Orange County, for a determination on the merits of the plaintiff’s cross-motion pursuant to CPLR 3126, inter alia, to strike the defendants’ answer or, in the alternative, to resolve certain issues in favor of the plaintiff on the ground of spoliation of evidence. The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained when she slipped and fell on a purported wet floor of an aisle that had recently been mopped by an employee at a fast food restaurant owned and operated by the defendants. The defendants moved for summary judgment dismissing the complaint, contending that the condition that caused the plaintiff to slip and fall was open and obvious and not inherently dangerous, and that, in any event, they adequately warned the plaintiff of a potentially hazardous condition. The plaintiff opposed the motion and cross-moved pursuant to CPLR 3126, inter alia, to strike the defendants’ answer or, in the alternative, to resolve certain issues in favor of the plaintiff on the ground of spoliation of certain surveillance video maintained by the defendants. The Supreme Court granted the defendants’ motion and denied the plaintiff’s cross-motion as academic. The plaintiff appeals. With respect to the defendants’ motion, while an owner or possessor of real property has a duty to maintain that property in a reasonably safe condition (see Basso v. Miller, 40 NY2d 233, 241; Blackman v. Red Lobster Hospitality, LLC, 222 AD3d 825, 826), there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous (see Cosme v. New York City Dept. of Educ., 221 AD3d 857, 858; Cupo v. Karfunkel, 1 AD3d 48, 52). Here, the defendants failed to establish, prima facie, that the condition of the floor that caused the plaintiff to fall was open and obvious and not inherently dangerous (see Aleman v. 760 8th Ave. Rest., Inc., 187 AD3d 1106, 1107; Rivero v. Spillane Enters., Corp., 95 AD3d 984, 985). Surveillance video footage submitted by the defendants reveals that an employee had mopped the floor of the aisle shortly before the plaintiff fell and that the dangerous condition created by the dampness on the floor in that area was not plainly visible. At the time the plaintiff fell, the employee was mopping a separate area behind a booth, not the area of the aisle where the plaintiff fell. The plaintiff testified at her deposition that, prior to her fall, she did not observe the employee mopping the floor or any water on the floor. Moreover, contrary to the defendants’ contention, they also failed to eliminate all triable issues of fact as to whether they provided adequate warning of a potentially hazardous condition (see Ramsey v. Temco Serv. Indus., Inc., 179 AD3d 726, 728; Bruce v. Edgewater Indus. Park, LLC, 169 AD3d 753, 754; cf. Rivero v. Spillane Enters., Corp., 95 AD3d at 985). The surveillance video shows one “wet floor” sign located in an area of the restaurant that was a significant distance from the area where the plaintiff fell. While the employee testified at her deposition that she placed a “wet floor” sign in the area where the plaintiff fell, the plaintiff testified that she did not see a sign in the area where she fell, and the surveillance video does not clearly depict a sign in that area. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied their motion for summary judgment dismissing the complaint without regard to the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). In light of the foregoing, the plaintiff’s motion pursuant to CPLR 3126, inter alia, to strike the defendants’ answer or, in the alternative, to resolve certain issues in favor of the plaintiff on the ground of spoliation of evidence is no longer academic, and we remit the matter to the Supreme Court, Orange County, for consideration and determination of that cross-motion in the first instance (see Coizza v. 164-50 Crossbay Realty Corp., 37 AD3d 640, 643). BRATHWAITE NELSON, J.P., MALTESE, CHRISTOPHER and LANDICINO, JJ., concur. By Nelson, J.P.; Maltese, Wan, Landicino, JJ. SELMA AHMED, app, v. FULTON NOSTRAND, LLC, ET AL., res, ET AL., def — (Index No. 506998/19) Marshall & Inwood (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac, Joshua Block, and Kelly Breslauer], of counsel), for appellant. McMahon, Martine & Gallagher, LLP, Brooklyn, NY (Patrick W. Brophy, Thomas H. Bundock, and Gene Novak 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 (Robin K. Sheares, J.), dated March 10, 2022. The order granted the motion of the defendants Fulton Nostrand, LLC, and Fresh Health Food Emporium, Inc., for summary judgment dismissing the complaint insofar as asserted against them. ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Fulton Nostrand, LLC, and Fresh Health Food Emporium, Inc., for summary judgment dismissing the complaint insofar as asserted against them is denied. On December 15, 2017, at approximately 5:30 p.m., the plaintiff allegedly slipped and fell on ice on a sidewalk along Fulton Street in Brooklyn. Thereafter, the plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained as a result of the fall. The defendants Fulton Nostrand, LLC, and Fresh Health Food Emporium, Inc. (hereinafter together the defendants), moved for summary judgment dismissing the complaint insofar as asserted against them, arguing that there was a storm in progress when the plaintiff slipped and fell. The Supreme Court granted the defendants’ motion. The plaintiff appeals. “Under the so-called ‘storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” (Marchese v. Skenderi, 51 AD3d 642, 642). Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. In support of their motion, the defendants submitted, inter alia, climatological data records that were not certified and a transcript of the deposition testimony of the plaintiff, which failed to eliminate triable issues of fact as to whether a storm was in progress at the time of the accident and whether the plaintiff slipped and fell on a preexisting condition (see Cassino-Sharp v. Whispering Hills Home Owners Assn., Inc., 219 AD3d 457, 458-459; Johnson v. Pawling Cent. Sch. Dist., 196 AD3d 686, 687-688; cf. Fitzsimons v. North Shore Univ. Hosp., 205 AD3d 684). Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them, without regard to the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). BRATHWAITE NELSON, J.P., MALTESE, WAN and LANDICINO, JJ., concur. By Connolly, J.P.; Christopher, Genovesi, Warhit, JJ. THE PEOPLE, ETC., res, v. DARRELL CANTIE, app — (Index No. 7313/14) Mark Diamond, Pound Ridge, NY, for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Michael Bierce, and Daniel Berman of counsel), for respondent. Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent Del Giudice, J.), rendered April 5, 2017, as amended April 10, 2017, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence. ORDERED that the judgment, as amended, is affirmed. The defendant was charged in an indictment with, among other crimes, attempted assault in the first degree and assault in the second degree relating to Paul Gilbert (counts 1 and 3, respectively). By order dated February 2, 2015, the Supreme Court, inter alia, dismissed count 3 of the indictment, with leave given to the People to re-present that count to a new grand jury. Although that count was never re-presented, the defendant pleaded guilty to assault in the second degree as purportedly charged in count 3 of the indictment and was sentenced to a determinate term of imprisonment of 2 years followed by a period of postrelease supervision of 1½ years. “‘[A] guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings’” (People v. Guerrero, 28 NY3d 110, 116, quoting People v. Konieczny, 2 NY3d 569, 572 [internal quotation marks omitted]). “The provisions of CPL article 220 govern the acceptance of guilty pleas under indictments and, in some respects, are jurisdictional in nature because of constitutional implications” (People v. Johnson, 89 NY2d 905, 907; see NY Const, art I, §6). “Section 220.10 provides that ‘[t]he only kinds of pleas which may be entered to an indictment are those specified in this section’” (People v. Johnson, 89 NY2d at 907, quoting CPL 220.10 [emphasis omitted]). “Except in circumstances not relevant here, where the indictment charges two or more offenses in separate counts, a defendant may enter a plea of guilty to one or more of the offenses charged and/or lesser included offenses thereof” (People v. Johnson, 89 NY2d at 907; see CPL 220.10[4]). “For plea purposes only, lesser included offenses include not only those qualifying as such under the general statutory definition of lesser included crimes (CPL 1.20[37]), but also the specifically enumerated extensions of the lesser included offense concept, set forth in CPL 220.20(1)(a)-(k)” (People v. Johnson, 89 NY2d at 907). Moreover, the Court of Appeals has sanctioned two narrow exceptions to the statutory plea of guilty restrictions of CPL article 220 (see People v. Johnson, 89 NY2d at 907). First, the Court of Appeals has “approved of a plea to the technically nonexistent crime of an attempt to commit a specific crime which, by definition, is committed without intent, but which otherwise would have been a lesser included offense as an attempt under the general definition of CPL 1.20(37)” (id. at 908). Second, the Court of Appeals has “approved of a plea to a lesser crime technically inconsistent with the crime charged, albeit sharing common elements and involving the same victim” (id.). Here, the defendant, in pleading guilty to assault in the second degree, as purportedly charged in count 3 of the indictment, pleaded guilty to a lesser crime sharing common elements and involving the same victim as was charged in count 1 of the indictment, which charged him with attempted assault in the first degree. Thus, there was no jurisdictional impediment to the Supreme Court’s acceptance of the defendant’s plea (see id.; People v. White, 38 AD3d 320, 320-321; People v. Hahn, 10 AD3d 809, 810-811). Moreover, the defendant forfeited any claim of statutory noncompliance by his plea (see People v. White, 38 AD3d at 321; People v. Hahn, 10 AD3d at 809-810). The parties’ remaining contentions, including those raised in the defendant’s pro se supplemental brief, either are without merit or need not be reached in light of our determination. CONNOLLY, J.P., CHRISTOPHER, GENOVESI and WARHIT, JJ., concur. By Dillon, J.P.; Miller, Dowling, Voutsinas, JJ. ALAN TAGLIANETTI, app, v. BAY RIDGE MEDICAL IMAGING, P.C., res — (Index No. 509582/16) Michael A. Cervini (Diamond and Diamond LLC, Brooklyn, NY [Stuart Diamond], of counsel), for appellant. Martin Clearwater & Bell LLP, New York, NY (Richard Wolf, Gregory A. Cascino, and John J. Barbera of counsel), for respondent. In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated September 20, 2022. The order, insofar as appealed from, denied the plaintiff’s motion to extend the time to file a note of issue and granted that branch of the defendant’s cross-motion which was pursuant to CPLR 3126 to strike the complaint. ORDERED that the order is affirmed insofar as appealed from, with costs. In June 2016, the plaintiff commenced this action against the defendant to recover damages for medical malpractice and lack of informed consent relating to an MRI scan that he underwent in 2015. Pursuant to an order dated July 11, 2019, the fourth discovery-related order issued in this action directing the plaintiff to comply with past-due discovery demands, the plaintiff was required, among other things, to provide certain compliant authorizations on or before July 22, 2019, and to file a note of issue on or before January 22, 2020. The plaintiff failed to provide all of the compliant authorizations required or to file a note of issue. On June 23, 2022, the defendant served the plaintiff with a 90-day notice pursuant to CPLR 3216. By notice of motion dated July 14, 2022, the plaintiff moved to extend the time to file a note of issue. The defendant opposed the plaintiff’s motion and cross-moved, among other things, pursuant to CPLR 3126 to strike the complaint based on the plaintiff’s repeated failure over an extended period of time to comply with the defendant’s discovery demands and court-ordered discovery. In an order dated September 20, 2022, the Supreme Court, inter alia, granted that branch of the defendant’s cross-motion and denied the plaintiff’s motion. The plaintiff appeals. “‘Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed’” (Morales v. Valeo, 218 AD3d 676, 678, quoting Aha Sales, Inc. v. Creative Bath Prods., Inc., 110 AD3d 1019, 1019). “‘Although public policy strongly favors that actions be resolved on the merits when possible, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party’s failure to comply with a disclosure order was the result of willful and contumacious conduct’” (Morales v. Valeo, 218 AD3d at 678, quoting Nationstar Mtge., LLC v. Jackson, 192 AD3d 813, 815). “The willful and contumacious character of a party’s conduct can be inferred from either the repeated failure to respond to demands or comply with discovery orders, without demonstrating a reasonable excuse for these failures, or the failure to comply with court-ordered discovery over an extended period of time” (Patrick v. Lend Lease [US] Constr. LMB, Inc., 203 AD3d 836, 838 [internal quotation marks omitted]; see Morales v. Valeo, 218 AD3d 676). Here, the plaintiff’s willful and contumacious conduct can be inferred from his repeated failure to timely and fully comply with the defendant’s discovery demands and court-ordered discovery, without an adequate excuse (see Hongyan Sun v. Lee, 212 AD3d 717, 719; Sheikh v. Poplardo, 207 AD3d 775, 776). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the defendant’s cross-motion which was pursuant to CPLR 3126 to strike the complaint. The plaintiff’s remaining contentions need not be reached in light of our determination. DILLON, J.P., MILLER, DOWLING and VOUTSINAS, JJ., concur. By Iannacci, J.P.; Wooten, Genovesi, Dowling, JJ. ALEXANDER REICH, res, v. DWIGHT REDLEY, app, ET AL., def — (Index No. 4633/08) Chidi Eze, Brooklyn, NY (Reza Islam of counsel), for appellant. Solomon Rosengarten, Brooklyn, NY, for respondent. In an action to foreclose a mortgage, the defendant Dwight Redley appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated August 4, 2021. The order, insofar as appealed from, denied that defendant’s motion pursuant to CPLR 5015(a)(3) to vacate an order and judgment of foreclosure and sale (one paper) of the same court (Masha L. Steinhardt, J.) dated March 23, 2011, and to dismiss the complaint insofar as asserted against him. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff commenced this action against, among others, the defendant Dwight Redley (hereinafter the defendant) to foreclose a mortgage on certain real property located in Brooklyn. The defendant failed to appear or answer the complaint, and ultimately an order and judgment of foreclosure and sale was issued, inter alia, directing the sale of the subject property. On the eve of the scheduled auction of the property, the defendant moved pursuant to CPLR 5015(a)(3) to vacate the order and judgment of foreclosure and sale, and to dismiss the complaint insofar as asserted against him. The plaintiff opposed the motion. By order dated August 4, 2021, the Supreme Court, inter alia, denied the defendant’s motion. The defendant appeals. Pursuant to CPLR 5015(a)(3), a court may relieve a party from a judgment or order upon the ground of fraud, misrepresentation, or other misconduct of an adverse party. The defendant’s contention that the allegations in the complaint are false amounts to an allegation of intrinsic fraud, which requires the defendant to establish a reasonable excuse for the default and a potentially meritorious defense to the action (see ETrade Bank v. Ejenam, 188 AD3d 1004, 1006; Capital One, N.A. v. Mc Cormack, 183 AD3d 644, 644). Since the defendant offered no excuse for his default, it is unnecessary to consider whether he presented a potentially meritorious defense to the action (see CitiMortgage, Inc. v. Nunez, 198 AD3d 865; ETrade Bank v. Ejenam, 188 AD3d at 1006). Further, the defendant failed to demonstrate any basis on which to vacate the order and judgment of foreclosure and sale in the interests of substantial justice (see Woodson v. Mendon Leasing Corp., 100 NY2d 62, 69). The defendant’s remaining contentions are without merit. Accordingly, the Supreme Court properly denied that branch of the defendant’s motion which was to vacate the order and judgment of foreclosure and sale. Since the order and judgment of foreclosure and sale was entered upon the defendant’s default, and the defendant has failed to establish any grounds for relief from the order and judgment of foreclosure and sale, the court also properly denied that branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against him (see U.S. Bank Trust, N.A. v. McCobb, 222 AD3d 696, 698). IANNACCI, J.P., WOOTEN, GENOVESI and DOWLING, JJ., concur. By Duffy, J.P.; Maltese, Dowling, Voutsinas, JJ. THE PEOPLE, ETC., res, v. PETE HAUGHTON, app — (Index No. 95/21) Patricia Pazner, New York, NY (Anna Jouravleva of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel; Miles Palminteri on the memorandum), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Toni M. Cimino, J.), imposed June 17, 2022, upon his plea of guilty, on the ground that the sentence was excessive. ORDERED that the sentence is affirmed. “A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v. Lopez, 6 NY3d 248, 256). Here, the defendant’s purported waiver of the right to appeal was invalid. The Supreme Court did not discuss the appeal waiver with the defendant until after he had already admitted his guilt as part of the plea agreement (see People v. Lawrence, ___ AD3d ___, 2024 NY Slip Op 02545 [2d Dept]; People v. Ford, 225 AD3d 894; People v. Sutton, 184 AD3d 236, 245), and the court’s oral colloquy mischaracterized the appellate rights waived as encompassing the loss of attendant rights to counsel and poor person relief (see People v. Lawrence, ___ AD3d ___, 2024 NY Slip Op 02545; People v. Francis, 215 AD3d 762, 762). Moreover, given the court’s failure to ascertain whether the defendant understood the contents of the written waiver of the right to appeal, together with defendant’s documented mental health issues and the fact that this was his first felony conviction, the defendant’s execution of a written waiver of the right to appeal after he had already admitted his guilt did not cure the court’s deficient oral colloquy (see People v. Lawrence, ___ AD3d ___, 2024 NY Slip Op 02545; People v. Bakayoko, 174 AD3d 730, 731). Thus, the appeal waiver does not preclude review of the defendant’s claim that the sentence imposed was excessive. Nevertheless, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). DUFFY, J.P., MALTESE, DOWLING and VOUTSINAS, JJ., concur. By Barros, J.P.; Wooten, Warhit, Taylor, Love, JJ. THE PEOPLE, ETC., res, v. ERIC PRESSLEY, app — (Index No. 70096/21) Patricia Pazner, New York, NY (Alexa Askari of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (James Joseph Gandia and Thomas B. Litsky of counsel), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Richmond County (Lisa Grey, J.), imposed January 11, 2023, upon his plea of guilty, on the ground that the sentence was excessive. ORDERED that the sentence is affirmed. Contrary to the defendant’s contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 NY3d 248, 256). The defendant’s valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see id. at 255-256; People v. Lowe, 216 AD3d 670, 671). BARROS, J.P., WOOTEN, WARHIT, TAYLOR and LOVE, JJ., concur. By Barros, J.P.; Wooten, Warhit, Taylor, Love, JJ. THE PEOPLE, ETC., res, v. TAHIRIS FANEYTT, app — (Index No. 1290/20) Randall D. Unger, Kew Gardens, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle S. Fenn of counsel; Deanna Russo on the memorandum), for respondent. Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Queens County (Peter F. Vallone, Jr., J.), imposed October 4, 2023, upon her plea of guilty, on the ground that the sentence was excessive. ORDERED that the sentence is affirmed. The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). BARROS, J.P., WOOTEN, WARHIT, TAYLOR and LOVE, JJ., concur. By Duffy, J.P.; Christopher, Genovesi, Ventura, JJ. AMANDA LEWINSKI, plf-res, v. CITY OF NEW YORK, ET AL., app, ALFRED ADAMS, def-res — (Index No. 526733/19) Smith Mazure, P.C., New York, NY (Joel M. Simon of counsel), for appellants. White & McSpedon, P.C., New York, NY (Irwen C. Abrams of counsel), for defendant-respondent. In an action to recover damages for personal injuries, the defendants City of New York, New York City Department of Education, Rainbow Transit, Inc., and James Paul appeal from an order of the Supreme Court, Kings County (Robin K. Sheares, J.), dated May 25, 2023. The order, insofar as appealed from, granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against the defendants City of New York, New York City Department of Education, Rainbow Transit, Inc., and James Paul and denied that branch of those defendants’ cross-motion which was for summary judgment dismissing the complaint and, in effect, all cross-claims insofar as asserted against them. ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against the defendants City of New York, New York City Department of Education, Rainbow Transit, Inc., and James Paul, and substituting therefor a provision denying that branch of the plaintiff’s motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. The plaintiff commenced this action against the defendants, City of New York, New York City Department of Education, Rainbow Transit, Inc., James Paul (hereinafter collectively the City defendants), and Alfred Adams to recover damages for personal injuries she allegedly sustained in October 2018 when she was a passenger on a school bus owned and operated by the City defendants that collided with a vehicle operated by Adams. The plaintiff moved for summary judgment on the issue of liability and, in effect, for summary judgment determining that she was not at fault in the happening of the accident. The City defendants cross-moved pursuant to CPLR 2004 to extend their time to move for summary judgment and for summary judgment dismissing the complaint and, in effect, all cross-claims insofar as asserted against them. By order dated May 25, 2023, the Supreme Court granted the plaintiffs’ motion, granted that branch of the City defendants’ cross-motion which was to extend their time to move for summary judgment, and denied that branch of the City defendants’ cross-motion which was for summary judgment dismissing the complaint and, in effect, all cross-claims insofar as asserted against them. The City defendants appeal from so much of the order as granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against the City defendants and denied that branch of the City defendants’ cross-motion which was for summary judgment dismissing the complaint and, in effect, all cross-claims insofar as asserted against them. “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” (Bhattarai v. Louie, 222 AD3d 611, 612 [internal quotation marks omitted]). “A plaintiff is no longer required to show freedom from comparative fault in order to establish his or her prima facie entitlement to judgment as a matter of law on the issue of liability” (Andrade-Fuentes v. Iglesia Cristiana Valle De Jesus, Inc., 219 AD3d 1286, 1288 [internal quotation marks omitted]). However, “[i]f the plaintiff fails to demonstrate, prima facie, that the operator of the [allegedly] offending vehicle was at fault, or if triable issues of fact are raised by the defendants in opposition,…summary judgment on the issue of liability must be denied, even if the moving plaintiff was an innocent passenger” (Quintero v. Boyle, 221 AD3d 925, 926 [internal quotation marks omitted]; see Wise v. Boyd Bros. Transp., Inc., 194 AD3d 1096, 1098). Here, the plaintiff failed to demonstrate, prima facie, that Paul, the driver of the school bus, was negligent in the happening of the accident (see Quintero v. Boyle, 221 AD3d at 926; Singh v. Hana Express Cab Corp., 216 AD3d 1026, 1027-1028). As a result, the burden never shifted to City defendants to submit evidence sufficient to raise a triable issue of fact (see Guido v. Dagnese, 214 AD3d 715, 717). Contrary to Adams’s contention, the Supreme Court properly granted that branch of the City defendants’ cross-motion which was pursuant to CPLR 2004 to extend their time to move for summary judgment. “Upon a showing of good cause, the Supreme Court is authorized to extend a court-ordered deadline for making a summary judgment motion” (Ianello v. O’Connor, 58 AD3d 684, 685, citing CPLR 2004; see CPLR 3212[a]). “An untimely motion or cross motion for summary judgment may be considered by the court where…a timely motion for summary judgment was made on nearly identical grounds” (Munoz v. Salcedo, 170 AD3d 735, 736 [alterations and internal quotation marks omitted]). “In such circumstances, the issues raised by the untimely cross motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause to review the merits of the untimely cross motion” (Homeland Ins. Co. of N.Y. v. National Grange Mut. Ins. Co., 84 AD3d 737, 738-739 [citation omitted). Since the plaintiff sought summary judgment not only on the issue of whether she was at fault in the happening of the accident (see Williams v. Wright, 119 AD3d 670, 671-672), but also on the issue of liability against the City defendants, the court providently exercised its discretion in considering the merits of that branch of the City defendants' cross-motion which was for summary judgment dismissing the complaint and, in effect, all cross-claims insofar as asserted against them (see Whitehead v. City of New York, 79 AD3d 858, 859-860; Ianello v. O'Connor, 58 AD3d at 686). However, the Supreme Court properly denied that branch of the City defendants' cross-motion which was for summary judgment dismissing the complaint and, in effect, all cross-claims insofar as asserted against them. "A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" (Boulos v. Lerner-Harrington, 124 AD3d 709, 709). "A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law. Vehicle and Traffic Law §1128(a) provides that '[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety’” (Elfe v. Roman, 219 AD3d 1304, 1305 [citation omitted]). Here, although the City defendants showed that Adams was solely at fault for the first impact through their submissions that demonstrated that he entered the bus’s lane of travel when it was unsafe to do so and struck the bus, they failed to establish, prima facie, that, with respect to the second impact, Paul reacted reasonably in response to the emergency presented (see e.g. Flores v. Metropolitan Transp. Auth., Long Is. Bus, 122 AD3d 672, 672-673; Mohr v. Carlson, 120 AD3d 1206, 1207-1208). Since the City defendants failed to establish that they were not negligent as a matter of law with respect to the happening of the accident, the burden never shifted to the plaintiff or Adams to raise a triable issue of fact and the court therefore properly denied this branch of the City defendants’ cross-motion. The City defendants’ remaining contention is without merit. DUFFY, J.P., CHRISTOPHER, GENOVESI and VENTURA, JJ., concur. By Iannacci, J.P.; Genovesi, Dowling, Taylor, JJ. IN THE MATTER OF ASFIA KHATUN, res, v. GERALD M. HERTZ, ETC., ET AL., app — (Index No. 726860/22) Gerald M. Hertz, PLLC, Great Neck, NY (Gerald M. Hertz pro se of counsel) and for appellants. Andrew Moulinos, Astoria, NY, for respondent. In a proceeding to cancel a notice of pendency on real property, Gerald M. Hertz and Mashud Reza appeal from an order of the Supreme Court, Queens County (Karina E. Alomar, J.), entered March 22, 2023. The order, insofar as appealed from, denied their motion to dismiss the petition, granted the petition, and awarded the petitioner costs in the sum of $4,500 pursuant to CPLR 6514(c). ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion to dismiss is granted, the petition is denied, and the proceeding is dismissed. This proceeding involves real property that was subject to a partnership liquidation dispute brought in the United States District Court for the Eastern District of New York. The petitioner commenced this proceeding to cancel two notices of pendency filed on the subject property in conjunction with the federal action and to recover costs pursuant to CPLR 6514(c). The appellants moved to dismiss the petition, contending, inter alia, that the petitioner is not the owner of the subject property. The Supreme Court denied the motion to dismiss, granted the petition, and awarded the petitioner costs in the sum of $4,500 pursuant to CPLR 6514(c). This appeal ensued. “Standing is a threshold determination that a person should be allowed access to the courts to adjudicate the merits of a particular dispute” (Frankel v. J.P. Morgan Chase & Co., 193 AD3d 689, 690). The petitioner here does not have standing to object to the validity of the notices of pendency since she is not a “person aggrieved” by the filings (CPLR 6514[a]). A party may not continue a proceeding to cancel a notice of pendency when that party has been divested of all relevant legal interest in the subject property (see Temple Bnai Shalom of Great Neck v. Village of Great Neck Estates, 32 AD3d 391, 392; Matter of Commercial Bank of Informatics & Computing Technique Dev. Bank Informtechnika v. Ostashko, 274 AD2d 516, 517). Having failed to establish standing to bring this proceeding in the first instance, the petitioner is not entitled to costs pursuant to CPLR 6514(c). Accordingly, the motion to dismiss should have been granted, the petition denied, and the proceeding dismissed. In light of this determination, the parties’ remaining contentions need not be reached. IANNACCI, J.P., GENOVESI, DOWLING and TAYLOR, JJ., concur. By Duffy, J.P.; Maltese, Voutsinas, Ventura, JJ. MATTHEW LAZARUS, app, v. WILDLIFE PRESERVES, INC., ET AL., res (AND A THIRD-PARTY ACTION) — (Index No. 64037/19) Antonio Marano, Commack, NY, for appellant. Meyner and Landis, LLP, New York, NY (Catherine Pastrikos Kelly of counsel), for respondent Wildlife Preserves, Inc., and Faegre Drinker Biddle & Reath LLP, New York, NY (Clay J. Pierce of counsel), for respondent Marsh Sanctuary, Inc. (one brief filed). In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Leonard D. Steinman, J.), dated August 3, 2023. The order, insofar as appealed from, granted the motion of the defendants for summary judgment dismissing the complaint. ORDERED that the order is affirmed insofar as appealed from, with costs. In 2019, the plaintiff commenced this action against the defendants, Wildlife Preserves, Inc., and Marsh Sanctuary, Inc. (hereinafter Marsh Sanctuary), pursuant to the Child Victims Act (see CPLR 214-g), alleging, inter alia, that he was sexually abused as a child between 1990 and 1996 by the child of an individual who, at the time, was an employee of the defendant Marsh Sanctuary. The plaintiff alleged that the abuse took place on property owned and managed by the defendants consisting of a 156-acre nature preserve, and asserted a cause of action sounding in premises liability. The defendants moved for summary judgment dismissing the complaint. In an order dated August 3, 2023, the Supreme Court, inter alia, granted the defendants’ motion. The plaintiff appeals. “A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties” (King v. Diplomat Hospitality Group, LLC, 218 AD3d 454, 454 [internal quotation marks omitted]; see Nallan v. Helmsley-Spear, Inc., 50 NY2d 507, 518-519). “To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected” (King v. Diplomat Hospitality Group, LLC, 218 AD3d at 454 [internal quotation marks omitted]; see Jacqueline S. v. City of New York, 81 NY2d 288, 294-295). However, “the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location” (Novikova v. Greenbriar Owners Corp., 258 AD2d 149, 153; see C.M. v. Spa 88, LLC, 222 AD3d 436, 436-437). “Without evidentiary proof of notice of prior criminal activity, the owner’s duty reasonably to protect those using the premises from such activity never arises” (Golub v. Louris, 153 AD3d 903, 904 [internal quotation marks omitted). Here, the defendants established their prima facie entitlement to summary judgment as a matter of law by demonstrating that the subject occurrence was not foreseeable, "as [the defendants] had no notice of the same or similar criminal activity occurring at a location sufficiently proximate to the subject premises” (King v. Diplomat Hospitality Group, LLC, 218 AD3d at 454-455; see Golub v. Louris, 153 AD3d at 904). In opposition, the plaintiff failed to raise a triable issue of fact as to foreseeability (see C.M. v. Spa 88, LLC, 222 AD3d at 436-437; Maria T. v. New York Holding Co. Assoc., 52 AD3d 356, 358). DUFFY, J.P., MALTESE, VOUTSINAS and VENTURA, JJ., concur. By Connolly, J.P.; Maltese, Ford, Love, JJ. YOON SIK MOON, res, v. PAULO O. RAMIREZ, ET AL., app — (Index No. 714798/19) Litchfield Cavo LLP, New York, NY (Mark A. Everett of counsel), for appellants. Sacco & Fillas, LLP, Astoria, NY (Elliot L. Lewis of counsel), for respondent. In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered August 19, 2022. The order denied the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident. ORDERED that the order is affirmed, with costs. The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained when he was struck by a motor vehicle owned by the defendant KND Licenced Electrical Contracting Services Corp. and operated by the defendant Paulo O. Ramirez. The defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident. In an order entered August 19, 2022, the Supreme Court denied the motion, determining that the defendants failed to establish, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law §5102(d). The defendants appeal. We affirm, albeit on different grounds. The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955, 956-957). The defendants failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a serious injury to his left hip under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law §5102(d) (see Zennia v. Ramsey, 208 AD3d 735, 735; Melika v. Caraballo, 187 AD3d 1173, 1173). Further, the defendants failed to establish, prima facie, that the alleged injury to the plaintiff’s left hip was not caused by the accident (see Zennia v. Ramsey, 208 AD3d at 735; Luigi v. Avis Cab Co., Inc., 96 AD3d 809). Since the defendants failed to establish, prima facie, that the plaintiff did not sustain a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law 5102(d) as a result of the accident, it is unnecessary to consider whether the defendants established that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law 5102(d) as a result of the accident (see Criale v. Delfavero, 211 AD3d 905, 906). Since the defendants failed to meet their prima facie burden, it is not necessary to review the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). Accordingly, the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident was properly denied. CONNOLLY, J.P., MALTESE, FORD and LOVE, JJ., concur. By Barros, J.P.; Wooten, Warhit, Taylor, Love, JJ. THE PEOPLE, ETC., res, v. MUDASSAR KHAN, app — (Index No. 795/19) Patricia Pazner, New York, NY (Rebekah J. Pazmiño of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Charles T. Pollak of counsel; Ann Marie Turton on the memorandum), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (John B. Latella, J.), imposed March 31, 2021, upon his plea of guilty, on the ground that the sentence was excessive. ORDERED that the sentence is affirmed. The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). BARROS, J.P., WOOTEN, WARHIT, TAYLOR and LOVE, JJ., concur. By Nelson, J.P.; Christopher, Ford, Landicino, JJ. THE PEOPLE, ETC., res, v. ROY BOLUS, app — (Index No. 73544/22) Patricia Pazner, New York, NY (David P. Greenburg of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and William H. Branigan of counsel; Deanna Russo on the memorandum), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Gia L. Morris, J.), imposed February 27, 2023, upon his plea of guilty, on the ground that the sentence was excessive. ORDERED that the sentence is affirmed. Contrary to the defendant’s contention, the record demonstrates that the defendant knowingly, willingly, and intelligently waived his right to appeal (see People v. Lopez, 6 NY3d 248, 254). The defendant’s valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see id. at 255-256). BRATHWAITE NELSON, J.P., CHRISTOPHER, FORD and LANDICINO, JJ., concur. By Barros, J.P.; Maltese, Wooten, Love, JJ. IN THE MATTER OF CAMILA G. C. (ANONYMOUS). ROCKLAND COUNTY CHILD PROTECTIVE SERVICES, pet-res; MATTHEW C. (ANONYMOUS), res-app, ET AL., res — (PROCEEDING NO. 1); IN THE MATTER OF CAMILA G. C. (ANONYMOUS). LAURA F. (ANONYMOUS), app — (PROCEEDING NO. 2) — (Index Nos. N-694-20, N-695-20, G-87-22) Warren S. Hecht, Forest Hills, NY, for respondent-appellant in Proceeding No. 1. Laura F., Nyack, NY, appellant pro se in Proceeding No. 2. Thomas E. Humbach, County Attorney, Pomona, NY (Barbara M. Wilmut of counsel), for petitioner-respondent in Proceeding No. 1. Legal Aid Society of Rockland County, New City, NY (Jacqueline Sands of counsel), attorney for the child. In a proceeding pursuant to Family Court Act article 10, and a related proceeding pursuant to Family Court Act article 6, the father appeals, and the paternal grandmother separately appeals, from an order of the Family Court, Rockland County (Rachel E. Tanguay, J.), dated September 28, 2022. The order, after a hearing, denied the paternal grandmother’s petition for guardianship of the subject child and placed the subject child in the care and custody of the Commissioner of Social Services of Rockland County. ORDERED that the order is affirmed, without costs or disbursements. The paternal grandmother (hereinafter the grandmother) filed a petition to be appointed the guardian of the subject child, which the father supported. After a hearing, the Family Court, in an order dated September 28, 2022, denied the grandmother’s petition and placed the child in the care and custody of the Commissioner of Social Services of Rockland County. The grandmother and the father separately appeal. The Family Court did not err in denying the grandmother’s petition for guardianship of the child, as she failed to establish that it was in the child’s best interests for guardianship to be awarded to her (see Eschbach v. Eschbach, 56 NY2d 167, 171; Matter of Lisa S. v. Deloris K.J., 207 AD3d 549, 550). In determining the best interests of the child, there is no presumption that the child’s best interests will be better served by a return to a family member (see Matter of Tabitha T.S.M. [Tracee L.M. --- Candace E.], 159 AD3d 703, 705). Indeed, Social Services Law §383(3) gives preference for adoption to a foster parent who has cared for a child continuously for a period of 12 months or more, while members of the child’s extended biological family are given no special preference with regard to custody (see Matter of Tabitha T.S.M. [Tracee L.M. --- Candace E.], 159 AD3d at 705; Matter of El v. Administration for Children’s Servs.-Queens, 159 AD3d 700, 701; Matter of Patricia I.H. v. ACS-Kings, 140 AD3d 1165, 1166). Thus, a nonparent relative takes no precedence for custody over the adoptive parents selected by an authorized agency (see Matter of Carter v. Administration for Children’s Servs., 176 AD3d 696, 697; Matter of El v. Administration for Children’s Servs.-Queens, 159 AD3d at 701; Matter of Seasia D. [Kareem W.], 75 AD3d 548, 552). At the time the grandmother filed her petition in January 2022, the child had been in a foster home for the first 22 months of her life. The child was thriving in the care of the foster parents in the only home she had ever known (see Matter of Lisa S. v. Deloris K.J., 207 AD3d at 550; Matter of Luz Maria V., 23 AD3d 192, 194). She had strongly and lovingly bonded with the foster parents and the other children in the home (see Matter of El v. Administration for Children’s Servs.-Queens, 159 AD3d at 701-702). Under these circumstances, it would not have been in the child’s best interests to award guardianship to the grandmother and to remove the child from the foster home where she had spent her entire life. The fact that the grandmother would be a good caretaker was not a sufficient reason to remove the child from the only home she had ever known and from the family with whom she had bonded (see Matter of Guardianship of D. Children, 177 AD2d 393, 394; Matter of Lundyn S. [Al-Rahim S.], 128 AD3d 1406, 1407-1408). The grandmother, having no precedence over the foster parents, was required to demonstrate not only that she would make a suitable adoptive parent, but that she would provide a better adoptive home than that planned by the agency (see Matter of Peter L., 59 NY2d 513, 520). The grandmother failed to make a such a showing. BARROS, J.P., MALTESE, WOOTEN and LOVE, JJ., concur. By Barros, J.P.; Maltese, Wooten, Love, JJ. IN THE MATTER OF CAMILA G. C. (ANONYMOUS). ROCKLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, res; MATTHEW C. (ANONYMOUS), app — (Index No. B-2993-22) Warren S. Hecht, Forest Hills, NY, for appellant. Thomas E. Humbach, County Attorney, Pomona, NY (Barbara M. Wilmut of counsel), for respondent. Legal Aid Society of Rockland County, New City, NY (Jacqueline Sands of counsel), attorney for the child. In a proceeding pursuant to Social Services Law §384-b, the father appeals from (1) an order of fact-finding of the Family Court, Rockland County (Rachel E. Tanguay, J.), dated May 22, 2023, and (2) an order of disposition of the same court dated August 28, 2023. The order of fact-finding, after a hearing, found that the father permanently neglected the subject child. The order of disposition, upon the order of fact-finding and after a dispositional hearing, terminated the father’s parental rights and transferred guardianship and custody of the subject child to the petitioner for the purpose of adoption. ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order of fact-finding was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further, ORDERED that the order of disposition is affirmed, without costs or disbursements. The petitioner commenced this proceeding to terminate the father’s parental rights to the subject child on the ground of permanent neglect. After a fact-finding hearing, the Family Court found that the father permanently neglected the child. After a dispositional hearing, the court terminated the father’s parental rights and transferred guardianship and custody of the child to the petitioner for the purpose of adoption. The father appeals. The petitioner established, by clear and convincing evidence, that the father permanently neglected the child (see Social Services Law §384-b[7][a]), despite its diligent efforts to strengthen the parent-child relationship. Despite the petitioner’s diligent efforts, the father failed to plan for the return of the child, as he did not complete all of the required services and failed to gain any insight from the services he did utilize (see Matter of S.E.M. [Elizabeth A.M.], 213 AD3d 667, 668). Accordingly, the Family Court properly found that the father permanently neglected the child. At the dispositional stage of a proceeding to terminate parental rights, the court focuses solely on the best interests of the child, and there is no presumption that those interests will be served best by any particular disposition (see Family Ct Act §631; Matter of Star Leslie W., 63 NY2d 136, 147-148). “The factors to be considered in making the determination include the [parent's] capacity to properly supervise the child, based on current information and the potential threat of future abuse and neglect” (Matter of William S.L. [Julio A.L.], 195 AD3d 839, 843 [internal quotation marks omitted]). At disposition, there is no presumption that the child’s best interests will be served best by a return to the biological parent (see Matter of Alonso S.C.O. [Angela O.M.], 211 AD3d 952, 955; Matter of Kasimir Lee D. [Jasmaine D.], 198 AD3d 754, 756). Here, the evidence showed that the child was at risk of future neglect, due to the father’s failure to address his substance abuse issues. Therefore, the Family Court properly determined that it was in the child’s best interests to terminate the father’s parental rights and free the child for adoption. The father’s contention that the Family Court should have granted him a suspended judgment, rather than terminate his parental rights, is unpreserved for appellate review and, in any event, without merit. A suspended judgment is not appropriate where, as here, a parent has failed to gain insight into their problems and failed to address the issues which led to the child’s removal in the first instance (see Matter of Jeremiah W.T. [Shaunta K.J. --- William T.], 206 AD3d 662, 664; Matter of Mathew B.C. [Sue-Ann L.C.], 200 AD3d 689, 690). BARROS, J.P., MALTESE, WOOTEN and LOVE, JJ., concur. By Duffy, J.P.; Maltese, Dowling, Voutsinas, JJ. THE PEOPLE, ETC., res, v. DAVID PIERSALL, app. Margaret M. Walker, Poughkeepsie, NY (Robert K. Young of counsel), for appellant. Anthony P. Parisi, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent. Appeal by the defendant, as limited by his motion, from an amended sentence of the County Court, Dutchess County (Jessica Segal, J.), imposed May 18, 2023, on the ground that the amended sentence was excessive. ORDERED that the amended sentence is affirmed. The amended sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). DUFFY, J.P., MALTESE, DOWLING and VOUTSINAS, JJ., concur. By Barros, J.P.; Wooten, Warhit, Taylor, Love, JJ. THE PEOPLE, ETC., res, v. HECTOR E. TORRES, app — (Index No. 70034/20) John R. Lewis, Sleepy Hollow, NY, for appellant. David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass of counsel), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Orange County (Victoria B. Campbell, J.), imposed December 15, 2021, upon his plea of guilty, on the ground that the sentence was excessive. ORDERED that the sentence is affirmed. Contrary to the People’s contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, since the County Court did not discuss the appeal waiver until after the defendant had already admitted his guilt as part of the plea agreement (see People v. Blake, 210 AD3d 901; People v. Diallo, 196 AD3d 598). Thus, the defendant’s purported waiver of his right to appeal does not foreclose appellate review of his excessive sentence claim. However, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). BARROS, J.P., WOOTEN, WARHIT, TAYLOR and LOVE, JJ., concur. By Dillon, J.P.; Dowling, Taylor, Ventura, JJ. THE PEOPLE, ETC., res, v. JEAN M. RODRIGUES ARMSTRONG, app — (Index No. 1094/19) Samuel S. Coe, White Plains, NY, for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfrancesco of counsel), for respondent (no brief filed). Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry Warhit, J.), rendered March 24, 2022, convicting her of attempted robbery in the first degree, upon her plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant. ORDERED that the motion of Samuel S. Coe for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further, ORDERED that Loren Glassman, 185 Delhi Road, Scarsdale, NY 10583, is assigned as counsel to prosecute the appeal; and it is further, ORDERED that the respondent is directed to furnish a copy of the certified transcript of the proceedings to the appellant’s new assigned counsel; and it is further, ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of this decision and order on motion, and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court dated October 12, 2022, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers, including a certified transcript of the proceedings, and on the briefs of the parties. The parties are directed to upload, through the digital portal on this Court’s website, digital copies of their respective briefs, with proof of service of one hard copy on each other (see 22 NYCRR 670.9[a]). In reviewing an attorney’s motion to be relieved pursuant to Anders v. California (386 US 738), this Court must first “‘satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client’s appeal’” (Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 255, quoting Penson v. Ohio, 488 US 75, 83). An adequate Anders brief “must, at a minimum, draw the Court’s attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority” (Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258). “[W]here counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal” (id.; see People v. Beatty, 173 AD3d 1197, 1198). Here, the brief submitted by assigned counsel pursuant to Anders v. California is deficient because it fails to analyze potential appellate issues with reference to legal authority or highlight facts in the record that might arguably support the appeal (see People v. Ponce, 221 AD3d 914, 915; People v. Corley, 186 AD3d 1239, 1240; People v. Deprosperis, 126 AD3d 997, 998). “Specifically, the statement of facts does not review, in any detail, the Supreme Court’s advisements to the defendant regarding the rights [s]he was waiving, the inquiries made of the defendant to ensure that the plea was knowing and voluntary, or the defendant’s responses to any of those advisements and inquiries. Nor does it provide any detail regarding the defendant’s factual admissions as to the crime charged” (People v. Johnson, 126 AD3d 916, 917 [citation omitted]). The brief also “fails to provide the relevant colloquy/facts concerning the defendant’s purported waiver of h[er] right to appeal with citation to legal authority,” or “to analyze whether [she] has a nonfrivolous claim that the sentence imposed was excessive” (People v. Corley, 186 AD3d at 1240). “[R]ather than acting as an advocate and evaluating whether there were any nonfrivolous issues to raise on appeal, assigned counsel has acted as ‘a mere advisor to the court,’ opining on the merits of the appeal” (People v. Petrangelo, 216 AD3d 1181, 1182, quoting Matter of Giovanni S. [Jasmin A.], 89 AD3d at 256; see People v. Ponce, 221 AD3d at 915). “It is inappropriate for this Court to analyze the merits of any particular appellate issue where the appellant has not received the benefit of a merits-based brief prepared by counsel” (People v. Bowen, 192 AD3d 905, 907 [alterations and internal quotation marks omitted]). Since the brief does not demonstrate that assigned counsel has fulfilled his obligations under Anders v. California, we must assign new counsel to represent the defendant (see People v. Ponce, 221 AD3d at 915; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258). DILLON, J.P., DOWLING, TAYLOR and VENTURA, JJ., concur. By Iannacci, J.P.; Ford, Taylor, Love, JJ. DADRENE ST. HILLAIRE, app, v. JOSE A. TORRES, res — (Index No. 600825/22) Harold Solomon, Rockville Centre, NY, for appellant. In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Conrad D. Singer, J.), entered December 8, 2022. The order granted the defendant’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint. ORDERED that the order is affirmed, without costs or disbursements. On January 21, 2022, the plaintiff commenced the instant action, alleging that the defendant had breached a remodeling contract between the parties by improperly installing certain flooring in the plaintiff’s basement. The defendant moved pursuant to CPLR 3211(a)(5) to dismiss the complaint. The plaintiff opposed the motion. In an order entered December 8, 2022, the Supreme Court granted the defendant’s motion. The plaintiff appeals. “[O]n a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of [establishing], prima facie, that the time in which to sue has expired” (Kaul v. Brooklyn Friends Sch., 220 AD3d 939, 940-941 [internal quotation marks omitted]; see Five Star Elec. Corp. v. Skanska USA Bldg., Inc., 221 AD3d 656, 657). “The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period” (Kaul v. Brooklyn Friends Sch., 220 AD3d at 940-941 [internal quotation marks omitted]). A cause of action sounding in breach of contract is governed by a six-year statute of limitations (see CPLR 213[2]). “A claim against a contractor for damages arising from defective construction accrues, for limitations purposes, upon completion of performance under the contract” (Starakis v. Baker, 121 AD3d 669, 671; see Kamath v. Building New Lifestyles, Ltd., 146 AD3d 765, 766). “Moreover, ‘construction may be complete even though incidental matters relating to the project remain open’” (Kamath v. Building New Lifestyles, Ltd., 146 AD3d at 766, quoting State of New York v. Lundin, 60 NY2d 987, 989). Here, the defendant demonstrated that the breach of contract cause of action accrued on May 26, 2015, as the plaintiff made payment under the contract on that date and no further work was performed thereafter. Thus, the defendant established that the plaintiff failed to commence this action within the six-year limitations period (see CPLR 213[2]), taking the tolling provision of the COVID-19 executive orders into account (see generally Bank of N.Y. Mellon v. DeMatteis, 222 AD3d 1, 10; Brash v. Richards, 195 AD3d 582). In opposition, the plaintiff failed to raise a question of fact. Accordingly, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint. IANNACCI, J.P., FORD, TAYLOR and LOVE, JJ., concur. By Iannacci, J.P.; Ford, Taylor, Love, JJ. PEOPLE OF STATE OF NEW YORK, res, v. DOUGLAS JOHNSON, app. Joseph A Hanshe, Sayville, NY (Kimberly M. Ball of counsel), for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Michelle Kaszuba and Glenn Green of counsel), for respondent. Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated March 4, 2021, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C. ORDERED that the order is affirmed, without costs or disbursements. The defendant was convicted, upon a jury verdict, of rape in the first degree and three counts of murder in the second degree. Following a hearing to determine the defendant’s risk level under the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]), the Supreme Court applied an automatic override to a presumptive level three risk classification on the basis that the defendant caused the victim’s death (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]). The court denied the defendant’s application for a downward departure and designated him a level three sex offender. The defendant appeals. “The Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders contain four overrides that automatically result in a presumptive risk assessment of level three” (People v. Brandt, 222 AD3d 890, 890; see Guidelines at 3). “The People bear the burden of proving the applicability of a particular override by clear and convincing evidence” (People v. Brandt, 222 AD3d at 890). “[O]nce the People have sustained [this] burden…a SORA court is not possessed of any discretion in determining whether to apply [an] override; the application of the override is automatic” (id. at 891 [internal quotation marks omitted]; see People v. Broadus, 142 AD3d 595, 595-596). Here, the People established by clear and convincing evidence that the defendant caused the death of the victim (see People v. Rivera, 222 AD3d 1010, 1011; People v. Abdullah, 210 AD3d 704, 705). Thus, the Supreme Court properly determined that the defendant was presumptively a level three sex offender pursuant to the second automatic override, irrespective of the points scored on the risk assessment instrument (see People v. Rivera, 222 AD3d at 1011; People v. Wolm, 209 AD3d 682, 683). In light of our determination that an override was established, we need not reach the defendant’s challenge to the assessment of points under risk factors 12 and 13 (see People v. Wolm, 209 AD3d at 683). Contrary to the defendant’s further contention, the Supreme Court properly denied his application for a downward departure. While advanced age may be a basis for a downward departure, the defendant failed to establish that this factor minimized his risk of reoffense (see People v. Pou, 206 AD3d 766, 768; People v. West, 189 AD3d 1481, 1483). Moreover, the defendant failed to demonstrate that his response to sex offender treatment was “exceptional” (People v. Centeno, 210 AD3d 812, 814; see People v. Barrott, 199 AD3d 1029, 1030), and failed to establish his educational and vocational achievements while incarcerated by a preponderance of the evidence (see People v. Musmacker, 213 AD3d 784, 786). Contrary to the defendant’s contention, he was not deprived of the effective assistance of counsel (see People v. Baker, 221 AD3d 916; People v. Adams, 220 AD3d 953, 954). IANNACCI, J.P., FORD, TAYLOR and LOVE, JJ., concur. By Barros, J.P.; Wooten, Warhit, Ventura, JJ. BIKAL GURUNG, app, v. FREDI SOTOESTRADA, res, ET AL., def — (Index No. 719616/18) Eric H. Green (Mischel & Horn, P.C., New York, NY [Scott T. Horn, Nicholas Bruno, and Ross Friscia], of counsel), for appellant. Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Kevin G. Faley of counsel), for respondent. In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Sally E. Unger, J.), entered October 22, 2022. The order granted the motion of the defendant Fredi Sotoestrada 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 reversed, on the law, with costs, and the motion of the defendant Fredi Sotoestrada 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 is denied. The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained when his vehicle came into contact with a vehicle owned by the defendant Fredi Sotoestrada (hereinafter the defendant). 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 entered October 22, 2022, the Supreme Court denied the motion. The plaintiff appeals. On appeal, the plaintiff does not challenge the Supreme Court’s determination that the defendant met 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 subject accident (see Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955, 956-957). In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law §5102(d) through the affirmed medical report of his doctor (see Perl v. Meher, 18 NY3d 208). Accordingly, the Supreme Court should have 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. BARROS, J.P., WOOTEN, WARHIT and VENTURA, JJ., concur. By Lasalle, P.J.; Maltese, Genovesi, Love, JJ. MANI SINGH, res, v. PROJWAL PRADHAN, app — (Index No. 713526/22) Phillips & Associates, PLLC, New York, NY (Steven Fingerhut and Zachary Randall of counsel), for appellant. Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP, Kew Gardens, NY (Matthew J. Routh of counsel), for respondent. In an action, inter alia, to recover damages for defamation, the defendant appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered November 16, 2022. The order denied the defendant’s motion pursuant to CPLR 3012(d), 2004, and 2005 for leave to serve a late answer. ORDERED that the order is affirmed, with costs. In June 2022, the plaintiff commenced this action against the defendant to recover damages for defamation, libel, embezzlement, and theft of identity. In August 2022, the defendant moved pursuant to CPLR 3012(d), 2004, and 2005 for leave to serve a late answer. The Supreme Court denied the motion. The defendant appeals. “‘A defendant who has failed to timely answer a complaint and who seeks leave to file a late answer must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action’” (Ezra Huber & Assoc., P.C. v. Lopresti, 211 AD3d 689, 690, quoting Bank of Am., N.A. v. Viener, 172 AD3d 795, 796). The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court (see HSBC Bank USA v. Pantel, 208 AD3d 643, 644; Bank of Am., N.A. v. Viener, 172 AD3d at 796). Here, the defendant’s misguided strategy did not constitute law office failure and was not a reasonable excuse (see Federal Natl. Mtge. Assn. v. Grossman, 205 AD3d 770, 772). The defendant’s excuse that his counsel was overbooked with other, unrelated cases in other courts also did not constitute a reasonable excuse (see generally 47 Thames Realty, LLC v. Robinson, 61 AD3d 923). Further, the defendant’s excuse that his counsel mistakenly thought opposing counsel would agree to an extension, without more, did not constitute a detailed and credible explanation for the delay (see Dawkins v. Isole, 206 AD3d 878, 879; Juseinoski v. Board of Educ. of City of N.Y., 15 AD3d 355, 355). Since the defendant failed to provide a reasonable excuse for his delay in answering the complaint, it is not necessary to determine whether he demonstrated a potentially meritorious defense to the action (see Wells Fargo Bank, N.A. v. Hernandez, 204 AD3d 958, 960; Bank of Am., N.A. v. Viener, 172 AD3d at 796). Accordingly, the Supreme Court properly denied the defendant’s motion pursuant to CPLR 3012(d), 2004, and 2005 for leave to serve a late answer. LASALLE, P.J., MALTESE, GENOVESI and LOVE, JJ., concur.