MATTER of William F. Koegel, a/k/a William Fisher Koegel, deceased. John B. Koegel, petitioner-res; Irene Lawrence Koegel, res-res — (File No. 452/14)APPEAL by Irene Lawrence Koegel, in a probate proceeding in which John B. Koegel petitioned pursuant to SCPA 1421 to invalidate her notice of spousal election made pursuant to Estates, Powers and Trusts Law §5-1.1-A and for a declaration that she was not entitled to an elective share of the estate of William F. Koegel, a/k/a William Fisher Koegel, from an order of the Surrogate’s Court (Thomas E. Walsh, Acting Surrogate), dated June 23, 2015, and entered in Westchester County, which denied her motion to dismiss the petition pursuant to CPLR 3211(a)(1) and Domestic Relations Law §236(B)(3).Himmel & Bernstein, LLP, New York, NY (Andrew D. Himmel of counsel), for respondent-appellant.McCarthy Fingar LLP, White Plains, NY (Robert M. Redis of counsel), for petitioner-respondent.AUSTIN, J.In Galetta v. Galetta (21 NY3d 186), the Court of Appeals left unanswered the question of whether a defective acknowledgment of a prenuptial agreement could be remedied by extrinsic proof provided by the notary public who took a party’s signature. For the reasons that follow, we conclude that such proof can remedy a defective acknowledgment. Accordingly, we affirm the order of the Surrogate’s Court, which denied the appellant’s motion to dismiss a petition to invalidate her notice of spousal election.I.The appellant, Irene Lawrence Koegel (hereinafter Irene), and the decedent were married on August 4, 1984. The decedent had been widowed twice before marrying Irene. Irene had been widowed in July 1983. Irene and the decedent were married for more than 29 years at the time of the decedent’s death on February 2, 2014.A. Prenuptial AgreementPrior to their marriage, the decedent and Irene executed a prenuptial agreement (hereinafter the agreement) in July 1984.The agreement provided in the first paragraph that both the decedent and Irene desired that their marriage “shall not in any way change their pre-existing legal right, or that of their respective children and heirs, in the property belonging to each of them at the time of said marriage or thereafter acquired.”Pursuant to the second paragraph, the decedent and Irene agreed “[i]n consideration of said marriage and of the mutual covenants set out herein,” that they would not make a claim as a surviving spouse on any part of the estate of the other. Further, they irrevocably waived and relinquished “all right[s] to… any elective or statutory share granted under the laws of any jurisdiction.”Further, as per the third paragraph, the decedent and Irene declared that their execution of the agreement was not “induced by any promise or undertaking made by or on behalf of the other to make any property settlement whatsoever.” They acknowledged that they entered the agreement knowing the “approximate extent and probable value of the estate of the other.”At the bottom of the first page, both the decedent and Irene signed the agreement. The second page contained certificates of acknowledgment of each signature, each signed by their respective attorneys as notaries. The decedent’s signature was acknowledged by William E. Donovan on July 26, 1984. The acknowledgment read, “On this 26 day of July, 1984, before me personally appeared WILLIAM F. KOEGEL, one of the signers and sealers of the foregoing instrument, and acknowledge the same to be his free act and deed.” Irene’s signature was acknowledged by Curtis H. Jacobsen on July 30, 1984. The language of the acknowledgment relating to the Irene’s signature stated, “On this 30th day of July, 1984, before me personally appeared IRENE N. LAWRENCE, one of the signers and sealers of the foregoing instrument, and acknowledge the same to be her free act and deed.” Neither acknowledgment attested to whether the decedent or Irene was known to the respective notaries.B. Decedent’s Last_Will and_TestamentIn his last will and testament executed December 18, 2008, the decedent stated that he was married to Irene, that there were no children of their marriage, and that he had two sons by a prior marriage. He also stated that, prior to his marriage to Irene, they entered into an “antenuptial agreement dated July 26, 1984,” and that “[t]he bequests to and other dispositions for the benefit of [Irene] contained in this Will [we]re made by [him] in recognition of and notwithstanding said antenuptial agreement.”The will provided that its provisions would control in the event of an inconsistency between it and those of the antenuptial agreement, but that the antenuptial agreement would be otherwise unaffected by the will. The decedent noted that he had made other dispositions in favor of Irene, “including but not limited to… designat[ing] her as the beneficiary of certain retirement benefits payable at [his] death.”The decedent bequeathed to Irene, in the event that she survived him, all of his automobiles, his interest in a condominium apartment in Vero Beach, Florida, subject to any outstanding mortgage and all of its contents, his condominium in Somers, New York, and all of its contents and the contents of their storage unit.The will provided that Irene was to have the condominium in Somers for her exclusive use and occupancy, free of any rent, until her interest terminated upon remarriage, if the premises ceased to be her principal residence, or if she died. She was required to pay all carrying costs with respect to this property. Upon termination of Irene’s interest, the property was to be sold and the proceeds distributed to his then living issue.The decedent also made other specific bequests concerning personal property and sums of money to other individuals and the Hitchcock Presbyterian Church. The remainder of his estate was to be divided among his issue who survived him. The decedent’s son, the petitioner, John B. Koegel (hereinafter John), was appointed as the executor of the decedent’s estate.The will was witnessed by three individuals who stated that the decedent declared the document to be his last will and testament. The subscribing witnesses executed a separate affidavit, sworn to before a notary on December 18, 2008, in which they swore that, inter alia, the decedent was of sound mind, memory, and understanding and had indicated to them that he had read the will and the contents expressed his wishes as to how his estate was to be distributed.C. Decree Admitting_Will to_Probate and_Letters Testamentary_and Notice_of ElectionJohn filed a petition to probate the decedent’s last will and testament, and the Surrogate’s Court granted the petition. Letters testamentary were issued to John on March 21, 2014.On August 21, 2014, Irene filed with the court a notarized notice of election signed July 29, 2014. Irene stated that, as the decedent’s surviving spouse, she was exercising her right of election pursuant to Estates, Powers and Trusts Law §5-1.1-A “to take [her] share of the Decedent’s estate to which [she was] entitled pursuant to said statute.”1D. Subject Petition_to Set_Aside the_Spousal ElectionIn December 2014, John filed a petition to invalidate Irene’s notice of election and for a declaration that she was not entitled to an elective share of the decedent’s estate. John alleged that Irene was represented by counsel at the time she freely entered into the prenuptial agreement, pursuant to which she waived her right to assert an elective share against the decedent’s estate. He also alleged that Irene was knowledgeable about the decedent’s assets and had reasonable and sufficient time to make inquiries about his finances if she wished to do so prior to entering into the prenuptial agreement.John asserted that Irene accepted the benefits of the prenuptial agreement during the marriage without ever raising questions about its validity or fairness. Thus, he claimed, she was barred by the doctrine of laches from contesting the terms of the prenuptial agreement.John contended that Irene received substantial benefits from the decedent under the will, which included a possessory interest in the Somers condominium, with a date-of-death value of $628,285, and its contents (appraised value of $29,660); a 50 percent interest in the Vero Beach condominium, having a 50 percent date-of-death value of $275,000, and its contents; sole interest in an IRA, having a principal value of $116,497; an annuity having a principal balance at death of $129,004; lifetime benefits from a charitable remainder trust benefitting Williams College, having a date-of-death principal value of $131,129; an automobile valued at $10,500; and a 50 percent interest in a boat valued at $1,250 at the time of the decedent’s death.E. Answer and_ObjectionsIn her answer and objections to the petition, Irene admitted that she signed the agreement, but denied that either her signature or the decedent’s signature was duly acknowledged in accordance with applicable statutes. As for Jacobsen’s representation of her at the time the prenuptial agreement was executed, she admitted that Jacobsen was known to her by virtue of his prior representation of her regarding the settlement of her first husband’s estate.For her first affirmative defense and objection, Irene asserted that the prenuptial agreement was defective, invalid, and unenforceable pursuant to Galetta v. Galetta (21 NY3d 186), because the acknowledgments omitted language expressly stating that the notaries knew the signers or had ascertained, through some sort of proof, that the signers were the persons described as required by Domestic Relations Law §236(B)(3).2II.A. Irene’s Motion_to Dismiss_the PetitionIrene moved pursuant to CPLR 3211(a)(1) and Domestic Relations Law §236(B)(3) to dismiss the petition to set aside her notice of election on the basis that the acknowledgment of the signatures accompanying the prenuptial agreement omitted required language. In her affidavit in support of the motion, Irene recalled that she retained Jacobsen, whom she had used to handle the estate of her first husband.B. John’s OppositionIn opposition to Irene’s motion, John argued that the form of the 1984 acknowledgments was proper and complied with the then-applicable requirements of EPTL 5-1.1, and substantially complied with the current requirements for acknowledgments through the use of the phrase “personally appeared.” John contended that the phrase “personally appeared” reflected that the signer was “known” to the notary.In any event, John noted that the two notaries, Jacobsen and Donovan, submitted affidavits stating that they respectively knew Irene and the decedent at the time that the agreement was executed and pointed out that Irene, in her answer and supporting affidavit, admitted that she signed the agreement and knew Jacobsen from his representation of her as the co-executor of her first husband’s estate and had retained him to represent her with respect to the prenuptial agreement. John claimed that if there had been any technical defect with respect to the acknowledgments, the Jacobsen and Donovan affidavits cured those defects.3In further opposition to Irene’s motion, John submitted Donovan’s affidavit, sworn to February 26, 2015. Donovan stated that, in 1984, he was a partner at Rogers & Wells, of which the decedent was also a partner. He recalled taking the acknowledgment that appeared on page two of the prenuptial agreement and stated that the decedent “did not have to provide me with any identification of who he was because he was well known to me at the time.”John also submitted Jacobsen’s affidavit, sworn to February 25, 2015, in opposition to Irene’s motion. Jacobsen stated that, in 1984, he was an attorney with Spengler Carlson Gubar Brodsky & Frischling, which had represented the estate of Irene’s first husband, of which Irene was the co-executor. He recalled that he took the acknowledgment of Irene which appeared on page two of the prenuptial agreement. He explained that Irene did not have to provide identification to him since she was known to him at the time.C. The Order_Appealed FromIn an order dated June 23, 2015, the Surrogate’s Court denied Irene’s motion. The court stated that:“Giving [John] every favorable inference, the court finds that [Irene] has failed to sustain her burden of demonstrating that the facts as plead[ed] by [John] do not fit within any recognized legal theory, the Court of Appeals having specifically left open the question whether a defective acknowledgment can be cured as set forth in Galetta v. Galetta, 21 NY3d 186.”Irene appeals from this order denying her motion.III.A. The Parties’_Contentions on_AppealIrene contends that, in Galetta, the Court of Appeals viewed the language in an acknowledgment in which a notary states that he or she knew the signer or ascertained his or her identity through some form of proof as a core component of a valid acknowledgment. She argues that the absence of such language in both acknowledgments in the subject prenuptial agreement rendered the agreement defective. She maintains that, pursuant to Galetta, this is so even in the absence of fraud, duress, or inequity.Irene contends that the holding in Galetta is consistent with a prior decision of the Court of Appeals in which the Court found that Domestic Relations Law §236(B)(3) recognizes no exception to the requirements that there be a proper acknowledgment (see Matisoff v. Dobi, 90 NY2d 127). She notes that, in Matisoff, the Court of Appeals stated that the legislative history and related statutory provisions established that the Legislature did not intend for the formality of acknowledgments to be expendable or ignored.Irene further asserts that the importance of uniformity and predictable enforcement mandates that prenuptial agreements which do not include proper acknowledgments are not valid. She claims that, as a matter of public policy, courts should not allow parties the ability to cure defective acknowledgments because to do so would dilute the statute.Irene also contends that this Court, in D’Elia v. D’Elia (14 AD3d 477), rejected a party’s ability to cure a defective acknowledgment. She asserts that the First and Fourth Departments have also found that a defective acknowledgment cannot be fixed at a later point in time.In response, John argues that the situations presented in Matisoff and Galetta are different from this matter in that those cases involved matrimonial actions involving two living parties as opposed to the case at bar, an estate proceeding commenced after one of the parties to the prenuptial agreement had died. John contends that neither Galetta nor D’Elia holds that a technical defect in a contemporaneous acknowledgment cannot be cured.John notes that, in Matisoff, the prenuptial agreement was not acknowledged at all, which was also the situation in the First and Fourth Department cases cited by Irene. He points out that here, Irene and the decedent were represented by counsel and there were contemporaneous acknowledgments of the properly executed prenuptial agreement. As a result, he maintains that Matisoff is not similar to the case at bar since, here, there would be no need for a new acknowledgment of the agreement in order to validate it.John further maintains that Galetta does not establish a bright-line rule prohibiting a defective acknowledgment from being cured. He points out that, in Galetta, the notary’s affidavit submitted by the party seeking to cure the defect was deficient since the notary did not personally know the party whose acknowledgment he took and the notary could not categorically swear that he was certain he took the appropriate steps to ascertain the identity of the party acknowledging the agreement. Also, the notary could only swear that he recognized his own signature, that he was employed at a bank at the time he executed the acknowledgment, and that he presumed that he followed his usual course and practice in taking acknowledgments although he had no independent memory of it.John points out that both Donovan and Jacobsen swore that they each personally knew the parties whose acknowledgment they took when the prenuptial agreement was executed in 1984. Jacobsen had previously represented Irene prior to representing her in connection with the execution of the prenuptial agreement and Donovan was a law partner of the decedent.John maintains that Irene failed to meet her burden in demonstrating that the facts set forth in the petition did not fall within any recognized legal theory. He further maintains there is a strong public policy allowing individuals to decide their marital affairs through agreements.In reply, Irene states that “prior to the enactment of the Domestic Relations Law in 1980, the validity of an antenuptial agreement was determined by the Statute of Frauds.” Citing Matisoff, she notes that the Legislature, in enacting Domestic Relations Law §236(B)(3), decided to create a more onerous requirement in order for a nuptial agreement to be enforceable. She maintains that, given this background, courts should not dispense with the substantive statutory requirements constituting a valid acknowledgment, as this Court recognized in D’Elia.Irene contends that the factual differences between this proceeding and those presented in Matisoff and Galetta do not matter, since the issue in all three cases is whether there is a bright-line test versus a flexible rule in construing the requirements of Domestic Relations Law §236(B)(3). She maintains that these cases demonstrate that there is a bright-line rule.B. Analysis1. CPLR_3211(a) “On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff’s allegations are accepted as true and accorded the benefit of every possible favorable inference” (Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 996; see Leon v. Martinez, 84 NY2d 83, 87).“A motion to dismiss a complaint based on documentary evidence ‘may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law’” (Stein v. Garfield Regency Condominium, 65 AD3d 1126, 1128, quoting Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see CPLR 3211[a][1]; Held v. Kaufman, 91 NY2d 425, 430-431; Parekh v. Cain, 96 AD3d 812, 815; Sato Constr. Co., Inc. v. 17 & 24 Corp., 92 AD3d 934, 935-936). To qualify as documentary evidence, the evidence “must be unambiguous and of undisputed authenticity” (Fontanetta v. John Doe 1, 73 AD3d 78, 86; see Flushing Sav. Bank, FSB v. Siunykalimi, 94 AD3d 807, 808; Granada Condominium III Assn. v. Palomino, 78 AD3d at 997).“[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are ‘essentially undeniable,’ would qualify as ‘documentary evidence’ in the proper case” (Fontanetta v. John Doe 1, 73 AD3d at 84-85, quoting David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10 at 21-22 [2005]; see Datena v. JP Morgan Chase Bank, 73 AD3d 683, 685 [deed]; Bronxville Knolls v. Webster Town Ctr. Partnership, 221 AD2d 248 [mortgage and note]).“In opposition to a motion pursuant to CPLR 3211(a), a plaintiff may submit affidavits ‘to preserve inartfully pleaded, but potentially meritorious claims’” (Raach v. SLSJET Mgt. Corp., 134 AD3d 792, 794, quoting Rovello v. Orofino Realty Co., 40 NY2d 633, 635; see CPLR 3211[a][7]; Town of Huntington v. Long Is. Power Auth., 130 AD3d 1013, 1015).2. AcknowledgmentsDomestic Relations Law §236(B)(3) provides, in part, that “[a]n agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” (Matisoff, 90 NY2d at 130-131; see EPTL 5-1.1-A[e][2]).4 Such agreement may include “a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will” (Domestic Relations Law §236[B][3]).A proper acknowledgment requires both an oral declaration by the signer of the document made before an authorized officer and a written certificate of acknowledgment, attached to the agreement, endorsed by an authorized public officer attesting to the oral declaration (see Real Property Law §306; Matisoff, 90 NY2d at 137-138; Matter of Henken, 150 AD2d 447, 447; see also General Construction Law §11). Thus, an instrument is not duly acknowledged unless there is a written certificate as well as an oral acknowledgment (see Rogers v. Pell, 154 NY 518; Matter of Abady, 76 AD3d 525, 526-527). However, “there is no requirement that a certificate of acknowledgment contain the precise language set forth in the Real Property Law. Rather, an acknowledgment is sufficient if it is in substantial compliance with the statute” (Weinstein v. Weinstein, 36 AD3d 797, 798; see Matter of Abady, 76 AD3d at 526).Pursuant to Real Property Law §309-a(1), “[t]he certificate of an acknowledgment, within this state, of a conveyance or other instrument in respect to real property situate in this state, by a person, must conform substantially with the following form, the blanks being properly filled.” The certificate of an acknowledgment form appears in the statute as follows:“State of New York) ) ss.:County of… ) On the… day of… in the year… before me, the undersigned, personally appeared… , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.(Signature and office of individual taking acknowledgment.)” (Real Property Law §309-a[1] [emphasis added]).The acknowledgment requirement fulfills two goals. First, it “serves to prove the identity of the person whose name appears on an instrument and to authenticate the signature of such person” (Matisoff, 90 NY2d at 133; see Galetta, 21 NY3d at 191-192). Second, it imposes on the person signing a “measure of deliberation in the act of executing the document” (Galetta, 21 NY3d at 192). When there is no acknowledgment at all, this second requirement has not been fulfilled (see id. at 196).3. Curability of_Acknowledgment DefectAt the outset, John is correct that Matisoff is not controlling here. Matisoff does not provide support for Irene’s position that the defective certificates of acknowledgment utterly refute the allegations in the petition that she is not entitled to an elective share of the decedent’s estate due to the waiver set forth in the prenuptial agreement.In Matisoff, a case involving a postnuptial agreement in which the parties waived any rights of election provided by the EPTL, “it [wa]s undisputed… that the document was not acknowledged by the parties or anyone else” (90 NY2d at 130).The case at bar differs from Matisoff since here, there were certificates of acknowledgment of the signatures of Irene and the decedent, albeit the certificates did not contain the required language for acknowledgment as currently required by the Real Property Law. Similarly, Irene’s reliance on D’Elia is misplaced since the agreement in that case was not at all acknowledged at the time of execution. Thus, this Court’s statement in D’Elia that “[i]t is uncontroverted that the parties’ postnuptial agreement was not properly acknowledged at the time that it was executed” (14 AD3d at 478) was not referring to a defective acknowledgment, as occurred here, but instead, to the absence of any acknowledgment, presenting this Court with the same situation which arose in Matisoff (see e.g. Ballesteros v. Ballesteros, 137 AD3d 722, 723 [the "Promissory Note," drafted by the wife in 2009, after the parties were married, pursuant to which the husband agreed to purchase a condominium for the wife in the event that they divorced, was unenforceable since the "Promissory Note" was an agreement between spouses, which did not have a certificate of acknowledgment attached to it although the husband had the document signed by a notary]). In that vein, Irene’s reliance on First and Fourth Department cases is also unavailing, as those cases are distinguishable for the same reason (see Filkins v. Filkins, 303 AD2d 934, 934 ["It is undisputed that no written certificate of acknowledgment was attached when the parties entered into the agreement in 1995"]; Schoeman, Marsh & Updike v. Dobi, 264 AD2d 572, 573 [legal malpractice counterclaim related to the Matisoff matrimonial action]; cf. Anonymous v. Anonymous, 253 AD2d 696, 697 [the First Department found that the Supreme Court erred in granting renewal to the husband with respect to the wife's prior motion to declare a prenuptial agreement to be unenforceable, due to the husband's failure to submit an acknowledgment with the agreement, where the husband could have submitted the certificate of acknowledgment on the prior motion. Moreover, the First Department questioned the appearance of the "alleged acknowledgment in affidavit form which was executed and which surfaced some 12 years after the fact in the midst of a contested matrimonial action in light of the required formalities of Domestic Relations Law §236(B)(3)"]).Here, given the presence of executed acknowledgments, admittedly without certain language required by the Real Property Law, rather than an absence of any acknowledgment at all, the decision in Galetta is more on point and instructive than Matisoff and D’Elia with respect to the issue at bar. Further, the Surrogate’s Court correctly found that the Court of Appeals, in Galetta, left open the issue of whether a defective acknowledgment can be cured.In Galetta, the parties executed a prenuptial agreement before different notaries at different times one week before their wedding took place in July 1997 (21 NY3d at 189). As here, it was undisputed that the signatures on the document were authentic and there was no claim that the agreement was procured through fraud or duress (see id. at 189-190).The certificate of acknowledgment relating to the wife’s signature contained the proper language (see id. at 190). However, in the acknowledgment relating to the husband’s signature, the certificate failed to indicate that the notary “confirmed the identity of the person executing the document or that the person was the individual described in the document” (id.). The husband filed for divorce and the wife separately filed for divorce and for a declaration that the prenuptial agreement was unenforceable (see id.).The wife moved for summary judgment on her cause of action seeking declaratory relief, contending that the agreement was invalid because the certificate of acknowledgment relating to the husband’s signature did not comport with the Real Property Law requirements. The husband opposed the motion on the basis that the language of the acknowledgment substantially complied with the Real Property Law. He also submitted an affidavit from the notary who had witnessed his signature in 1997 and executed the certificate of acknowledgment (see id.). ”The notary, an employee of a local bank where the husband then did business, averred that it was his custom and practice, prior to acknowledging a signature, to confirm the identity of the signer and assure that the signer was the person named in the document. He stated in the affidavit that he presumed he had followed that practice before acknowledging the husband’s signature” (id. [emphasis added]).The Supreme Court denied the wife’s motion, finding that the acknowledgment substantially complied with the requirements of the Real Property Law. A divided Fourth Department affirmed the order albeit on the different ground that, although the acknowledgment was defective, the deficiency could be cured after the fact and that the notary’s affidavit raised a triable issue of fact as to whether the agreement had been properly acknowledged when executed (see 96 AD3d 1565, revd 21 NY3d 186).5With respect to the issue of whether the certificate of acknowledgment accompanying the husband’s signature was defective, the Court of Appeals determined that without stating “‘to me known and known to me,’” the certificate failed to indicate either that the notary knew the husband or had ascertained through some form of proof that the husband was the person described in the prenuptial agreement (21 NY3d at 193). The Court noted that:“At the time the parties here signed the prenuptial agreement in 1997, proper certificates of acknowledgment typically contained boilerplate language substantially the same as that included in the certificate accompanying the wife’s signature: ‘before me came (name of signer) to me known and known to me to be the person described in and who executed the foregoing instrument and duly acknowledged to me that s/he executed the same’” (id. [footnote omitted]).The Court pointed out that the “‘to me known and known to me to be the person described in the document’” language “satisfied the requirement that the official indicate that he or she knew or had ascertained that the signer was the person described in the document” (id.). It also observed that “[t]he clause beginning with the words ‘and duly acknowledged’ established that the signer had made the requisite oral declaration” (id.). Given the failure to include this language in the acknowledgment of the husband’s signature, the Court of Appeals agreed with the Fourth Department that the acknowledgment did not conform with statutory requirements (see id. at 194).Since the Court of Appeals determined that the certificate was defective, it then turned to address the question of “whether such a deficiency can be cured and, if so, whether the affidavit of the notary public prepared in the course of litigation was sufficient to raise a question of fact precluding summary judgment in the wife’s favor” (id.). However, in looking at the proof submitted by the husband, the Court of Appeals stated that it “need not definitively resolve the question of whether a cure is possible because, similar to what occurred in Matisoff, the proof submitted here was insufficient” (id. at 197).The Court of Appeals analyzed in detail the affidavit of the notary submitted by the husband in opposing the wife’s summary judgment motion. The Court pointed out that the notary only recognized his own signature and had no independent recollection of notarizing the subject document (see id.). Given these statements, the Court found that the husband could not rely on the notary’s custom and practice to fill in the evidentiary gaps because “the averments presented by the notary public in this case [we]re too conclusory to fall into this category” (id.).6Further, the Court stated that if the notary had recalled acknowledging the husband’s signature, “he might have been able to fill in the gap in the certificate by averring that he recalled having confirmed [the husband's] identity, without specifying how” (id. at 198). However, since the notary did not recall acknowledging the husband’s signature and was attempting to rely on custom and practice evidence, the Court stated that “it was crucial that the affidavit describe a specific protocol that the notary repeatedly and invariably used—and proof of that type is absent here” (id.).The situation at bar is akin to the hypothetical described by the Court of Appeals in Galetta, where the notaries here, the decedent’s law partner and Irene’s attorney, actually recalled acknowledging the signatures at issue. In such a situation, the Court of Appeals explained that the confirmation of the identity of the signer, through an affidavit, is sufficient without having to explain how the identity was confirmed (see id.).Although, in support of her motion, Irene submitted the prenuptial agreement with the defective acknowledgments to demonstrate that the agreement was invalid, the Surrogate’s Court properly declined to dismiss the petition on the basis of documentary evidence in light of John’s submission in opposition to her motion. To supplement the allegations of the petition, in opposition, John submitted affidavits which showed that the petition may be meritorious in spite of the documentary evidence. In response to the assertion that the prenuptial agreement was invalid as improperly acknowledged, the affidavits of Donovan and Jacobsen specifically stated that each observed the document being signed, took the acknowledgment in question, and personally knew the individual signer signing before him. In so doing, the defect in the acknowledgment was cured in order to give vitality to the expressed intent of the parties set forth in the prenuptial agreement.Accordingly, the Surrogate’s Court properly denied Irene’s motion pursuant to CPLR 3211(a)(1) and Domestic Relations Law §236(B)(3) to dismiss the petition. Therefore, the order is affirmed.LEVENTHAL, J.P., CHAMBERS and LASALLE, JJ., concur.ORDERED that the order is affirmed, with costs.By Dillon, J.P.; Austin, Hinds-Radix and Maltese, JJ.MATTER of Frank H. Banks, res, v. Tina Marie Stanford, etc., ap — (Index No. 2456/14)APPEAL by Tina Marie Stanford, as the Chairperson of the State Board of Parole, in a proceeding pursuant to CPLR article 78 to review a determination of the New York State Board of Parole dated July 30, 2014, which, after a parole release review and interview pursuant to Executive Law §259-i, denied the petitioner’s request to be released on parole, as limited by her brief, from so much of an order of the Supreme Court (Victor G. Grossman, J.) dated December 2, 2015, and entered in Putnam County, as granted the petitioner’s motion to hold her in civil contempt for failure to comply with a judgment of the same court dated May 14, 2015.Eric T. Schneiderman, Attorney General, New York, NY (Anisha S. Dasgupta and Philip V. Tisne of counsel), for appellant.Frank H. Banks, Otisville, NY, respondent pro se.DILLON, J.P. This is an appeal from an order holding the Chairperson of the New York State Board of Parole (hereinafter the Board) in civil contempt for the manner in which the Board proceeded after the Supreme Court remitted the matter for a “de novo hearing.” In determining this appeal, we are called upon to define and clarify the distinction in Executive Law §259-i between a parole “hearing” and a parole “interview.”I. FactsThe petitioner, Frank H. Banks, was convicted on February 26, 1987, in the Supreme Court, Kings County (Pincus, J.), of murder in the second degree, manslaughter in the first degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree. The convictions arose out of an incident which had occurred three years earlier, in which the petitioner and others committed an attempted armed robbery of a taxi dispatch garage. During the attempted robbery, the petitioner and his accomplices ordered the garage employees to lie on the floor, and several gunshots were fired. When a 60-year-old garage employee attempted to resist, the petitioner shot him in the stomach “at point blank range,” killing him. The petitioner and his accomplices fled the scene in a vehicle that almost ran down a sanitation worker when it mounted a sidewalk in an attempt to bypass a garbage truck. A license plate number was taken, which helped lead to the petitioner’s arrest.The petitioner committed the attempted robbery to support what he later described as a “gambling fetish.” He had previously been convicted of various crimes, including criminal possession of a weapon in the fourth degree in 1981, attempted grand larceny in the third degree in 1982, and criminal possession of a weapon in the third degree in 1983. As relevant here, the petitioner was sentenced by the Supreme Court to a term of imprisonment of 25 years to life for the conviction of murder in the second degree, 12 to 25 years for the conviction of manslaughter in the first degree, 7 to 15 years for the conviction of attempted robbery in the first degree, and 7 to 15 years for the conviction of criminal possession of a weapon in the second degree. The sentences for manslaughter, attempted robbery, and criminal possession of a weapon ran consecutively to one another, and all ran concurrently with the sentence for murder in the second degree. Upon the defendant’s appeal from the judgment of conviction, this Court modified the judgment to the limited extent of providing that all sentences were to run concurrently with each other (see People v. Banks, 208 AD2d 759). In doing so, this Court explained that the petitioner’s criminal possession of a gun immediately prior to the shooting did not establish sufficient proof of a separate and distinct act as to justify the imposition of consecutive sentences (see id. at 760). This Court denied the petitioner’s subsequent application for a writ of error coram nobis, holding that he had failed to establish that he was denied the effective assistance of appellate counsel (see People v. Banks, 234 AD2d 377).The record indicates that the petitioner first became eligible for parole release in 2010, and his application was denied on July 21, 2010. The petitioner’s second application for parole was denied in July 2012.On July 29, 2014, the petitioner appeared before the Board of Parole on his third parole application interview. On July 30, 2014, the Board denied the petitioner’s third application for parole release. The Board’s written decision stated that it had conducted a careful review of the record and interview, and that the petitioner’s “release would not be compatible with the welfare of society.” The Board noted the “heinous nature” of the crimes, which caused the death of the victim and reflected “a propensity for violence and a callous disregard for the sanctity of human life.” The Board further explained that it had considered all required statutory parole factors, including risk to the community, rehabilative efforts, needs for successful reintegration into society, institutional adjustment, community support, and community opposition. The Board concluded that despite the petitioner’s positive efforts while incarcerated, his release would undermine respect for the law and trivialize the loss of life he had caused.In August 2014, the petitioner filed an administrative appeal. The Appeals Unit did not decide the appeal within four months of its receipt of the notice of appeal. Thus, the petitioner sought judicial review of the determination dated July 30, 2014.By order to show cause dated December 12, 2014, and verified petition dated December 8, 2014, the petitioner commenced a proceeding pursuant to CPLR article 78 to annul the Board’s determination and to direct the Board to conduct a de novo parole release hearing. The petitioner argued that the Board’s decision was arbitrary and capricious, that it failed to explain how his release would be incompatible with the welfare of society, and that it did not explain how his release would trivialize the loss of life.In her verified answer, dated January 30, 2015, Tina Marie Stanford, the Board’s Chairperson, maintained that the Board properly considered all required statutory factors and did not act arbitrarily or capriciously. Alternatively, Stanford argued that if the Board’s decision met the legal standard of irrationality bordering on impropriety, the petitioner’s remedy was not a judicial determination granting parole, but rather, “a de novo parole interview.”In a judgment dated May 14, 2015, the Supreme Court granted the CPLR article 78 petition. The court determined that the Board’s decision to deny parole to the petitioner was arbitrary and capricious, irrational, and improper, primarily because it relied solely and conclusorily upon the nature of the underlying offenses. As particularly relevant here, the court’s decretal paragraph “ORDERED that the matter [be] remitted to Stanford for a de novo hearing on the matter of Petitioner’s release to parole supervision.”On July 28, 2015, the Board did not conduct a de novo evidentiary “hearing.” There was instead a de novo “interview” of the petitioner and his record was re-examined. The transcript of the interview is ten pages in length. During the course of the interview, the petitioner had an opportunity to discuss his lack of disciplinary history since 2005, his prospects for future employment if granted parole, his interest in religion, his education and aggression replacement training while incarcerated, the crimes underlying his convictions, his COMPAS Risk Assessment, his 2010 Quantitative Profile, and his remorse for the 1987 murder.An oral decision, once again denying parole, was placed on the record at the conclusion of the de novo interview. Thereafter, in a written decision dated September 14, 2015, the Board explained that parole was not merely a reward for good behavior and accomplishments while in prison, which it noted were factors in the petitioner’s favor. The Board found that the petitioner’s crimes represented an escalation of his history of criminal activity, and reiterated its prior finding that a parole release would trivialize the gravity of harm inflicted upon the victim and his family, and be incompatible with the welfare of society.On August 27, 2015, after the Board had rendered its oral decision denying parole, the petitioner moved to hold Stanford in contempt for failing to comply with the May 14, 2015, judgment. The petitioner primarily argued that the review that was conducted pursuant to the judgment was a “sham,” in that it resulted in a decision that was conclusory and again reliant upon the nature of the underlying offenses. In opposition, Stanford argued, inter alia, that the Board fully complied with the judgment by providing a de novo interview and a fresh consideration of all relevant factors that parole boards are statutorily required to consider.In the order appealed from, dated December 2, 2015, the Supreme Court granted the petitioner’s motion, held Stanford in civil contempt, annulled the Board’s July 2015 determination, remitted the matter to Stanford for yet another de novo hearing, and imposed a fine in the sum of $250 on Stanford. The court’s focus in finding Stanford in civil contempt was different from that argued by the parties in their submissions. The court noted that in its judgment dated May 14, 2015, it had expressly directed Stanford to conduct a de novo “hearing,” and that the Board instead only provided, by its own admission, a de novo “interview.” The court stated that its direction that the petitioner receive a new “hearing” was intended to include the de novo compilation of records, reports, and recommendations addressing the prospective parolee’s suitability for release, which was not performed by the Board.For the reasons set forth below, we reverse the order appealed from and deny the petitioner’s motion to hold Stanford in civil contempt.II. The Law_of Civil_ContemptAn often-cited opinion from the Court of Appeals defining the elements of civil contempt is Matter of McCormick v. Axelrod (59 NY2d 574, amended on other grounds 60 NY2d 652), and its elements are not in dispute here. First, there must be a lawful order of the court in effect clearly expressing an unequivocal mandate. Second, it must appear with reasonable certainty that the court’s mandate has been disobeyed. Third, the party to be held in contempt must have had knowledge of the court’s order. And fourth, the violation of the court’s order must be shown to impede, impair, or prejudice the rights of another party (see id. at 583; see also Judiciary Law §753[A][3]; El-Dehdan v. El-Dehdan, 26 NY3d 19, 29; McCain v. Dinkins, 84 NY2d 216, 226; Suiss v. Baron, 107 AD3d 690, 690-691; Bennet v. Liberty Lines Tr., Inc., 106 AD3d 1038, 1040; Gomes v. Gomes, 106 AD3d 868, 868-869; GMCK Realty, LLC v. Mihalatos, 95 AD3d 947, 949). The aim of civil contempt is to vindicate a party’s right to the benefits of a judicial mandate or to compensate that party for the interference by the contemnor (see McCain v. Dinkins, 84 NY2d at 226; Matter of McCormick v. Axelrod, 59 NY2d at 583; State of New York v. Unique Ideas, 44 NY2d 345, 349; Dalessio v. Kressler, 6 AD3d 57, 65). The party seeking a finding of contempt bears the burden of proving its elements by clear and convincing evidence (see El-Dehdan v. El-Dehdan, 26 NY3d at 29; Cassarino v. Cassarino, 149 AD3d 689; Scialdone v. Stepping Stones Assoc., L.P., 148 AD3d 955; Matter of Fitzgerald, 144 AD3d 906, 907; Maddaloni v. Maddaloni, 142 AD3d 646, 654; Matter of Cassidy v. New York State Bd. of Parole, 140 AD3d 953, 954-955).Stanford argues that the Supreme Court failed to define, in its judgment dated May 14, 2015, what it meant by the term “de novo hearing,” and that if the court intended to direct a quasi-judicial evidentiary hearing rather than a new parole “interview” with a re-examination of records, it should have said so. In effect, Stanford argues that the judgment she was found to have violated was neither clear nor unambiguous as to the act which was the predicate for the finding of contempt.Stanford also argues that, in any event, there was no violation of the Supreme Court’s judgment in the first instance. After the court remitted the matter, the Board updated the petitioner’s file with the results of a new COMPAS instrument assessment and additional letters supporting his application. It sought victim impact statements, and it compiled the petitioner’s various records, reports, and recommendations. The Board conducted a de novo interview, which it explained to the petitioner was a “do over,” and told him that it would assess his suitability for release based upon the updated information. The Board ultimately concluded, inter alia, that the seriousness of the murder committed by the petitioner outweighed his personal growth and productive use of time while imprisoned. Therefore, Stanford urges that the Board provided the petitioner with everything that it understood the court to have directed in the judgment dated May 14, 2015.For his part, the petitioner argues that the Board failed to provide him a fair and impartial de novo hearing, as the Supreme Court had given a clear and unequivocal mandate to hold a “hearing” and the Board failed to do so by conducting a mere “interview.”The parties never specifically argued before the Supreme Court the issue of whether the Board’s conduct of a de novo “interview” was substantively or procedurally different from the “hearing” ordered by the court. However, in the order appealed from, the court clearly used the distinction between an “interview” and a “hearing” as the basis for its contempt finding against Stanford. As such, the issue is properly before us on this appeal (see Tirado v. Miller, 75 AD3d 153, 161).III. The Requirements_of Executive_Law_§_259-iThe Board’s release decisions are discretionary, and if made in accordance with statutory requirements, they are not subject to judicial review (see Executive Law §259-i[5]; Matter of Wade v. Stanford, 148 AD3d 1487; Matter of Almonte v. New York State Bd. of Parole, 145 AD3d 1307; Matter of Kirkpatrick v. Travis, 5 AD3d 385; Matter of Wright v. Travis, 284 AD2d 544; Matter of Secilmic v. Keane, 225 AD2d 628, 628-629; Matter of Macon v. New York State Bd. of Parole, 176 AD2d 880; People ex rel. Herbert v. New York State Bd. of Parole, 97 AD2d 128, 133). For this reason, judicial review of parole board determinations is narrowly circumscribed (see Matter of Briguglio v. New York State Bd. of Parole, 24 NY2d 21, 29; Matter of Esquilin v. New York State Bd. of Parole, 144 AD3d 797; Matter of Sellers v. Stanford, 144 AD3d 691, 692; Matter of Huntley v. Stanford, 134 AD3d 937; Matter of Marszalek v. Stanford, 124 AD3d 665; Matter of Hardwick v. Dennison, 43 AD3d 406, 407). A parole determination may be set aside only where the Board’s determination to deny an early release evinces “irrationality bordering on impropriety” (Matter of Russo v. New York State Bd. of Parole, 50 NY2d 69, 77; see also Matter of Silmon v. Travis, 95 NY2d 470, 476; Matter of LeGeros v. New York State Bd. of Parole, 139 AD3d 1068, 1069; Matter of Jackson v. Evans, 118 AD3d 701, 702; Matter of Goldberg v. New York State Bd. of Parole, 103 AD3d 634; Matter of Stanley v. New York State Bd. of Parole, 92 AD3d 948, 949; Matter of Duffy v. New York State Div. of Parole, 74 AD3d 965, 966; Matter of Martinez v. New York State Div. of Parole, 73 AD3d 1067).Executive Law §259-i is entitled “Procedures for the conduct of the work of the state board of parole.” The grant or denial of parole in any given instance involves the interplay of subdivisions (2)(a)(i), (2)(c), and (6) of Executive Law §259-i, each of which is quoted here seriatim:Executive Law §259-i(2)(a)(i) provides, in relevant part, that:“[e]xcept as provided in subparagraph (ii) of this paragraph, at least one month prior to the date on which an inmate may be paroled pursuant to subdivision one of section 70.40 of the penal law, a member or members as determined by the rules of the board shall personally interview such inmate and determine whether he should be paroled in accordance with the guidelines adopted pursuant to subdivision four of section two hundred fifty-nine-c of this article. If parole is not granted upon such review, the inmate shall be informed in writing within two weeks of such appearance of the factors and reasons for such denial of parole. Such reasons shall be given in detail and not in conclusory terms. The board shall specify a date not more than twenty-four months from such determination for reconsideration, and the procedures to be followed upon reconsideration shall be the same” (emphasis added).Executive Law §259-i(2)(c)(A) provides, in relevant part, that:“Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for law. In making the parole release decision, the procedures adopted pursuant to subdivision four of section two hundred fifty-nine-c of this article shall require that the following be considered: (i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interactions with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate… ; (vii) the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court… (viii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement.”Executive Law §259-i(6)(a)(i), entitled “Record of proceedings,” provides, in relevant part, that:“The board shall provide for the making of a verbatim record of each parole release interview, except where a decision is made to release the inmate to parole supervision” (emphasis added).Notably, Executive Law §259-i(2)(a)(i) and (6)(a)(i) make reference to the conduct of a parole “interview” and the making of a record of each parole release “interview.” The term “hearing” is not used in the enabling statute for parole release determinations. Rather, the term “hearing” is only used in the statutory context of parole revocations under Executive Law §259-i(3)(c)(i) et seq., which is not at issue here. Accordingly, when the Supreme Court granted the petitioner’s article 78 petition to the extent of directing that de novo proceedings be conducted at the Board, it had no statutory authority to direct the conduct of any quasi-judicial “hearing,” and only had the statutory authority to direct that the Board provide a de novo “interview” in accordance with Executive Law 259-i(2)(a)(i).Our construction of the Executive Law is consistent with the reasoning of the Court of Appeals set forth in Matter of Briguglio v. New York State Bd. of Parole (24 NY2d 21). There, the Court of Appeals held that an inmate seeking parole release was not entitled to a “full adversary-type hearing” (id. at 28), as “there is simply no constitutional basis for applying the guarantees of the due process clause to a parole release proceeding” (id. at 26). It explained that parole is not constitutionally based, but is a creature of statute which may be subject to conditions imposed by the state legislature (see id.; see also Matter of Cummings v. Regan, 45 AD2d 415, 416-417, revd on other grounds 36 NY2d 969; Menechino v. Oswald, 430 F2d 403, 407 [2d Cir]). A proceeding to determine whether an inmate should be released on parole is also not a quasi-judicial hearing (see Matter of Hamilton v. New York State Div. of Parole, 119 AD3d 1268, 1270 n 1). In contrast, where the actual revocation of parole is at issue, the right of an individual to continue at liberty is placed in jeopardy. Thus, the parolee is entitled to the panoply of due process rights afforded by article 1, section 6, of the New York State Constitution, including that of a full evidentiary hearing and representation by counsel (see Matter of Lopez v. Evans, 25 NY3d 199, 205; People ex rel. Matthews v. New York State Div. of Parole, 58 NY2d 196, 203-204; People ex rel. Menechino v. Warden, Green Haven State Prison, 27 NY2d 376, 382).That said, a parole “interview” cannot be understood as merely consisting of a mere face-to-face appearance by the inmate before the parole board. The term has broader application, as it speaks to a process that statutorily requires consideration of a panoply of materials including the inmate’s institutional record of goals, accomplishments, academic achievements, vocational education, training, or work assignments; performance evaluations from any temporary release program; available post-release community resources, employment, education, training, and support services; crime victim statements; the considerations relevant at the time of sentencing; and the inmate’s criminal history (see Executive Law §259-i[2][c]). When an inmate petitioner is entitled to a new “interview” as a result of a successful article 78 challenge, the inmate must then be afforded the full evaluative process described by Executive Law §259-i(2)(c).Here, the authority and propriety of the Supreme Court’s judgment dated May 14, 2015, is not at issue, as the court simply made a determination in the CPLR article 78 proceeding, and the judgment was never reargued or appealed (see Rubeo v. National Grange Mut. Ins. Co., 93 NY2d 750, 753-754; Bray v. Cox, 38 NY2d 350, 353). This appeal is limited to the order dated December 2, 2015, granting the petitioner’s motion to hold Stanford in contempt on the ground that the Board failed to comply with the judgment dated May 14, 2015. Pursuant to the relevant provisions of the Executive Law governing the Board’s procedures, we conclude that the court was without authority to order a de novo evidentiary “hearing,” as the petitioner was only entitled to a de novo parole release “interview” and review (see Executive Law §259-i[2][a][i]). Applying our well-established contempt jurisprudence, it cannot be said that the language employed in the judgment dated May 14, 2015, was clear and unambiguous since the Board could have reasonably understood and interpreted the judgment as directing it to conduct a de novo interview consistent with the requirements of the controlling statutory language. Contempt findings are inappropriate where, as here, there can be a legitimate disagreement about what the terms of an order or judgment actually mean (see Cervera v. Bressler, 109 AD3d 779, 780; Penavic v. Penavic, 88 AD3d 671, 673; Chambers v. Old Stone Hill Rd. Assoc., 66 AD3d 944, 946; Matter of King v. King, 249 AD2d 395, 396). The Board endeavored to comply with the judgment dated May 14, 2015, by providing a de novo parole release interview with a reconsideration of the petitioner’s record consistent with its statutory mandate under the Executive Law and consistent with its common practices. Thus, one of the necessary elements of civil contempt is lacking (see O’Brien v. O’Brien, 115 AD3d 720, 724; Palladino v. Palladino, 89 AD3d 814, 815; Collins v. Telcoa Intl. Corp., 86 AD3d 549, 550; Massimi v. Massimi, 56 AD3d 624, 624-625).If, as we suspect, the parlance of the legal community sometimes uses the terms “interview” and “hearing” interchangeably in the context of parole release matters, it should do so no longer. Decisions from trial and appellate courts have likewise inartfully confused the two terms, frequently referring to parole release “hearings,” though not meant in the sense of adversarial proceedings (see Silmon v. Travis, 95 NY2d at 473; Matter of Bush v. Annucci, 148 AD3d 1392, 1393; Matter of Rossakis v. New York State Bd. of Parole, 146 AD3d 22, 25; Matter of Cassidy v. New York State Bd. of Parole, 140 AD3d at 954; Matter of Fischer v. Graziano, 130 AD3d 1470; Matter of Cardew v. Fischer, 115 AD3d 1193, 1194). The term “interview” expressly applies to parole release procedures, while the term “hearing” applies to parole revocation procedures (compare Executive Law §259-i[2][a][i] and [6][a][i] with 259-i[3][c][i]). Under the circumstances of this case, the confusion engendered by the Supreme Court’s use of the incorrect terminology in its judgment dated May 14, 2015, prompted the petitioner’s later contempt application, and renders a finding of contempt against the respondent unsupportable at law.IV. Alternatively,_Under the_Circumstances,_a Finding_of Contempt_was an_Improvident Exercise_of DiscretionEvery contempt application must be decided on the basis of its own unique facts and circumstances. The question of whether to grant a motion for civil contempt, and if so, the fixing of an appropriate remedy, is addressed to the sound discretion of the motion court upon consideration of the surrounding circumstances (see Collins Telcoa Intl. Corp., 86 AD3d at 550; Matter of Philie v. Singer, 79 AD3d 1041, 1042; Bais Yoel Ohel Feige v. Congregation Yetev Lev D’Satmar of Kiryas Joel, Inc., 78 AD3d 626).Here, the circumstances surrounding the petitioner’s motion did not warrant a finding of civil contempt against Stanford, and it was an improvident exercise of discretion for the Supreme Court to have made such a finding. After receiving the judgment dated May 14, 2015, the Board retrieved the petitioner’s parole-related records, reports, and recommendations, updated the file with a new COMPAS assessment and additional letters of support, and conducted an extensive interview where the petitioner had a full and fair opportunity to address a wide variety of relevant issues. The fact that the Board ultimately decided to once again deny the petitioner’s application for parole release is of no significance here. The record reveals that the Board endeavored to comply with the May 14, 2015, judgment by providing a de novo procedure which followed the Executive Law and which resulted in a renewed consideration of the petitioner’s request for parole release.V. The Supreme_Court Exceeded_its Authority_in Annulling_the July_2015_de novo_DeterminationA court is generally limited to noticed issues that are the subject of the motion before it (see CPLR 2214[a]; DiDonato v. Dyckman, 121 AD3d 638, 640; see also Dunham v. Hilco Constr. Co., 89 NY2d 425, 429; Baron v. Brown, 101 AD3d 915; Quizhpe v. Luvin Constr., 70 AD3d 912, 914).Here, the Supreme Court, in the order appealed from, was without jurisdiction to annul the Board’s July 29, 2015, denial of parole. There is nothing in the record to indicate that the petitioner either administratively appealed from the July 29, 2015, Board determination, or commenced a separate CPLR article 78 proceeding seeking judicial review of the determination. The only application before the court was the petitioner’s motion seeking statutory remedies for contempt (see Judiciary Law §753[A]). The remedies for contempt differ from the equitable mandamus remedies available in CPLR article 78 proceedings.We need not reach the parties’ remaining contentions in light of our determination.Accordingly, the order dated December 2, 2015, is reversed, on the law, and the petitioner’s motion to hold Stanford in civil contempt for failure to comply with the judgment dated May 14, 2015, is denied.AUSTIN, HINDS-RADIX and MALTESE, JJ., concur.ORDERED that the order dated December 2, 2015, is reversed, on the law, without costs or disbursements, and the petitioner’s motion to hold Stanford in civil contempt for failure to comply with the judgment dated May 14, 2015, is denied.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.John A. McSpedon, ap, v. Linnea J. Levine, et al., res — (Index No. 61202/14)Appeals from (1) an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated April 2, 2015, (2) a judgment of that court dated April 10, 2015, (3) a judgment of that court dated April 17, 2015, (4) a judgment of that court, also dated April 17, 2015, and (5) a judgment of that court dated May 6, 2015. The order, insofar as appealed from, granted those branches of the separate motions of the defendants John L. Farrell and George J. Rozsa which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action sounding in fraud, conspiracy to commit fraud, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty insofar as asserted against each of them, respectively. The judgment dated April 10, 2015, insofar as appealed from, upon the order, dismissed the causes of action sounding in conspiracy to commit fraud and aiding and abetting breach of fiduciary duty insofar as asserted against the defendants David C. Erdos and Pamela A. Erdos. The first judgment dated April 17, 2015, insofar as appealed from, upon the order, dismissed the causes of action sounding in conspiracy to commit fraud and aiding and abetting breach of fiduciary duty insofar as asserted against the defendants Vickie R. Pierce and Leslie J. Dagnall. The second judgment dated April 17, 2015, insofar as appealed from, upon the order, dismissed the causes of action sounding in fraud, conspiracy to commit fraud, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty insofar as asserted against the defendant Linnea J. Levine. The judgment dated May 6, 2015, insofar as appealed from, upon the order, dismissed the causes of action sounding in conspiracy to commit fraud and aiding and abetting breach of fiduciary duty insofar as asserted against the defendant Nina E. Rumbold.ORDERED that the order and the judgments are affirmed insofar as appealed from, with one bill of costs payable to the defendants appearing separately and filing separate briefs.In 1976, the plaintiff’s maternal grandfather created two trusts in Connecticut, one for each of his daughters, referred to as Trust A and Trust B. The plaintiff’s mother, nonparty Diane McSpedon, is the income beneficiary of Trust A, and the plaintiff’s aunt, the defendant Leslie J. Dagnall, is the income beneficiary of Trust B. Pursuant to the terms of each trust, in the event of the death of the income beneficiary, the remaining principal of the trust was to be inherited by the income beneficiary’s children. In the event an income beneficiary died without children, the remaining principal of that trust was to flow into the other trust. Dagnall had no children. Thus, upon Dagnall’s death, the remaining principal of Trust B was to flow into Trust A, and the plaintiff and his siblings would be considered contingent beneficiaries of Trust B. Dagnall, who considered her life’s work to be her “child,” wanted the remaining principal under Trust B to be used to fund a “foundation” related to her work, and unsuccessfully sought the consent of the plaintiff and his siblings to waive their contingent beneficiary interest in Trust B in order for her to achieve her goal. Dagnall then decided to adopt a colleague who shared her passion in her field of work, the defendant Vickie R. Pierce, as a way to achieve her goal of using Trust B to fund the subject foundation. The adult adoption was achieved. However, the plaintiff, along with his siblings and mother, challenged the adult adoption in Family Court, Westchester County, on the ground that it was fraudulent. The adult adoption ultimately was vacated upon Dagnall’s consent, thereby returning the plaintiff’s interests in the subject trusts to the status quo.Nonetheless, the plaintiff commenced this action against Dagnall and Pierce, as well as the following defendants: John L. Farrell, a financial consultant who managed the money of the subject trusts; George J. Rozsa, an accountant who performed accounting services and acted as a strategic consultant for both trusts; Nina E. Rumbold, an attorney who represented Dagnall in the initial adult adoption proceeding; Linnea J. Levine, an attorney who provided legal services related to the trusts; and David C. Erdos and Pamela A. Erdos (hereinafter together the Erdos defendants), Connecticut attorneys who lived in Massachusetts and provided legal services to Dagnall in Connecticut related to her interests in the trust. The plaintiff alleged, among other things, that he was emotionally harmed and was caused to lose work-related income as a result of the defendants’ “team approach” adult adoption scheme aimed to impair his contingent beneficiary interest in Trust B. The plaintiff alleged, inter alia, causes of action sounding in fraud and breach of fiduciary duty against the defendants Levine, Farrell, and Rozsa (hereinafter collectively the professional defendants), and conspiracy to commit fraud and aiding and abetting breach of fiduciary duty against all of the defendants. The defendants separately moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against each of them. The Supreme Court granted the defendants’ motions pursuant to CPLR 3211(a)(7), declining to address the threshold issue of personal jurisdiction raised by some of the defendants. The plaintiff appeals.Contrary to arguments raised by some of the defendants in their motions and in their briefs to this Court, the Supreme Court properly found that the plaintiff has standing to commence this action (see generally Caprer v. Nussbaum, 36 AD3d 176).While the Supreme Court correctly dismissed the amended complaint insofar as asserted against the Erdos defendants, it should have done so based on lack of personal jurisdiction pursuant to CPLR 3211(a)(8) (see Paterno v. Lazer Spine Inst., 24 NY3d 370; Riblet Prods. Corp. v. Nagy, 191 AD2d 626). The Erdos defendants lived in Massachusetts, conducted all of their business from their Connecticut office, and had insufficient contacts with New York to subject them to New York’s long-arm jurisdiction (see CPLR 302; see generally America/International 1994 Venture v. Mau, 146 AD3d 40).With respect to the professional defendants, to recover damages for fraud, a plaintiff must prove (1) a misrepresentation or a material omission of fact which was false, (2) knowledge of its falsity, (3) an intent to induce reliance, (4) justifiable reliance by the plaintiff, and (5) damages (see Swartz v. Swartz, 145 AD3d 818; Ginsburg Dev. Cos., LLC v. Carbone, 134 AD3d 890, 892; see also Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559; Pace v. Raisman & Assoc., Esqs., LLP, 95 AD3d 1185; Ozelkan v. Tyree Bros. Envtl. Servs., Inc., 29 AD3d 877, 878; Jablonski v. Rapalje, 14 AD3d 484). ”‘The true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong’ or what is known as the ‘out-of-pocket’ rule” (Lama Holding Co. v. Smith Barney, 88 NY2d 413, 21, quoting Reno v. Bull, 226 NY 546, 553).Accepting the facts as alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference (see Leon v. Martinez, 84 NY2d 83, 88; Raach v. SLSJET Mgt. Corp., 134 AD3d 792, 793), the plaintiff failed to allege facts sufficient to establish that he justifiably relied to his detriment upon a misrepresentation by any of the professional defendants (see Ideal Steel Supply Corp. v. Anza, 63 AD3d 884; Jacobs v. Haber, 232 AD2d 372), or that he sustained any recoverable pecuniary damages as a result of the professional defendants’ alleged fraudulent conduct (see Jeffrey BB. v. Cardinal McCloskey School & Home for Children, 257 AD2d 21; see also Howard S. v. Lillian S., 62 AD3d 187, 193, affd 14 NY3d 431). Accordingly, the Supreme Court properly dismissed pursuant to CPLR 3211(a)(7) the cause of action sounding in fraud insofar as asserted against the professional defendants.New York does not recognize civil conspiracy to commit a tort as an independent cause of action (see Alexander & Alexander of N.Y. v. Fritzen, 68 NY2d 968, 969; Brackett v. Griswold, 112 NY 454, 466-467; Blanco v. Polano, 116 AD3d 892, 895-896; Dickinson v. Igoni, 76 AD3d 943, 945). However, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort, and establish that those actions were part of a common scheme (see Alexander & Alexander of N.Y. v. Fritzen, 68 NY2d at 969; Blanco v. Polano, 116 AD3d at 896). Under New York law, “[i]n order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement” (Perez v. Lopez, 97 AD3d 558, 560; see 1766-68 Assoc., LP v. City of New York, 91 AD3d 519, 520; Abacus Fed. Sav. Bank v. Lim, 75 AD3d 472, 474). Here, since the underlying tort of fraud was properly dismissed, the cause of action alleging civil conspiracy to commit fraud was also properly dismissed, since it stands or falls with the underlying tort (see Lee Dodge, Inc. v. Sovereign Bank, NY, 148 AD3d 1007, 1009; Romano v. Romano, 2 AD3d 430, 432; Sokol v. Addison, 293 AD2d 600, 601).In order to establish a breach of fiduciary duty, a plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant’s misconduct (see Stortini v. Pollis, 138 AD3d 977, 978-979; Deblinger v. Sani-Pine Prods. Co., Inc., 107 AD3d 659, 660; Rut v. Young Adult Inst., Inc., 74 AD3d 776, 777; Daly v. Kochanowicz, 67 AD3d 78, 95; Kurtzman v. Bergstol, 40 AD3d 588, 590; Ozelkan v. Tyree Bros. Envtl. Servs., Inc., 29 AD3d 877, 879). Accepting the facts as alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference (see Leon v. Martinez, 84 NY2d at 88; Raach v. SLSJET Mgt. Corp., 134 AD3d at 793), the plaintiff failed to allege facts sufficient to establish that he sustained pecuniary damages as a result of the professional defendants’ alleged breaches of their fiduciary duties (see Fownes Bros. & Co., Inc. v. JPMorgan Chase & Co., 92 AD3d 582). Accordingly, the Supreme Court properly dismissed pursuant to CPLR 3211(a)(7) the cause of action sounding in breach of fiduciary duty insofar as asserted against the professional defendants.As the cause of action to recover damages for breach of fiduciary duty was properly dismissed, the cause of action alleging aiding and abetting breach of fiduciary duty asserted against Rumbold, Pierce, Dagnall, and the professional defendants was also properly dismissed (see Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 AD3d 804, 809).Accordingly, the Supreme Court properly dismissed the stated causes of action insofar as asserted against each of the defendants.HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Hall, Duffy and Barros, JJ.Joseph McMahon, ap, v. Timothy Manners, respondent def — (Index No. 297/15)Frederick C. Kelly, Monroe, NY, for appellant.Burke, Miele & Golden, LLP, Goshen, NY (Kelly M. Naughton of counsel), for respondent.Appeal from an order of the Supreme Court, Orange County (Elaine Slobod, J.), dated March 25, 2016. The order granted the motion of the defendant Timothy Manners pursuant to CPLR 3126, inter alia, to preclude the plaintiff from submitting any evidence that he had been an employee of either of the defendants to the extent of directing the plaintiff to disclose certain information and documents, including all tax documents for the years 2006 through 2013.ORDERED that the order is modified, on the law, by deleting the provision thereof directing the plaintiff to disclose to the defendant Timothy Manners copies of all tax documents for the years 2006 through 2013, and substituting therefor a provision directing the plaintiff to disclose to the defendant Timothy Manners copies of all tax documents for the years 2006 through 2011; as so modified, the order is affirmed, without costs or disbursements.In February 2006, the plaintiff entered into a written agreement with the defendants David X. Manners Company, Inc. (hereinafter the Manners Company), and its principal, Timothy Manners, whereby the plaintiff agreed to sell space to writers to market themselves in a magazine known as The Hub in exchange for an annual salary and a commission percentage of any sales from the Manners Company. In 2010, the parties modified the agreement by eliminating the salary; the parties agreed that the plaintiff would continue to receive the commission percentage of his sales for the magazine. The defendants ended their business relationship with the plaintiff in June 2011. Thereafter, the plaintiff commenced an action in June 2012 against the defendants (hereinafter the First Action) alleging breach of contract and seeking double damages and attorney’s fees as an independent contractor under Labor Law §191-c. In May 2015, a jury rendered a verdict in favor of the plaintiff in the First Action finding that the defendants breached the contract with the plaintiff.The plaintiff commenced this action (hereinafter the Second Action) in January 2015 against the defendants, alleging, inter alia, that the defendants had formerly employed him and that they failed to pay him earned commissions. Manners sought disclosure of, among other things, the plaintiff’s tax documents from 2006 through 2013, and documents supporting the plaintiff’s allegations in the complaint that he had been employed by the defendants. When the plaintiff refused to turn over any responsive documents, Manners moved pursuant to CPLR 3126, inter alia, to preclude the plaintiff from submitting any evidence that he had been an employee of either of the defendants. The Supreme Court treated Manners’ motion as a motion pursuant to CPLR 3124 to compel discovery and granted the motion to the extent of directing the plaintiff to disclose certain information and documents, including all tax documents for the years 2006 through 2013. The plaintiff appeals.CPLR 3101(a) provides, in relevant part, that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” ”Although the discovery statutes are to be construed ‘liberally’ so that there should be disclosure of any material that is even arguably relevant” (Levine v. City Med. Assoc., P.C., 108 AD3d 746, 747, quoting Shanahan v. Bambino, 271 AD2d 519, 519), “‘unlimited disclosure is not required, and supervision of disclosure is generally left to the Supreme Court’s broad discretion’” (Levine v. City Med. Assoc., P.C., 108 AD3d at 747, quoting Mironer v. City of New York, 79 AD3d 1106, 1108). The essential test is “usefulness and reason” (Andon v. 302-304 Mott St. Assoc., 94 NY2d 740, 746 [internal quotation marks omitted]; see Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406). Here, Manners sustained his burden of demonstrating that the plaintiff should be required to disclose his tax documents relating to the period from 2006 through 2011, when the plaintiff had a business affiliation with Manners (see Levine v. City Med. Assoc., P.C., 108 AD3d at 747; Gitlin v. Chirinkin, 71 AD3d 728, 729; Kerman v. Martin Friedman, C.P.A., P.C., 21 AD3d 997, 999). Accordingly, the Supreme Court providently exercised its discretion in directing the plaintiff to disclose his tax documents from 2006 through 2011. However, the court should not have directed disclosure of tax documents after 2011, as no business relationship existed between the parties at that time (see Levine v. City Med. Assoc., P.C., 108 AD3d at 747; Gitlin v. Chirinkin, 71 AD3d at 729; Kerman v. Martin Friedman, C.P.A., P.C., 21 AD3d at 999).The plaintiff’s remaining contentions are without merit.CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.MATTER of Ameriprise Insurance Company, ap, v. Oral Sandy, res — (Index No. 701706/16)Appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Thomas D. Raffaele, J.), dated September 15, 2016. The order and judgment denied the petition pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, dismissed the proceeding, and denied, as academic, the respondent’s motion to dismiss the proceeding as untimely.ORDERED that the order and judgment is affirmed, without costs or disbursements.In this proceeding pursuant to CPLR aricle 75 to stay arbitration of an uninsured motorist claim, the insured, Oral Sandy, alleged that he was injured as a result of a “hit-and-run” accident that occurred on May 4, 2014. On May 13, 2015, Sandy’s insurer, Ameriprise Insurance Company (hereinafter Ameriprise), commenced an action in New York County against Sandy, among others, seeking, inter alia, a declaration that the accident was excluded from coverage under the policy. On November 2, 2015, Sandy’s attorney sent Ameriprise a certified letter, return receipt requested, requesting payment in full of the entire amount of the supplementary uninsured motorist (hereinafter SUM) coverage under the policy. The fourth paragraph of the letter contained a notice of intention to arbitrate, and stated that unless Ameriprise applied to stay arbitration within 20 days after receipt of the notice, Ameriprise would be precluded from objecting, inter alia, that a valid agreement to arbitrate was not made or complied with. On January 26, 2016, Sandy’s attorney sent Ameriprise an American Arbitration Association request for arbitration form dated January 25, 2016. On February 12, 2016, Ameriprise commenced this proceeding to stay arbitration on the grounds, inter alia, that there was an action pending in New York County and that the underlying incident was not covered under the insurance policy. Sandy moved to dismiss the proceeding on the ground that it was not timely commenced. The Supreme Court denied the petition on the ground that it was untimely, dismissed the proceeding, and denied Sandy’s motion as academic. Ameriprise appeals.“Where an insurance policy contains an agreement to arbitrate, CPLR 7503 (c) ‘requires a party, once served with a [notice of intention to arbitrate], to move to stay such arbitration within 20 days of service of such [notice], else he or she is precluded from objecting’” (Matter of Government Empls. Ins. Co. v. Castillo-Gomez, 34 AD3d 477, 478, quoting Matter of Steck [State Farm Ins. Co.], 89 NY2d 1082, 1084). Here, the proceeding was not commenced within 20 days of the receipt of the November 2, 2015, notice of intention to arbitrate.In order for the 20-day limitation period to be enforceable, the notice of intention to arbitrate must comply with the requirements of CPLR 7503(c) (see Government Empls. Ins. Co. v. Castillo-Gomez, 34 AD3d at 478; Matter of Nassau Ins. Co. [Clemente], 100 AD2d 969, 970; State Farm Mut. Auto. Ins. Co. v. Szwec, 36 AD2d 863, 863). Here, contrary to Ameriprise’s contention, the November 2, 2015, notice complied with all the statutory requirements.Ameriprise failed to establish that the November 2, 2015, notice of intention to arbitrate was deceptive and intended to prevent it from timely contesting the issue of arbitrability (see Matter of Progressive Cas. Ins. Co. v. Garcia, 140 AD3d 886, 887; Matter of Standard Fire Ins. Co. v. Mouchette, 47 AD3d 636, 637; Matter of Travelers Indem. Co. v. Castro, 40 AD3d 1005, 1006). The notice was clearly set forth in the letter dated November 2, 2015. Moreover, Ameriprise failed to proffer an affidavit from someone with personal knowledge to support its contention that it was deceived (see Matter of Progressive Cas. Ins. Co. v. Garcia, 140 AD3d at 887; Matter of Standard Fire Ins. Co. v. Mouchette, 47 AD3d at 637).Ameriprise’s remaining contentions are either without merit or not properly before this Court.Accordingly, the Supreme Court properly denied Ameriprise’s petition as untimely, dismissed the proceeding, and denied Sandy’s motion as academic.HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.PEOPLE, etc., res, v. Alexander Ndaula, ap — (Ind. No. 1721/11)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Joseph A. Zayas, J.), rendered April 26, 2013, convicting him of attempted enterprise corruption, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, without a hearing, of that branch of the defendant’s omnibus motion which was to controvert an eavesdropping warrant and subsequent extended and amended eavesdropping warrants.ORDERED that the judgment is affirmed.The defendant’s waiver of his right to appeal was invalid (see People v. Bradshaw, 18 NY3d 257; People v. Callahan, 80 NY2d 273). However, contrary to the defendant’s contention, the Supreme Court properly denied that branch of his omnibus motion which was to controvert the subject eavesdropping warrant and subsequent extended and amended eavesdropping warrants. The affidavit of the detective submitted in support of the warrant applications made the requisite showing that normal investigative procedures had been tried and failed, or reasonably appeared to be unlikely to succeed if tried, or were too dangerous to employ, to obtain the evidence sought (see CPL 700.15[4], 700.20[2][d]; People v. Rabb, 16 NY3d 145, 153; People v. Castillo, 122 AD3d 516; People v. Giraldo, 270 AD2d 97). There is no requirement that the police exhaust all conceivable investigative techniques before resorting to electronic surveillance, or that they resort to measures that will clearly be unproductive (see People v. Rabb, 16 NY3d at 153). Accordingly, the subject eavesdropping warrant, and subsequent amended and extended eavesdropping warrants, were properly issued.DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.MATTER of Deandre A. (Anonymous), ap — (Docket No. D-5055-16)Appeal from an order of fact-finding and disposition of the Family Court, Westchester County (Kathie E. Davidson, J.), entered September 19, 2016. The order of fact-finding and disposition, insofar as appealed from, adjudicated Deandre A. a juvenile delinquent upon a finding that he committed acts which, if committed by an adult, would have constituted the crimes of attempted strangulation in the second degree, criminal obstruction of breathing or blood circulation, and attempted assault in the third degree.ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.The presentment agency filed a petition alleging, inter alia, that the appellant committed acts which, if committed by an adult, would have constituted the crimes of attempted strangulation in the second degree (Penal Law §§110, 121.12), criminal obstruction of breathing or blood circulation (Penal Law §121.11[a]), and attempted assault in the third degree (Penal Law §§110.00, 120.00[1]). At the fact-finding hearing, there was evidence presented that the appellant put his hands around the neck of a social worker and applied pressure, and also covered her nose and mouth, causing her pain and leaving her with red marks on her neck and nose. The Family Court determined that the presentment agency sustained its burden of proof of establishing that the appellant had committed acts which, if committed by an adult, would have constituted the foregoing three crimes.The appellant’s challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see Matter of Melissa N., 62 AD3d 884; Matter of Charles S., 41 AD3d 484, 485). In any event, viewing the evidence at the fact-finding hearing in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792, 793), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant committed acts which, if committed by an adult, would have constituted the crimes of attempted strangulation in the second degree (Penal Law §§110, 121.12), criminal obstruction of breathing or blood circulation (Penal Law §121.11[a]), and attempted assault in the third degree (Penal Law §§110.00, 120.00[1]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see Matter of Brandon V., 133 AD3d 769, 769; Matter of Dashawn R., 120 AD3d 1250, 1251; Matter of Kaseem R., 113 AD3d 779, 780), we nevertheless accord great deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see Matter of Dajahn M., 110 AD3d 812; Matter of Danielle B., 94 AD3d 757, 758; Matter of Jamel C., 92 AD3d 782, 782-783; Matter of Kalexis R., 85 AD3d 927, 928-929). The Family Court’s credibility determinations should not be disturbed unless clearly unsupported by the record (see Matter of Brandon V., 133 AD3d at 769-770; Matter of Darnell G., 125 AD3d 969, 969; Matter of Dashawn R., 120 AD3d at 1251). Upon reviewing the record, we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence (cf. People v. Romero, 7 NY3d 633, 644-645).The appellant’s remaining contentions are without merit.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.Bank of New York Mellon, etc., res, v. Gila Hoshmand appellants def — (Index No. 15392/12)Appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), dated November 20, 2015. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were to confirm a referee’s report and for a judgment of foreclosure and sale.ORDERED that the order is affirmed insofar as appealed from, with costs.The defendants Gila Hoshmand and Samuel Hoshmand (hereinafter together the appellants) defaulted on their consolidated mortgage loan. The plaintiff, the holder of the consolidated mortgage and consolidated note, commenced this action to foreclose the consolidated mortgage against, among others, the appellants. The appellants did not appear in the action or answer the complaint. On November 18, 2014, the Supreme Court granted the plaintiff’s motion for an order of reference and denied the appellants’ cross motion to vacate their default. Subsequently, the plaintiff moved, inter alia, to confirm the referee’s report and for a judgment of foreclosure and sale, and the appellants opposed the motion. In the order appealed from, the Supreme Court, inter alia, granted those branches of the plaintiff’s motion.Contrary to the appellants’ contention, the Supreme Court properly considered a renewed power of attorney submitted by the plaintiff in reply to the appellants’ opposition to its motion. ”The function of reply papers is to address arguments made in opposition to the position taken by the movant” (Central Mtge. Co. v. Jahnsen, 150 AD3d 661, 664 [internal quotation marks omitted]; see OneWest Bank, FSB v. Simpson, 148 AD3d 920, 923). Here, the renewed power of attorney submitted by the plaintiff was offered in response to the appellants’ argument made in opposition that the plaintiff’s affidavit of merit, signed by the assistant vice president of its servicing agent, was invalid because it was signed after the original power of attorney submitted by the plaintiff had expired. The renewed power of attorney merely clarified that the plaintiff’s servicing agent continued to have the authority to act on behalf of the plaintiff at the time the affidavit was signed (see Central Mtge. Co. v. Jahnsen, 150 AD3d at 664; OneWest Bank, FSB v. Simpson, 148 AD3d at 923).The Supreme Court properly confirmed the referee’s report. Contrary to the appellants’ contention, under the circumstances of this case, the referee was not required to conduct a hearing before issuing her report (see Deutsche Bank Natl. Trust Co. v. Williams, 134 AD3d 981; Wachovia Mtge. Corp. v. Lopa, 129 AD3d 830, 831; Capital One, N.A. v. Knollwood Props. II, LLC, 98 AD3d 707, 708; Dune Deck Owners Corp. v. J.J.&P. Assoc. Corp., 85 AD3d 1091; Deutsche Bank Natl. Trust Co. v. Zlotoff, 77 AD3d 702; Deutsche Bank Natl. Trust Co. v. Jackson, 68 AD3d 805).Accordingly, the Supreme Court properly granted those branches of the plaintiff’s motion which were to confirm the referee’s report and for a judgment of foreclosure and sale.DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Rivera, J.P.; Cohen, Miller and Christopher, JJ.MATTER of Karmer A. E. (Anonymous). Little Flower Children and Family Services, res; Carlos A. E. (Anonymous), ap — (Docket No. B-8956-15)Francine Shraga, Brooklyn, NY, for appellant.Leventhal, Mullaney & Blinkoff, LLP, Roslyn, NY (Jeffrey Blinkoff of counsel), for respondent.Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Sara H. Reisberg of counsel), attorney for the child.Appeal from an order of fact-finding and disposition of the Family Court, Queens County (Emily Ruben, J.), dated December 23, 2016. The order of fact-finding and disposition, upon an order of that court dated May 23, 2016, granting the petitioner’s motion for summary judgment on the issue of whether the father severely abused the subject child, and after a dispositional hearing, terminated the father’s parental rights and transferred custody and guardianship of the child to the petitioner and the Commissioner of the Administration for Children’s Services of the City of New York for the purpose of adoption.ORDERED that the order of fact-finding and disposition is affirmed.On March 19, 2013, Carlos A. E., who is the biological father of the subject child, killed the child’s mother while the child was in the home. The child was then placed in a kinship foster home. The father was convicted of manslaughter in the first degree in connection with the mother’s death. A proceeding was commenced under article 10 of the Family Court Act, and a finding was made that the child was a severely abused child. The agency then commenced this proceeding to terminate the father’s parental rights. The Family Court granted the agency’s motion for summary judgment on the issue of whether the father severely abused the child and, following a dispositional hearing, granted the petition to terminate the father’s parental rights. The father appeals.The Family Court properly granted the petitioner’s motion for summary judgment on the issue of whether the father severely abused the child (see Social Service Law §384-b[8][a][iv][d]; Matter of Noah E. P. [Wesley P.], 132 AD3d 875; Matter of Rodney J.R. [Rodney R.], 123 AD3d 727). Furthermore, the court properly determined that it was in the child’s best interests to terminate the father’s parental rights (see Matter of Zechariah J. [Valrick J.], 84 AD3d 1087; Matter of Amber D.C. [Angelica C.], 79 AD3d 865). Termination of parental rights will free the child for adoption, providing him with the opportunity to have a permanent family (see Matter of Michael B., 80 NY2d 299; Matter of Zechariah J. [Valrick J.], 84 AD3d at 1088).The father’s remaining contentions are without merit.RIVERA, J.P., COHEN, MILLER and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Hinds-Radix, Duffy and Lasalle, JJ.MATTER of Nicole Latham, ap, v. Samuel Savage, res — (Docket No. V-28463-07)Appeal from an order of the Family Court, Kings County (Maria Arias, J.), dated April 25, 2017. The order, after a hearing, denied the mother’s petition to modify a prior order of custody so as to award her custody of the subject child.ORDERED that the order is reversed insofar as appealed from, on the facts and as a matter of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for further proceedings consistent herewith. In the interim, custody of the subject child shall remain with the mother.The parties have one child together. On December 11, 2007, an order of custody was entered awarding the father custody of the child and the mother supervised visitation. The mother filed the instant petition on July 16, 2014, to modify the custody order so as to award her custody of the child. After a hearing, the Family Court denied the petition, finding that the mother had failed to establish a change in circumstances sufficient to modify custody. The mother appeals.Here, new developments have arisen since the date the order appealed from was issued, which have been brought to this Court’s attention by the attorney for the child. ”As the Court of Appeals has recognized, changed circumstances may have particular significance in child custody matters and may render the record on appeal insufficient to review whether the Family Court’s determinations are still in the best interests of the children” (Matter of Leval B. v. Kiona E., 115 AD3d 665, 667; see Matter of Michael B., 80 NY2d 299, 317). In light of the serious allegations brought to this Court’s attention by the attorney for the child, “the record before us is no longer sufficient for determining” the ultimate issues presented (Matter of Michael B., 80 NY2d at 318).Accordingly, the matter must be remitted to the Family Court, Kings County, for a new expedited hearing and new expedited determination of whether, considering the best interests of the child, current circumstances support the child’s residence with the father. We express no opinion as to the appropriate determination. In the interim, custody of the subject child shall remain with the mother—we take judicial notice of the fact that the mother was granted temporary custody of the child by order of the Family Court, Kings County, dated September 22, 2017.CHAMBERS, J.P., HINDS-RADIX, DUFFY and LASALLE, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.Deutsche Bank National Trust Company, etc., res, v. Aristides Saketos ap, et al., def — (Index No. 22909/09)Appeal from an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), dated November 4, 2015. The order denied the motion of the defendants Aristides Saketos, Athanasios Saketos, and Vasilis Saketos, in effect, pursuant to CPLR 5015(a)(1) and (4) to vacate a judgment of foreclosure and sale of that court dated September 3, 2014, entered upon their default in answering the complaint, for leave to serve a late answer, to cancel certain interest, costs, and fees, and to enjoin the foreclosure sale of the premises.ORDERED that the order is affirmed, with costs.In September 2009, the plaintiff commenced this action to foreclose a mortgage, alleging that the defendants Aristides Saketos, Athanasios Saketos, and Vasilis Saketos (hereinafter collectively the defendants) failed to make payment in accordance with the terms of the mortgage. The defendants defaulted in answering the complaint. Thereafter, a judgment of foreclosure and sale was entered in favor of the plaintiff and against the defendants. In August 2015, the defendants moved, in effect, pursuant to CPLR 5015(a)(1) and (4) to vacate the judgment of foreclosure and sale, for leave to serve a late answer, to cancel certain interest, costs, and fees, and to enjoin the foreclosure sale of the premises. In support, the defendants argued that the plaintiff failed to serve Vasilis Saketos with process. Alternatively, the defendants argued that they were entitled to a discretionary vacatur based upon the negligence of prior counsel in failing to interpose an answer on their behalf and the proffered defenses of lack of standing and the plaintiff’s alleged failure to mail a notice of default in accordance with the provisions of the mortgage. The Supreme Court denied the motion without a hearing, and the defendants appeal.“A party seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1), and thereupon to serve a late answer, must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action” (Hamilton Pub. Relations v. Scientivity, LLC, 129 AD3d 1025, 1025). Where a defendant seeking to vacate a default judgment raises both a jurisdictional objection pursuant to CPLR 5015(a)(4) and alternatively seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1) (see Canelas v. Flores, 112 AD3d 871; Emigrant Mtge. Co., Inc. v. Westervelt, 105 AD3d 896, 896-897).Contrary to the defendants’ contention, they did not demonstrate their entitlement to vacatur of the judgment of foreclosure and sale based upon lack of personal jurisdiction over Vasilis Saketos. ”Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308″ (FV-1, Inc. v. Reid, 138 AD3d 922, 923; see Washington Mut. Bank v. Murphy, 127 AD3d 1167, 1174; Emigrant Mtge. Co., Inc. v. Westervelt, 105 AD3d at 896-897). ”Ordinarily, the affidavit of a process server constitutes a prima facie showing of proper service” (FV-1, Inc. v. Reid, 138 AD3d at 923; see Scarano v. Scarano, 63 AD3d 716, 716). “However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit, and necessitates an evidentiary hearing” (Deutsche Bank Natl. Trust Co. v. DaCosta, 97 AD3d 630, 631).Here, the process server’s affidavit of service established, prima facie, that Vasilis Saketos was served with process pursuant to CPLR 308(4), and the affidavit of Vasilis Saketos was insufficient to rebut the prima facie showing of proper service (see 425 E. 26th St. Owners Corp. v. Beaton, 50 AD3d 845, 846). The additional affidavit submitted by Vasilis Saketos was improperly submitted for the first time in reply (see Mortgage Elec. Registration Sys., Inc. v. Losco, 125 AD3d 733, 733; Board of Mgrs. of Foundry at Washington Park Condominium v. Foundry Dev. Co., Inc., 111 AD3d 776, 777).Furthermore, the defendants were not entitled to a discretionary vacatur pursuant to CPLR 5015(a)(1), as they failed to set forth any reasonable excuse for their default. “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court” (Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 AD3d 889, 890; see Mannino Dev., Inc. v. Linares, 117 AD3d 995, 995; JP Morgan Chase Bank, N.A. v. Palma, 114 AD3d 645, 645). Here, the Supreme Court providently exercised its discretion in determining that the defendants’ conclusory and wholly unsubstantiated allegations of neglect by their prior counsel did not constitute a reasonable excuse for their failure to answer the complaint (see One W. Bank, FSB v. Valdez, 128 AD3d 655, 655; HSBC Bank USA N.A. v. Wider, 101 AD3d 683, 683; Wells Fargo Bank, N.A. v. Cervini, 84 AD3d 789, 789; Desiderio v. Devani, 24 AD3d 495, 496). Since the defendants failed to offer a reasonable excuse, it is not necessary to consider whether they sufficiently demonstrated the existence of a potentially meritorious defense (see One W. Bank, FSB v. Valdez, 128 AD3d at 655; Citimortgage, Inc. v. Stover, 124 AD3d 575; HSBC Bank USA, N.A. v. Lafazan, 115 AD3d 647, 648).The defendants’ contention that they were entitled to relief pursuant to CPLR 317 is improperly raised for the first time on appeal.Accordingly, the Supreme Court properly denied the defendants’ motion to vacate the judgment of foreclosure and sale, for leave to serve a late answer, to cancel certain interest, costs, and fees, and to enjoin the foreclosure sale of the premises.DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Rivera, J.P.; Leventhal, Hall and Hinds-Radix, JJ.PEOPLE, etc., res, v. Kenneth OKeefe, ap — (Ind. No. 1950/03)Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated April 24, 2013 (People v. O’Keefe, 105 AD3d 1062), affirming a judgment of the County Court, Suffolk County, rendered March 31, 2005.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).RIVERA, J.P., LEVENTHAL, HALL and HINDS-RADIX, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.PEOPLE, res, v. Philip Hawthorne, ap — Appeal by the defendant from an order of the Supreme Court, Queens County (Ira H. Margulis, J.), dated July 28, 2016, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.The defendant pleaded guilty to one count of use of a child in a sexual performance (Penal Law §263.05). Prior to his release from prison, the Supreme Court held a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA). Following the hearing, the court, among other things, assessed the defendant 20 points under risk factor 13, denied the defendant’s request for a downward departure from his presumptive risk level, and adjudicated him a level two sex offender. The defendant appeals.The defendant contends that the Supreme Court erred in assessing him 20 points under risk factor 13. Risk factor 13, titled “Conduct While Confined or Under Supervision,” provides that an offender may be assessed 20 points if “[t]he offender’s adjustment to confinement or supervision has been unsatisfactory and has included inappropriate sexual conduct” (SORA: Risk Assessment Guidelines and Commentary, risk factor 13 [2006] [hereinafter Guidelines]). The examples of “inappropriate sexual behavior” cited in the Guidelines include disciplinary infractions “for behavior such as possessing pornography or any factor related to… sexual acting out” (id. at 16-17).“In establishing a defendant’s risk level pursuant to SORA, the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought” (People v. Parris, 153 AD3d 68, 82; see Correction Law §168-n[3]; People v. Pettigrew, 14 NY3d 406, 408). ”The interpretation of the SORA Guidelines is a question of law for the court” (People v. Lawson, 90 AD3d 1006, 1007; see People v. Wyatt, 89 AD3d 112, 117).Here, the defendant’s tier II disciplinary infraction for his attempt to initiate sexual contact with an on-duty corrections officer while he was incarcerated constituted inappropriate sexual conduct within the meaning of the Guidelines (see People v. Faulkner, 151 AD3d 601, 601; People v. Baluja, 109 AD3d 803, 804). Contrary to the defendant’s contention, risk factor 13 includes conduct that does not rise to the level of “sexual misconduct” as that phrase is defined in Penal Law §130.20 (see People v. Lawson, 90 AD3d at 1007; see also Guidelines at 16-17). Accordingly, the defendant was properly assessed 20 points under risk factor 13 for unsatisfactory conduct while confined that involved inappropriate sexual conduct (see People v. Faulkner, 151 AD3d at 601; People v. Baluja, 109 AD3d at 804).The defendant also contends that the Supreme Court erred in denying his request for a downward departure from his presumptive risk level of risk level two to risk level one. ”[A] court is empowered to exercise its discretion and depart from the presumptive risk level based upon the facts in the record” (People v. Abdullah, 31 AD3d 515, 516). ”Under SORA, a court must follow three analytical steps to determine whether or not to order a departure from the presumptive risk level” (People v. Gillotti, 23 NY3d 841, 861).“At the first step, the court must decide whether the… mitigating circumstances alleged… are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines” (id. at 861; see Guidelines at 4). ”At the second step, the court must decide whether the [defendant] has adduced sufficient evidence to meet [his or her] burden of proof in establishing that the alleged… mitigating circumstances actually exist in the case at hand” (People v. Gillotti, 23 NY3d at 861; see Guidelines at 4, 7). ”[A] defendant must prove the existence of the mitigating circumstances… by a… preponderance of the evidence” (People v. Gillotti, 23 NY3d at 864).“If the party applying for a departure surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure” (id. at 861). ”Thus, at the third step, the court must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant’s dangerousness and risk of sexual recidivism” (id.).Here, the defendant has cited several factors in support of his request for a downward departure: (1) his outstanding response to sex offender treatment, (2) his remorse and acceptance of responsibility for his crime, (3) his strong family support network in place to assist him upon his release, (4) his lack of prior criminal history, and (5) his lack of a history of substance abuse.Although “[a]n offender’s response to treatment, if exceptional, can be the basis for a downward departure” (Guidelines at 17; see People v. Washington, 84 AD3d 910, 911), the defendant here failed to demonstrate by a preponderance of the evidence that his response to treatment was “exceptional” (Guidelines at 17; see People v. Dyson, 130 AD3d 600, 600-601; People v. Torres, 124 AD3d 744, 746; People v. Jackson, 114 AD3d 739, 739-740; People v. Roldan, 111 AD3d 909, 910).Furthermore, the other circumstances cited by the defendant in support of his request for a downward departure were adequately taken into account under the Guidelines (see Guidelines at 13-15, 17-18; People v. Santiago, 137 AD3d 762, 764; People v. Torres, 124 AD3d at 745-746). Inasmuch as the mitigating circumstances identified by the defendant either were adequately taken into account by the Guidelines, or were not proven by a preponderance of the evidence, the Supreme Court lacked the discretion to downwardly depart from the presumptive risk level (see People v. Gillotti, 23 NY3d at 861; People v. Santiago, 137 AD3d at 765; People v. Wyatt, 89 AD3d at 128). Accordingly, the court properly denied the defendant’s request for a downward departure.DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Dillon, J.P.; Leventhal, Hinds-Radix and Lasalle, JJ.MATTER of David Putland, res, v. New York State Department of Corrections and Community Supervision, ap — (Index No. 1895/15)Appeal from a judgment of the Supreme Court, Orange County (Robert A. Onofry, J.), dated July 1, 2015. The judgment granted the petition, filed pursuant to CPLR article 78, to review a determination of the New York State Board of Parole denying, after an interview, the petitioner’s application for parole, annulled the determination, and remitted the matter to the New York State Board of Parole for a de novo parole interview before a different panel.ORDERED that the judgment is affirmed, without costs or disbursements.The petitioner was convicted, as a juvenile offender, of murder in the second degree and sodomy in the first degree for crimes he committed in September 1979, when he was 15 years of age, against a victim who was 7 years of age (see People v. Putland, 105 AD2d 199, 199-200). The petitioner was sentenced to indeterminate terms of imprisonment of 9 years to life on his conviction of murder in the second degree and 3 1/3 to 10 years on his conviction of sodomy in the first degree, the sentences to run concurrently.In June 2014, the petitioner appeared before the New York State Board of Parole (hereinafter the Parole Board) on his application for parole release. He was approximately 50 years of age, and had been denied parole release on 13 prior occasions. Following an interview, the Parole Board denied the petitioner’s application.The petitioner commenced this proceeding pursuant to CPLR article 78 to review the Parole Board’s determination. In a judgment dated July 1, 2015, the Supreme Court granted the petition, annulled the determination, and remitted the matter to the Parole Board for a de novo interview before a different panel. This appeal ensued.During the pendency of this appeal, the Appellate Division, Third Judicial Department decided Matter of Hawkins v. New York State Dept. of Corr. & Community Supervision (140 AD3d 34). In Matter of Hawkins, the Third Department held that “[f]or those persons convicted of crimes committed as juveniles who, but for a favorable parole determination will be punished by life in prison, the [Parole] Board must consider youth and its attendant characteristics in relationship to the commission of the crime at issue” (id. at 39).In its reply brief on this appeal, the appellant represents that the Parole Board “has elected to comply with Matter of Hawkins on a statewide basis.” The appellant informs us that regulations requiring the Parole Board to consider, inter alia, the diminished culpability of youth, were proposed and are now in effect. Evidently, these regulations constitute a recognition, at least implicitly, of the holding in Matter of Hawkins, and of the United States Supreme Court cases Montgomery v. Louisiana (136 S Ct 718) and Miller v. Alabama (567 US 460), on which Matter of Hawkins is based. The appellant concedes that the petitioner should receive a de novo interview.Under these circumstances, we deem it appropriate to affirm the judgment that annulled the Parole Board’s determination and remitted the matter to the Parole Board for a de novo interview before a different panel. The petitioner is entitled to a meaningful opportunity for release in which the Parole Board considers, inter alia, his youth at the time of the commission of the crimes and its attendant circumstances (see Matter of Hawkins v. New York State Dept. of Corr. & Community Supervision, 140 AD3d at 40). In view of the foregoing, we need not address the parties’ remaining contentions.DILLON, J.P., LEVENTHAL, HINDS-RADIX and LASALLE, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.PEOPLE, etc., res, v. Jean Michel, ap — (Ind. No. 8459/13)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. Del Guidice, J.), rendered June 12, 2014, convicting him of aggravated criminal contempt, criminal contempt in the first degree (two counts), and assault in the third degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The Supreme Court providently exercised its discretion in permitting the People to elicit evidence of prior incidents of domestic violence between the defendant and the victim (see People v. Molineux, 168 NY 264). The evidence was relevant and probative on the issue of motive, and it provided necessary background material to enable the jury to understand the defendant’s relationship with the victim and to explain the issuance of two orders of protection (see People v. Walters, 127 AD3d 889; People v. Sanchez, 73 AD3d 1093, 1094; People v. Timmons, 54 AD3d 883, 885; People v. Beriguete, 51 AD3d 939, 940). In addition, at the conclusion of the victim’s testimony the court gave a limiting instruction that the evidence was to be considered only for limited purposes, and the jury instruction also reminded the jury that it could not convict the defendant simply because he had committed similar acts in the past (see People v. Womack, 143 AD3d 1171, 1174). Although the court’s charge improperly referenced the defendant’s prior convictions, the instruction, in its entirety, did not deprive the defendant of a fair trial (see People v. Medina, 18 NY3d 98, 104).The defendant failed to preserve for appellate review his contention regarding the legal sufficiency of the evidence supporting his convictions for aggravated criminal contempt and assault in the third degree (see CPL 470.05[2]; People v. Miller, 59 AD3d 463, 464). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant’s guilt of those crimes beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.Atlantic Finance, LLC, ap, v. Xinlei Lin respondents def — (Index No. 604698/14)In an action, inter alia, to recover damages for breach of an escrow agreement, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered March 11, 2016, as denied that branch of its motion which was for summary judgment on the complaint insofar as asserted against the defendants Xinlei Lin and Shengguo Lin.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The plaintiff entered into a contract of sale with the defendants Xinlei Lin and Shengguo Lin (hereinafter the defendants), whereby the plaintiff agreed to sell, and the defendants agreed to purchase, premises located in Jamaica, Queens, for the sum of $540,000. The contract contained a provision that required the plaintiff to deliver the premises free of violations and liens. The defendants’ title search revealed numerous violations and civil penalties issued against the premises by the City of New York Department of Housing Preservation and Development (hereinafter HPD), Department of Buildings (hereinafter DOB), and Environmental Control Board (hereinafter ECB). The plaintiff and the defendants then executed an escrow agreement, whereby the parties agreed that the plaintiff’s attorney would hold the sum of $100,000 in escrow to ensure the removal of the violations and civil penalties from the premises.After a dispute arose as to whether the terms of the escrow agreement had been complied with, the plaintiff commenced this action against, among others, the defendants, inter alia, to recover damages for breach of the escrow agreement. After issue was joined, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendants, and the Supreme Court denied that branch of the plaintiff’s motion. The plaintiff appeals.The plaintiff’s submissions failed to eliminate all triable issues of fact as to whether the defendants breached the escrow agreement by unjustifiably refusing to permit the escrow funds to be released to it. Certain documentary evidence submitted by the plaintiff in support of its motion was not in admissible form. Specifically, none of the records from ECB, DOB, and HPD were certified, and therefore, these records constituted inadmissible hearsay. Additionally, an unsworn letter from an ECB attorney and uncertified records of the title insurance company also constituted inadmissible hearsay (see Greater Bright Light Home Care Servs., Inc. v. Jeffries-El, 151 AD3d 818, 821; Pandey v. Parikh, 57 AD3d 634). Without this evidence, the plaintiff’s contention that it complied with the escrow agreement by removing all violations from the premises was conclusory and unsupported. Furthermore, the plaintiff’s submissions raised a triable issue of fact as to its compliance with the terms of the escrow agreement and whether it failed to pay the civil penalties associated with the ECB violations. Accordingly, since the plaintiff’s evidence failed to eliminate all triable issues of fact, the Supreme Court properly denied that branch of its motion which was for summary judgment on the complaint insofar as asserted against the defendants, without regard to the sufficiency of the opposition papers (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853; 32nd Ave., LLC v. Angelo Holding Corp., 88 AD3d 986, 987).DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Chambers, J.P.; Hinds-Radix, Duffy and Lasalle, JJ.MATTER of Alicia Jagnarain, pet, v. Paul Aponte, res; Amal Oummih, etc., nonparty-ap; David Badanes, etc., nonparty-res — (Proceeding No. 1)MATTER of Paul Aponte, pet, v. Alicia Jagnarain, res; Amal Oummih, etc., nonparty-ap; David Badanes, etc., nonparty-res — (Proceeding No. 2) (Docket Nos. V-4433-16, V-6604-16)Amal Oummih, Astoria, NY, nonparty-appellant pro se.Appeal from an order of the Family Court, Nassau County (Ellen R. Greenberg, J.), dated October 27, 2016. The order, insofar as appealed from, granted that branch of the motion of nonparty David Badanes which was pursuant to 22 NYCRR 130-2.1 for an award of costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, directed nonparty Amal Oummih to pay him the sum of $2,100, and denied the cross motion of nonparty Amal Oummih for an award of sanctions pursuant to 22 NYCRR 130-1.1.ORDERED that the order is modified, on the facts and in the exercise of discretion, by reducing the amount awarded to nonparty David Badanes as costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees from the sum of $2,100 to the sum of $600; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.The nonparty-appellant Amal Oummih (hereinafter the appellant) was the attorney for the mother in these child custody proceedings, and the nonparty-respondent David Badanes (hereinafter the respondent) was the attorney for the father. The appellant, on the eve of the trial scheduled for Monday, August 22, 2016, sought to withdraw as counsel for the mother, because the appellant’s mother had been gravely ill since July 2016. Instead of moving to withdraw as counsel, the appellant asked the mother to discharge the appellant as her attorney. On August 17, 2016, the mother complied, and by letter dated August 18, 2016, the appellant informed the Family Court that she had been discharged. On Friday, August 19, 2016, the appellant notified the attorney for the child, who, in turn, notified the respondent. On the day of trial, August 22, 2016, no consent to change attorney form pursuant to CPLR 321 had been filed, because the retainer agreement for the mother’s new attorney had not been finalized.The respondent moved pursuant to 22 NYCRR 130-2.1 for costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees based upon the appellant’s failure to appear for the trial. The appellant opposed the motion and cross-moved to impose sanctions pursuant to 22 NYCRR 130-1.1 upon the respondent, arguing that his motion was frivolous. The Family Court, in the order appealed from, determined that the appellant’s failure to appear at the trial was without good cause, granted the respondent’s motion, awarded him the sum of $2,100, and denied the appellant’s cross motion.Pursuant to 22 NYCRR 130-2.1(a) “the court, in its discretion, may impose financial sanctions or, in addition to or in lieu of imposing sanctions, may award costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, upon any attorney who, without good cause, fails to appear at a time and place scheduled for an action or proceeding to be heard before a designated court.” Here, the Family Court providently exercised its discretion in granting the respondent’s motion.The appellant’s failure to properly notify the Family Court and the other parties of her dilemma, and the nature of the harm caused by her nonappearance, which prolonged the custody litigation, warranted an award of costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees (see Matter of Myles B., 20 AD3d 413, 413; Sanchez v. Sanchez, 286 AD2d 324; Matter of Alex S., 283 AD2d 433; Hardy v. Hardy, 281 AD2d 515, 516).However, the award of costs, in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, did not reflect work “actually performed” or fees “actually incurred” (RAD Ventures Corp. v. Artukmac, 31 AD3d 412, 414). Accordingly, we reduce the award of costs from the sum of $2,100 to the sum of $600.The appellant’s remaining contentions are without merit.CHAMBERS, J.P., HINDS-RADIX, DUFFY and LASALLE, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.Ruth Detringo, ap, v. South Island Family Medical, LLC res — (Index No. 605732/16)William J. Fallon, Rockville Centre, NY, for appellant.Benvenuto & Slattery (Rubin Sheeley Paterniti Gonzalez Kaufman, LLP, New York, NY [James W. Tuffin], of counsel), for respondents.In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Bruno, J.), entered November 15, 2016, as granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for breach of contract.ORDERED that the order is affirmed insofar as appealed from, with costs.After allegedly being ejected from the defendants’ medical facility despite having an appointment, the plaintiff commenced this action, inter alia, to recover damages for breach of contract. Prior to interposing an answer, the defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. The Supreme Court granted the motion, and the plaintiff appeals from so much of the order as granted that branch of the motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for breach of contract.“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703-704; see Leon v. Martinez, 84 NY2d 83, 87). Moreover, a plaintiff opposing a CPLR 3211(a)(7) dismissal motion may submit evidence to remedy defects in an inartfully drafted but potentially meritorious complaint (see Nilazra, Inc. v. Karakus, Inc., 136 AD3d 994, 995). Generally, the complaint need only contain “[s]tatements… sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action” (CPLR 3013; see East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 AD3d 122, 125, affd 16 NY3d 775).The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach, and resulting damages (see New York State Workers’ Compensation Bd. v. SGRisk, LLC, 116 AD3d 1148, 1153; JP Morgan Chase v. J.H. Elec. of N.Y., Inc., 69 AD3d 802, 803). ”To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms” (Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp., 93 NY2d 584, 589; see Saul v. Cahan, 153 AD3d 947, 950). More particularly, a cause of action to recover damages for breach of contract to provide medical services “will withstand a test to its legal sufficiency only where it is based upon an express special promise to effect a cure or to accomplish some definite result” (Monroe v. Long Is. Coll. Hosp., 84 AD2d 576, 576; see Derby v. Bitan, 89 AD3d 889, 891; Catapano v. Winthrop Univ. Hosp., 19 AD3d 355, 355; Carr v. Lipshie, 8 AD2d 330, 332, affd 9 NY2d 983). Here, the plaintiff’s allegations, even supplemented by her affidavit submitted in opposition to the defendants’ motion to dismiss the complaint, failed to state a cause of action to recover damages for breach of contract to provide medical services. The plaintiff’s allegations as to the formation and terms of any alleged contract are vague and entirely conclusory. Moreover, the alleged damages, which are in the nature of pain and suffering, are not recoverable in a cause of action to recover damages for breach of contract to provide medical services (see Keselman v. Kingsboro Med. Group, 156 AD2d 334, 335-336; Semel v. Culliford, 120 AD2d 901, 902-903; Mitchell v. Spataro, 89 AD2d 599, 599).The plaintiff’s remaining contention is without merit.Accordingly, the Supreme Court correctly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for breach of contract.DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.MATTER of Law Offices of Cory H. Morris, ap, v. County of Nassau res — (Index No. 2591/15)In a proceeding pursuant to CPLR article 78 to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6), the petitioner appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Nassau County (Brandveen, J.), entered June 12, 2015, as denied that branch of the petition which was to compel the production of certain specified records of the Nassau County Traffic and Parking Violations Agency and dismissed that portion of the proceeding.ORDERED that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and that branch of the petition which was to compel the production of certain specified records of the Nassau County Traffic and Parking Violations Agency is granted to the extent that the respondents are directed to produce the documents held by the Nassau County Traffic and Parking Violations Agency for an in camera inspection by the Supreme Court, Nassau County, and the matter is remitted to the Supreme Court, Nassau County, for an in camera inspection of those documents and a new determination thereafter.The petitioner made a request under the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL) for the production of certain records pertaining to the County of Nassau’s photo speed monitoring system. After his request was denied, the petitioner pursued an administrative appeal, which was successful, in part, and unsuccessful, in part. The appeals officer declined to order the production of records held by the Nassau County Traffic and Parking Violations Agency (hereinafter the TPVA) on the ground that the TPVA is part of the judiciary and, thus, its records are not the records of an “agency” as defined in Public Officers Law §86(3). The petitioner then commenced this proceeding under CPLR article 78, inter alia, to compel the production of records held by the TPVA. The Supreme Court denied that branch of the petition and dismissed that portion of the proceeding. The court held that the TPVA is part of the “judiciary” and therefore “expressly exempt” from FOIL. The petitioner appeals.FOIL “expresses this State’s strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies” (Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 NY2d 562, 565; see Matter of Berger v. New York City Dept. of Health & Mental Hygiene, 137 AD3d 904, 906). To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted (see Public Officers Law §87[2]; Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 NY2d at 565; Matter of New York Times Co. v. New York State Dept. of Health, 243 AD2d 157, 159).FOIL applies to “agency” records, but its definition of “agency” expressly excludes the “judiciary” (Public Officers Law §86[3]). FOIL defines “judiciary” as “the courts of the state, including any municipal or district court, whether or not of record” (Public Officers Law §86[1]). In Matter of Dolce v. Nassau County Traffic & Parking Violations Agency (7 NY3d 492, 498), the Court of Appeals stated that for purposes of jurisdiction over certain matters, the TPVA is “an arm of the District Court,” so that matters pending in the TPVA are considered to be pending in the District Court. Accordingly, it is indisputable that, at least for certain purposes, the TPVA is part of the judiciary. The Supreme Court erred, however, in holding that the TPVA is entirely judicial and thus not subject to FOIL at all. The Court of Appeals expressly recognized in Matter of Dolce v. Nassau County Traffic & Parking Violations Agency that the TPVA is a “hybrid agency that exercises both prosecutorial and adjudicatory responsibilities,” and that the prosecutorial function is “distinct from the adjudicatory function” (id. at 498). Accordingly, to the extent that a TPVA record concerns the nonadjudicatory responsibilities of the TPVA, it is not exempt from disclosure under the definition of “agency” in Public Officers Law §86(3). Without examination of the records that the petitioner seeks, the Supreme Court cannot make a determination as to whether they are exempt from disclosure as records of the “judiciary” (Public Officers Law §86[1], [3]).The parties’ remaining contentions are without merit.Accordingly, we remit the matter to the Supreme Court, Nassau County, for an in camera examination of the TPVA documents requested by the petitioner and a new determination thereafter, including as to whether the petitioner may be entitled to an award of an attorney’s fee.DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Balkin, J.P.; Hall, Hinds-Radix and Christopher, JJ.MATTER of Susan Calenda, res, v. Phillip Calenda, ap — (Docket No. F-4664-15/15A)Appeals from (1) an order of the Family Court, Westchester County (Rosa Cabanillas-Thompson, S.M.), entered October 14, 2016, and (2) an order of that court (Nilda Morales Horowitz, J.) entered February 8, 2017. The order entered October 14, 2016, after a hearing, granted the mother’s petition for an upward modification of the father’s child support obligation. The order entered February 8, 2017, denied the father’s objections to the order entered October 14, 2016.ORDERED that the appeal from the order entered October 14, 2016, is dismissed, as that order was superseded by the order entered February 8, 2017; and it is further,ORDERED that the order entered February 8, 2017, is affirmed; and it is further,ORDERED that one bill of costs is awarded to the mother.The parties, who were married in 1999, have two children born of the marriage. On May 21, 2010, the parties entered into a stipulation of settlement that was incorporated, but not merged, into a judgment of divorce dated October 4, 2010. Based upon adjusted gross income of $230,000 attributed to the father and $58,606 attributed to the mother, the stipulation provided, among other things, that the father was to pay child support in the sum of $4,500 per month. The stipulation of settlement further provided, inter alia, that if the father earned more than $230,000 in gross income for the 2013 tax year, or any year thereafter, the mother would have the right to petition for an increase in child support upon a showing of a substantial change of circumstances (cf. L 2010, ch 182, §6; Matter of Thomas v. Fosmire, 138 AD3d 1007, 1007).In December 2014, the mother petitioned for an upward modification of the father’s child support obligation. At a hearing on the petition, evidence was presented that the father’s wages were more than $500,000 in 2013. The Support Magistrate granted the mother’s petition and increased the father’s child support obligation to $7,125 per month. The father filed objections to the Support Magistrate’s order, and the Family Court denied his objections. The father appeals.The Support Magistrate properly determined that there had been a substantial change of circumstances warranting an upward modification of the father’s child support obligation. ”In determining whether there has been a change in circumstances warranting a modification of a parent’s child support obligation, the court must consider several factors, including the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children” (Matter of Baumgardner v. Baumgardner, 126 AD3d 895, 897 [internal quotation marks omitted]; see Matter of Brescia v. Fitts, 56 NY2d 132, 141; Matter of Fantel v. Stamatatos, 59 AD3d 717, 718). Under the circumstances of this case, the significant increase in the father’s income between the time of the stipulation and the time of the application for modification, as well as a showing of increased expenses related to the children, depletion of the mother’s assets, and her substantial debt, warranted a new determination and an upward modification of the father’s child support obligation (see Matter of Baumgardner v. Baumgardner, 126 AD3d at 897; Matter of Braun v. Abenanti, 103 AD3d 717, 719; Matter of Green v. Silver, 96 AD3d 843, 845). Accordingly, the Family Court properly denied the father’s objections to the Support Magistrate’s order.BALKIN, J.P., HALL, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Leventhal, Barros and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Elijah Foster-Bey, ap — (Ind. No. 9239/10)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joel M. Goldberg, J.), rendered November 20, 2013, convicting him of assault in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The Supreme Court providently exercised its discretion in denying the defendant’s motion to exclude, or, alternatively, to conduct a hearing pursuant to Frye v. United States (293 F 1013 [DC Cir]) to determine the admissibility of, expert testimony relating to low copy number (LCN) DNA testing and the forensic statistical tool (FST). ”A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony” (People v. LeGrand, 8 NY3d 449, 458). When the Supreme Court made its ruling in this case, a court of coordinate jurisdiction, upon conducting an extensive Frye hearing, had determined that LCN DNA testing was not a novel scientific technique, and that, when properly performed, it is generally accepted as reliable in the forensic scientific community (see People v. Megnath, 27 Misc 3d 405, 413 [Sup Ct, Queens County]; see also People v. Gonzalez, 155 AD3d 507; People v. Garcia, 39 Misc 3d 482 [Sup Ct, Bronx County]). The Supreme Court providently exercised its discretion in relying upon that determination, as well as the determinations of other courts of coordinate jurisdiction accepting that LCN DNA testing and the FST are not novel and are generally accepted by the relevant scientific community (see People v. Garcia, 39 Misc 3d at 490; People v. Megnath, 27 Misc 3d at 413).The defendant’s contention that the introduction of DNA evidence violated his Sixth Amendment right to confront witnesses against him (see Crawford v. Washington, 541 US 36) is unpreserved for appellate review (see People v. Bones, 17 AD3d 689, 690), and we decline to review it in the exercise of our interest of justice jurisdiction.The defendant’s contention that the Supreme Court’s Allen charge (see Allen v. United States, 164 US 492) was coercive is unpreserved for appellate review, as defense counsel neither requested a specific charge nor objected to the charge as given by the court (see CPL 470.05[2]; People v. Drummond, 143 AD3d 836; People v. Coad, 60 AD3d 963, 964). We decline to review this contention in the exercise of our interest of justice jurisdiction.The defendant’s remaining contentions are without merit.MASTRO, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Balkin, Hall, Duffy and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Elden Grenardo, ap — (Ind. No. 799/15)Paul Skip Laisure, New York, NY (Sean H. Murray of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Thomas Ross of counsel; Ruby D. Andrade on the memorandum), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Cassandra Mullen, J.), imposed April 26, 2016, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The defendant’s purported waiver of the right to appeal was invalid (see People v. Bradshaw, 18 NY3d 257, 264; People v. Johnson, 135 AD3d 960) and, thus, does not preclude review of his excessive sentence claim. However, contrary to the defendant’s contention, the period of postrelease supervision imposed as part of the sentence was not excessive (see People v. Jordan, 153 AD3d 1433; People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., BALKIN, HALL, DUFFY and BRATHWAITE NELSON, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.PEOPLE, res, v. Frederick Smith, ap — Seymour W. James, Jr., New York, NY (Rachel L. Pecker of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Daniel Morales on the brief), for respondent.Appeal by the defendant from an order of the Supreme Court, Kings County (Elizabeth Foley, J.), dated March 17, 2014, 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 his plea of guilty, of rape in the third degree. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), the Supreme Court determined that the defendant was a presumptive level two sex offender based on his total score of 80 points on the risk assessment instrument. However, upon the recommendation of the Board of Examiners of Sex Offenders and the People’s request, the court determined that an upward departure from the presumptive risk level was warranted under the circumstances. Accordingly, the court designated the defendant a level three sex offender. On appeal, the defendant contends that the People failed to sustain their burden of establishing the existence of an aggravating factor warranting an upward departure from the presumptive risk level.Where, as here, the People seek an upward departure, they must identify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the risk assessment instrument, and prove the facts in support of the aggravating factor by clear and convincing evidence (see People v. Gillotti, 23 NY3d 841, 861; People v. Shim, 139 AD3d 68, 76; People v. DeDona, 102 AD3d at 68; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). Once this burden is satisfied, the SORA court may, in its discretion, choose to upwardly depart if the factor indicates that the point score on the risk assessment instrument has resulted in an under-assessment of the offender’s actual risk to the public (see People v. Gillotti, 23 NY3d at 861; People v. DeDona, 102 AD3d at 68; People v. Wyatt, 89 AD3d 112, 121-123).Here, the People sustained their burden of identifying and proving an aggravating factor that was not adequately taken into account by the risk assessment instrument and that tended to establish a higher likelihood of reoffense or danger to the community. The record demonstrated that, in addition to several prior convictions that resulted in points scored on the risk assessment instrument, the defendant’s extensive criminal history included over 25 additional prior convictions, some of which were violent felony convictions. Under the circumstances of this case, the Supreme Court properly relied upon the defendant’s numerous additional prior convictions as a basis for its determination to upwardly depart from the presumptive risk level (see People v. Maldonado, 127 AD3d 714, 715; People v. Newman, 71 AD3d 488, 488; People v. Vives, 57 AD3d 312, 313; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; cf. People v. Ruland, 128 AD3d 1036, 1037-1038). Thus, the court providently exercised its discretion in granting the People’s application for an upward departure from the presumptive sex offender risk level.The defendant’s contention that an upward departure is not warranted because he is less likely to re-offend due to his age of 57 years is unpreserved for appellate review, since the defendant did not raise this issue at the SORA hearing (see People v. Locklear, 154 AD3d 888; People v. Cosby, 154 AD3d 789). In any event, the published works and studies cited in support of the defendant’s position that offenders who are over age 50 have a reduced rate of recidivism were not submitted at the hearing and are dehors the record (see People v. Cosby, 154 AD3d 789).The defendant’s remaining contention need not be reached in light of our determination.LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Balkin, J.P.; Hall, Hinds-Radix and Christopher, JJ.Patricia Deerin, etc., ap, v. Ocean Rich Foods, LLC, etc. res — (Index No. 600536/14)In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Nassau County (Driscoll, J.), dated February 6, 2015, as granted those branches of the defendants’ converted motion which were for summary judgment dismissing the first, third through fifth, and eighth causes of action and denied her cross motion pursuant to CPLR 3025 for leave to amend her complaint and to disqualify the defendants’ counsel, and (2) so much of an order of the same court dated August 6, 2015, as denied that branch of her motion pursuant to CPLR 2221(e) which was for leave to renew her opposition to that branch of the defendants’ converted motion which was for summary judgment dismissing the fifth cause of action.ORDERED that the order dated February 6, 2015, is modified, on the law, (1) by deleting the provision thereof granting that branch of the defendants’ converted motion which was for summary judgment dismissing the fifth cause of action, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof denying that branch of the plaintiff’s cross motion which was to disqualify the defendants’ counsel, and substituting therefor a provision granting that branch of the plaintiff’s cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements; and it is further,ORDERED that the appeal from the order dated August 6, 2015, is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the order dated February 6, 2015.In 2006, the defendants Richard Marino and Dean Berman, along with the plaintiff’s decedent, Douglas Deerin (hereinafter collectively the members), formed Ocean Rich Foods, LLC (hereinafter Ocean Rich), in which they were equal members. In 2008, Ocean Rich purchased three $1.5 million life insurance policies, each of which insured the life of one of the three members. Ocean Rich was the beneficiary of each of these policies.In January 2013, the plaintiff’s decedent died, and the plaintiff was appointed as executor of his estate. The proceeds of the policy insuring the decedent’s life (hereinafter the subject insurance policy) were paid to Ocean Rich. The plaintiff then commenced this action, inter alia, to recover damages for breach of contract, breach of the implied covenant of good faith and fair dealing, tortious interference with contract, unjust enrichment, and for a distribution upon withdrawal pursuant to Limited Liability Company Law §509. She alleged in the complaint that in 2009, the members had entered into a “cross-purchase agreement” (hereinafter the agreement), in which they agreed that, inter alia, upon the death of a member, Ocean Rich would pay the proceeds of the policy insuring that member’s life to that member’s estate “as part payment or payment in full, as the case may be, on account of the purchase price of the interest of the deceased member.” The plaintiff alleged that, after the decedent’s death, Ocean Rich had failed to pay the proceeds of the subject insurance policy to his estate.The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. They submitted with their motion an unexecuted copy of the agreement, and asserted that the members had decided not to execute the agreement. Pursuant to CPLR 3211(c), the Supreme Court converted the motion to one for summary judgment and directed the parties to submit any additional evidence they wished it to consider. The defendants submitted affidavits from Marino and Berman in which they stated that the members had decided not to execute the agreement. Thereafter, the plaintiff cross-moved pursuant to CPLR 3025 for leave to amend her complaint and to disqualify the defendants’ counsel on the basis of conflict of interest.In an order dated February 6, 2015, the Supreme Court, inter alia, granted those branches of the defendants’ converted motion which were for summary judgment dismissing the causes of action to recover damages for breach of contract, breach of the implied covenant of good faith and fair dealing, tortious interference with contract, and unjust enrichment, and for a distribution upon withdrawal pursuant to Limited Liability Company Law §509. The court also denied the plaintiff’s cross motion in its entirety. The plaintiff then moved, inter alia, for leave to renew her opposition to that branch of the defendants’ converted motion which was for summary judgment dismissing the cause of action for a distribution upon withdrawal pursuant to Limited Liability Company Law §509. In an order dated August 6, 2015, the court denied that motion. The plaintiff appeals from both orders.In general, the existence of a contract can be proven even if there is not a writing signed by the party to be charged (see Geha v. 55 Orchard St., LLC, 29 AD3d 735, 736; see also Stonehill Capital Mgt. LLC v. Bank of the W., 28 NY3d 439, 451). ”There is sufficient evidence that a contract has been made if… [t]here is a note, memorandum or other writing sufficient to indicate that a contract has been made, signed by the party against whom enforcement is sought” (General Obligations Law §5-701[b][3][d]; see Scheck v. Francis, 26 NY2d 466, 472). Nevertheless, “[w]here it is clear from the writings themselves that they do not constitute a memorandum sufficient to satisfy the statute, it is immaterial… whether or not they accurately reflect and contain all of the pertinent terms of a prior alleged oral agreement” (Scheck v. Francis, 26 NY2d at 472 [internal quotation marks and citations omitted]; see I.S. Design v. Gasho of Japan, Intl., 269 AD2d 150, 151). Further, General Obligations Law §5-701(a)(1) renders unenforceable, inter alia, any oral agreement which “is not to be completed before the end of a lifetime.”Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the causes of action to recover damages for breach of contract, breach of the implied covenant of good faith and fair dealing, and tortious interference with contract, by submitting evidence that the agreement was never executed by the members of Ocean Rich, and therefore does not satisfy the statute of frauds. Although the plaintiff contends that, pursuant to CPLR 3212(f), she should have been permitted an opportunity to obtain discovery so that she could prove the existence of the agreement via other documents, she offered only “mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process[, which] is insufficient to deny the [defendants'] motion” (Pierre v. Demoura, 148 AD3d 736, 737; see Lynn v. McCormick, 153 AD3d 688, 689; HSBC Bank USA, N.A. v. Armijos, 151 AD3d 943, 944; Bentick v. Gatchalian, 147 AD3d 890, 892). Since the alleged promise upon which the plaintiff relied—that Ocean Rich would purchase the decedent’s interest in it from his estate with the proceeds of the subject insurance policy—could not, by its terms, “be completed before the end of a lifetime,” the Supreme Court properly granted those branches of the defendants’ converted motion which were for summary judgment dismissing the first, third, and fourth causes of action (General Obligations Law §5-701[a][1]; see DeThomasis v. Viviano, 148 AD3d 1338, 1340; Klein v. Jamor Purveyors, 108 AD2d 344, 347; Dreher v. Levy, 67 AD2d 438, 439-440; see also General Obligations Law §5-701[a][9]).“The elements of a cause of action to recover for unjust enrichment are (1) the defendant was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” (Travelsavers Enters., Inc. v. Analog Analytics, Inc., 149 AD3d 1003, 1006 [internal quotation marks omitted]; see Swartz v. Swartz, 145 AD3d 818, 829; GFRE, Inc. v. U.S. Bank, N.A., 130 AD3d 569, 570). Since Ocean Rich purchased the subject insurance policy, it was not enriched at the plaintiff’s expense, nor is it against equity and good conscience to permit Ocean Rich to retain the proceeds of the policy. Accordingly, the Supreme Court also properly granted that branch the defendants’ converted motion which was for summary judgment dismissing the eighth cause of action.Pursuant to Limited Liability Company Law §509, unless otherwise provided in an operating agreement, upon withdrawing as a member of a limited liability company, a withdrawing member “is entitled to receive, within a reasonable time after withdrawal, the fair value of his or her membership interest in the limited liability company as of the date of withdrawal.” Here, the only evidence supporting the defendants’ claim that they offered the plaintiff the fair value of the decedent’s interest in Ocean Rich as of the date of withdrawal was their attorney’s affirmation, which had no probative or evidentiary value (see Onewest Bank, FSB v. Michel, 143 AD3d 869, 871). Accordingly, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the fifth cause of action, which sought a distribution upon withdrawal pursuant to Limited Liability Company Law §509. The Supreme Court should therefore have denied that branch of the defendants’ converted motion without regard to the sufficiency of the papers submitted in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).“A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” (Gjoni v. Swan Club, Inc., 134 AD3d 896, 897 [internal quotation marks omitted]; see Tekni-Plex, Inc. v. Meyer & Landis, 89 NY2d 123, 131; Sharifi-Nistanak v. Coccia, 119 AD3d 765). ”A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted” (Kelleher v. Adams, 148 AD3d 692, 692 [internal quotation marks omitted]; see Matter of Rovner v. Rantzer, 145 AD3d 1016; Lipschitz v. Stein, 65 AD3d 573, 576; Gulino v. Gulino, 35 AD3d 812). ”The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination” (Kelleher v. Adams, 148 AD3d at 692-693 [internal quotation marks omitted]; see Matter of Rovner v. Rantzer, 145 AD3d at 1016; Lipschitz v. Stein, 65 AD3d at 576; Gulino v. Gulino, 35 AD3d at 812). However, doubts as to the existence of a conflict of interest are resolved in favor of disqualification in order to avoid even the appearance of impropriety (see Gjoni v. Swan Club, Inc., 134 AD3d at 897; Matter of Fleet v. Pulsar Constr. Corp., 143 AD2d 187, 188).“‘One who has served as attorney for a corporation may not represent an individual shareholder in a case in which his interests are adverse to other shareholders’” (Morris v. Morris, 306 AD2d 449, 452, quoting Matter of Greenberg [Madison Cabinet & Interiors], 206 AD2d 963, 965; see Gordon v. Ifeanyichukwu Chuba Orakwue Obiakor, 117 AD3d 681, 683). Here, the plaintiff alleged in an affidavit that the defendants’ counsel was involved in the formation of Ocean Rich, and the defendants’ counsel admitted that he had represented Ocean Rich in “various past matters.” Counsel’s prior representation of Ocean Rich “was in fact represent[ation of] its [three] shareholders,” whose competing interests are at issue in this action (Matter of Fleet v. Pulsar Constr. Corp., 143 AD2d at 189). Likewise, counsel’s involvement in the formation of Ocean Rich and his representation of it against third parties was “substantially related” to the present action (Gjoni v. Swan Club, Inc., 134 AD3d at 897 [internal quotation marks omitted]; see Tekni-Plex, Inc. v. Meyer & Landis, 89 NY2d at 131; Sharifi-Nistanak v. Coccia, 119 AD3d at 765). Since the defendants’ counsel was “in a position to receive relevant confidences” from the decedent, whose estate’s interests “are now adverse to the defendant[s'] interests,” the Supreme Court should have granted that branch of the plaintiff’s cross motion which was to disqualify the defendants’ counsel (Gordon v. Ifeanyichukwu Chuba Orakwue Obiakor, 117 AD3d at 683; see Tekni-Plex, Inc. v. Meyer & Landis, 89 NY2d at 131; Gjoni v. Swan Club, Inc., 134 AD3d at 897; Sharifi-Nistanak v. Coccia, 119 AD3d at 765).The plaintiff’s remaining contention, that the Supreme Court erred in denying that branch of her cross motion which was for leave to amend her complaint, is without merit (see Grant v. Brooklyn Ctr. for Rehabilitation & Residential Health Care, LLC, 153 AD3d 798; Epstein v. Fried, 150 AD3d 691, 692-693; Strunk v. Paterson, 145 AD3d 700, 701; Markowits v. Friedman, 144 AD3d 993, 995).BALKIN, J.P., HALL, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Balkin, Hall and Lasalle, JJ.PEOPLE, etc., res, v. John Giuca, ap — (Ind. No. 8166/04)Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Danny K. Chun, J.), entered June 13, 2016, which, after a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Alan D. Marrus, J.) rendered October 19, 2005, convicting him of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the order is reversed, on the law and the facts, the defendant’s motion to vacate the judgment is granted, the judgment is vacated, and the matter is remitted to the Supreme Court, Kings County, for a new trial.On October 12, 2003, at approximately 6:40 a.m., Mark Fisher was murdered a few blocks from the defendant’s home. Fisher, along with several other individuals, including the defendant and the codefendant, Antonio Russo, had been at the defendant’s home prior to the murder. The primary evidence against the defendant at trial came from three witnesses who testified regarding conflicting inculpatory statements made to them by the defendant.One of those witnesses, John Avitto, who had a lengthy criminal history and been incarcerated with the defendant on Rikers Island, testified regarding inculpatory statements made to him by the defendant while they were incarcerated together. At the time of his trial testimony, Avitto had pleaded guilty to a felony burglary charge. Under the terms of his plea agreement, Avitto was to successfully complete a drug treatment program. If Avitto failed to successfully complete the program, he faced an alternate sentence of 3 to 7 years incarceration.During direct examination by the prosecutor at the defendant’s trial, Avitto testified, as relevant to this appeal, that he had been doing well in the drug program, and that he had one relapse after which he called his caseworker and asked for further help. He further testified that he first contacted the police with respect to the defendant’s case sometime in June of 2005, and that he met with either the prosecutor or detectives four times prior to testifying. He also testified that he was not promised or given anything, nor did he ask for anything, in exchange for his testimony.On cross-examination, Avitto testified that he left the drug program without permission on June 9, 2005, and appeared in court for his criminal case on June 13, 2005. He also testified that police officers associated with the defendant’s case assisted him in getting to court on that day. He admitted to relapsing upon leaving the program on June 9, 2005, and then again on August 24, 2005. He denied contacting the police or the prosecution to receive assistance with his own case, and denied contacting the police immediately after leaving the drug program.During redirect examination by the prosecutor, Avitto reiterated that after he left the drug program, he voluntarily contacted his caseworker and appeared with him in court on June 13, 2005, and that the court released him and gave him another opportunity to complete the program. Avitto testified similarly with respect to his second relapse. Avitto also testified that he had pleaded guilty in the burglary case months before he spoke to the police about the defendant’s case, and he reiterated that he did not contact the police about the defendant’s case because he had left the drug program.After Avitto’s testimony, the defendant’s attorney made a request for any Rosario material (see People v. Rosario, 9 NY2d 286) regarding Avitto, and specifically any information regarding his contact with the police. The prosecutor stated that she was present for all interviews with Avitto, and that there were no notes taken and no documents generated.During summation, the prosecutor repeated and emphasized Avitto’s testimony. Furthermore, the prosecutor asserted that there was no evidence that Avitto received any benefit or consideration for his testimony, that when Avitto left the drug program he contacted his caseworker right away, that it was not surprising that a judge would give Avitto multiple chances when he was showing himself to be acting responsibly, and that Avitto contacted the police with information regarding the defendant’s case because “for once he tried to do something right.”The defendant was convicted of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree. He was sentenced to a prison term of 25 years to life on the murder conviction, to run concurrently with the lesser sentences imposed on the other convictions. The judgment was affirmed on direct appeal (see People v. Giuca, 58 AD3d 750).Thereafter, the defendant moved pursuant to CPL 440.10 to vacate the judgment, contending, inter alia, that the People violated Brady v. Maryland (373 US 83) and knowingly used false and misleading testimony.At a hearing on the motion, the evidence demonstrated that after Avitto left the drug program on June 9, 2005, he contacted police that same day regarding providing information on the defendant’s case, and that a warrant was issued for Avitto’s arrest on June 10, 2005. The evidence further demonstrated that Avitto met with detectives and the prosecutor on June 13, 2005. During that meeting, Avitto informed the detectives and the prosecutor that he had left the drug program, and that a warrant had been issued for his arrest. Furthermore, the detectives and the prosecutor, in addition to his caseworker, accompanied Avitto when he returned to court on June 13, 2005. The prosecutor appeared on behalf of the District Attorney’s office and informed the court that Avitto was cooperating in a murder investigation. Moreover, there was evidence which demonstrated that the prosecutor discussed with Avitto’s caseworker and the court the possibility of Avitto entering another drug program, and having him reside with his mother. The defendant demonstrated that the District Attorney’s office did not provide such information to the defense prior to trial.Additional evidence demonstrated: that Avitto had not done well while in the drug program; that he had violated the conditions of his plea agreement on numerous occasions; that he was discharged from one drug program for bringing cigarettes into the program and distributing them to other patients; and that during at least one of several court appearances related to violations which occurred subsequent to June 9, 2005, the issue of Avitto’s cooperation and upcoming testimony was mentioned. Moreover, the District Attorney’s office had sent an email communication to the agency overseeing Avitto’s drug treatment, requesting that his case be marked “for special attention,” and that the District Attorney’s office be kept posted as to his progress. The defendant demonstrated that none of this additional information was provided to the defense prior to trial.Following the hearing, the Supreme Court denied the defendant’s motion to vacate the judgment. We reverse.The People have a duty to disclose to the defense evidence in its possession that is favorable to the accused (see Brady v. Maryland, 373 US 83; People v. Steadman, 82 NY2d 1, 7). The disclosure of evidence affecting credibility falls within this general rule (see Giglio v. United States, 405 US 150, 154; People v. Steadman, 82 NY2d at 7; People v. Novoa, 70 NY2d 490, 496). Thus, the “existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness, is evidence which must be disclosed under Brady principles” (People v. Cwikla, 46 NY2d 434, 441; see Giglio v. United States, 405 US at 153-154; People v. Steadman, 82 NY2d at 7; People v. Novoa, 70 NY2d at 496). ”It is not the form of a promise, or any label the parties may affix to it, that triggers the prosecutor’s duty of disclosure” (People v. Novoa, 70 NY2d at 497). ”Rather, the obligation arises from the fact that the prosecutor and the witness have reached an understanding in which the witness’s cooperation has been exchanged for some quid pro quo on the part of the prosecutor. Once such an understanding has been reached, it is for the jury to determine how much value to assign it in terms of assessing the witness’s credibility” (id.).Prosecutors must not only disclose exculpatory or impeaching evidence but must also correct the knowingly false or mistaken material testimony of a prosecution witness (see People v. Colon, 13 NY3d 343, 349; see also People v. Steadman, 82 NY2d at 7; People v. Novoa, 70 NY2d at 496). ”Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are necessary unless there is no reasonable possibility that the error contributed to the conviction” (People v. Colon, 13 NY3d at 349 [internal quotation marks omitted]). ”By their very nature, benefits conferred on a witness by a prosecutor provide a basis for the jury to question the veracity of a witness on the theory that the witness may be biased in favor of the People. For this reason, it is important that witnesses provide truthful testimony when questioned about the receipt of such benefits, and the People must be vigilant to avoid misleading the court or jury” (id. at 350).To establish a Brady violation, a defendant must show that the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature, the evidence was suppressed by the prosecution, and prejudice arose because the suppressed evidence was material (see People v. Fuentes, 12 NY3d 259, 263; see also People v. Garrett, 23 NY3d 878, 885). In New York, where, as here, a defendant makes a specific request for undisclosed evidence, materiality is established if there exists a reasonable possibility that it would have changed the result of the proceedings (see People v. Fuentes, 12 NY3d at 263).Based on the evidence presented at the defendant’s trial and at the hearing, we find that the prosecutor had a duty to disclose the circumstances surrounding Avitto’s initial contact with the police regarding the defendant’s case, the circumstances surrounding the prosecutor’s appearance in court with Avitto on June 13, 2005, and the information that the prosecutor provided to the court at that appearance (see People v. Steadman, 82 NY2d 1; People v. Novoa, 70 NY2d 490). The prosecutor further had a duty to correct Avitto’s testimony regarding his contact with her and with detectives, the circumstances surrounding that contact, and his progression in drug treatment (see People v. Colon, 13 NY3d 343; People v. Steadman, 82 NY2d 1; People v. Novoa, 70 NY2d 490).While the evidence presented at the hearing did not demonstrate “the existence of an express promise” between Avitto and the District Attorney’s office, there was “nonetheless a strong inference” of an expectation of a benefit “which should have been presented to the jury for its consideration” (People v. Cwikla, 46 NY2d at 442). Avitto’s credibility was “an important issue in the case” (Giglio v. United States, 405 US at 155) and a “pivotal consideration” for the jury (People v. Steadman, 82 NY2d at 8), and the nondisclosed evidence was certainly impeaching in nature.The evidence at issue here—Avitto’s immediate contact with the police on June 9, 2005, after leaving the drug program, his subsequent court appearance with detectives and the prosecutor on June 13, 2005, when he was released on his own recognizance, as well as his ability to remain out of custody despite poor progress in his drug treatment and numerous violations—was of such a nature that the jury could have found that, despite Avitto’s protestations to the contrary, “there was indeed a tacit understanding” between Avitto and the prosecution that he would receive or hoped to receive a benefit for his testimony (People v. Cwikla, 46 NY2d at 441). This evidence was material in nature, and its nondisclosure prejudiced the defendant, as it constituted impeachment material and tended to show a motivation for Avitto to lie (see id. at 442).Accordingly, the prosecutor was not only required to disclose this evidence to the defendant, but was further required to clarify “the record by disclosing all the details of what had actually transpired” between the District Attorney’s office and Avitto (People v. Steadman, 82 NY2d at 8). The prosecutor further had the obligation to correct any misleading or false testimony given by Avitto at trial regarding his contact with detectives and the prosecutor, and his progression in drug treatment (see People v. Colon, 13 NY3d 343; People v. Novoa, 70 NY2d 490). These errors were further compounded when the prosecutor reiterated and emphasized Avitto’s misleading testimony during summation (see People v. Colon, 13 NY3d 343; People v. Novoa, 70 NY2d 490; People v. Cwikla, 46 NY2d 434; see also People v. Taylor, 26 NY3d 217).Giving proper deference to the credibility findings of the hearing court, we nevertheless find that the nondisclosure of this evidence by the prosecution, even if it was as a result of negligence and not by design, created a reasonable possibility that the prosecution’s errors affected the jury’s verdict. Accordingly, reversal and a new trial are necessary (see Giglio v. United States, 405 US at 154-155; People v. Colon, 13 NY3d at 349; see also People v. Cwikla, 46 NY2d at 442).In light of our determination, we need not reach the defendant’s remaining contentions.DILLON, J.P., BALKIN, HALL and LASALLE, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.PEOPLE, etc., res, v. Allen Stanford, ap — (Ind. No. 3791/15)Paul Skip Laisure, New York, NY, for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Alexander Brennan on the brief), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joseph Gubbay, J.), rendered February 17, 2016, convicting him of criminal mischief in the fourth degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review two orders of protection issued at the time of sentencing.ORDERED that upon the appeal from the judgment, the order of protection issued in favor of Angel Serreiras is vacated, as a matter of discretion in the interest of justice; and it is further,ORDERED that the judgment is affirmed.The defendant contends, and the People acknowledge, that the order of protection issued in favor of Angel Serreiras must be vacated because such person does not exist and the other order is a duplicate of the order of protection, except that it misspelled the name of the person in whose favor the order was issued. Accordingly, we vacate this order of protection, as it was the result of a clerical error.Contrary to the defendant’s contentions, the Supreme Court properly issued the remaining order of protection, as the person in whose favor that order was issued was the custodian of the subject damaged property (see CPL 530.13[4]; cf. People v. Creighton, 298 AD2d 774, 776).DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.PEOPLE, etc., res, v. David Hili, ap — (S.C.I. No. 14-00100)Jason M. Bernheimer, Katonah, NY, for appellant.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (William C. Milaccio and Jennifer Spencer of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Westchester County (Anne E. Minihan, J.), rendered May 21, 2015, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 NY3d 337, 341-342; People v. Lopez, 6 NY3d 248, 256-257; People v. Brown, 122 AD3d 133, 142-144). The defendant’s valid waiver of his right to appeal bars review of his challenge to the procedures used by the County Court in its determination regarding restitution (see People v. Callahan, 80 NY2d 273, 281; People v. Rohs, 140 AD3d 800, 800; People v. Burton, 69 AD3d 644, 644; People v. Ordover, 67 AD3d 824, 824; People v. Williams, 62 AD3d 730, 731; People v. Caba, 238 AD2d 603).The defendant’s contention that his attorney was ineffective is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus constitutes a “mixed claim” of ineffective assistance (People v. Maxwell, 89 AD3d 1108, 1109; see People v. Evans, 16 NY3d 571, 575 n 2). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 NY2d 824; People v. Brown, 45 NY2d 852; People v. McClurkin, 96 AD3d 784, 785; People v. Bruno, 73 AD3d 941, 942). Since the defendant’s claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding would be the appropriate forum for reviewing the claim in its entirety (see People v. McClurkin, 96 AD3d at 785; see generally People v. Freeman, 93 AD3d 805; People v. Maxwell, 89 AD3d at 1109).DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.NYCTL 2009-A Trust ap, v. Kimball Group, LLC, defendant-respondent def; 2232 Kimball Holdings, LLC, nonparty-res — (Index No. 8870/10)Appeal from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated February 17, 2015. The order, insofar as appealed from, denied those branches of the plaintiffs’ motion which were to substitute NYCTL 1998-2 Trust and Bank of New York, as collateral agent and custodian for the NYCTL 1998-2 Trust, as plaintiffs in this action and amend the caption accordingly and, in effect, for leave to renew that branch of their prior motion which was for an order of reference, which had been denied in an order of the same court (Jack M. Battaglia, J.) dated December 10, 2013.ORDERED that the order dated February 17, 2015, is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, those branches of the plaintiffs’ motion which were to substitute NYCTL 1998-2 Trust and Bank of New York, as collateral agent and custodian for the NYCTL 1998-2 Trust, as plaintiffs in this action and amend the caption accordingly and, in effect, for leave to renew that branch of their prior motion which was for an order of reference are granted, upon renewal, so much of the order dated December 10, 2013, as denied that branch of the plaintiffs’ prior motion which was for an order of reference is vacated, and that branch of the plaintiffs’ prior motion is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings, including the amendment of the caption in accordance herewith.In 2010, the plaintiffs commenced this action to foreclose a tax lien on certain real property owned by the defendant Kimball Group, LLC (hereinafter Kimball). Subsequently, the plaintiffs moved, among other things, for an order of reference to compute the amount due on the tax lien. In an order dated December 10, 2013, the Supreme Court denied that branch of the motion. Thereafter, the plaintiffs, in effect, moved for leave to renew that branch of their prior motion which was for an order of reference. They also moved to substitute NYCTL 1998-2 Trust and Bank of New York, as collateral agent and custodian for the NYCTL 1998-2 Trust, as plaintiffs and to amend the caption accordingly. In an order dated February 17, 2015, the court denied those branches of the plaintiffs’ motion. The plaintiffs appeal.Under the circumstances of this case, the Supreme Court should have granted that branch of the plaintiffs’ motion which was, in effect, pursuant to CPLR 2221(e) for leave to renew that branch of their prior motion which was for an order of reference (see Candlewood Holdings, Inc. v. Valle, 134 AD3d 872, 873-874; Wilder v. May Dept. Stores Co., 23 AD3d 646, 648; Tishman Constr. Corp. of N.Y. v. City of New York, 280 AD2d 374, 376-378; Strong v. Brookhaven Mem. Hosp. Med. Ctr., 240 AD2d 726). Moreover, upon renewal, the court should have granted that branch of the plaintiffs’ prior motion which was for an order of reference. The plaintiffs’ evidentiary submissions established their entitlement to an order of reference (see Administrative Code of the City of New York §11-336; see NYCTL 2011-A Trust v. Master Sheet Co, Inc., 150 AD3d 755, 756; NYCTL 2008-A Trust v. Trinco, Inc., 148 AD3d 1035, 1035-1036). Contrary to the contentions raised in opposition, the affidavit submitted by the plaintiffs in support of their motion was in admissible form (see CPLR 2309[b]; Federal Natl. Mtge. Assn. v. Yakaputz II, Inc., 141 AD3d 506, 507).The Supreme Court also should have granted that branch of the plaintiffs’ motion which was for leave to substitute NYCTL 1998-2 Trust and Bank of New York, as collateral agent and custodian for the NYCTL 1998-2 Trust, as the plaintiffs and to amend the caption accordingly (see CPLR 1018, 3025[b]). The plaintiffs submitted evidence demonstrating that the tax lien was assigned to NYCTL 1998-2 Trust after the commencement of the action, and the plaintiffs’ request to substitute NYCTL 1998-2 Trust and Bank of New York, as collateral agent and custodian for the NYCTL 1998-2 Trust, as plaintiffs was unopposed (see Aurora Loans Servs., LLC v. Mandel, 148 AD3d 965, 967; Flushing Sav. Bank v. Latham, 139 AD3d 663, 664).DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Rivera, J.P.; Balkin, Hinds-Radix and Lasalle, JJ.PEOPLE, etc., res, v. John Dixon, ap — (Ind. No. 929/10)John Dixon, Napanoch, NY, appellant pro se.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Ayelet Sela of counsel), for respondent.Paul Skip Laisure, New York, NY (A. Alexander Donn of counsel), former appellate counsel.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated April 20, 2016 (People v. Dixon, 138 AD3d 1016), affirming a judgment of the Supreme Court, Queens County, rendered January 20, 2012.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).RIVERA, J.P., BALKIN, HINDS-RADIX and LASALLE, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Julio Diaz, ap — (Ind. No. 8015/12)Paul Skip Laisure, New York, NY (William Kastin of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Rhea A. Grob of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Danny K. Chun, J.), rendered March 12, 2014, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, the trial court properly admitted evidence of a prior altercation between the defendant and the victim, where the defendant chased the victim and struck him in the head with a bat. This evidence was probative of the defendant’s motive and intent, provided necessary background information on the nature of their relationship, and placed the charged conduct in context (see People v. Dorm, 12 NY3d 16, 19; People v. Williams, 27 AD3d 673; People v. James, 19 AD3d 616). Moreover, the probative value of the uncharged crime evidence outweighed the prejudice to the defendant, particularly considering the trial court’s limiting instruction (see People v. Dorm, 12 NY3d at 19; People v. Alvino, 71 NY2d 233, 242; People v. Rock, 65 AD3d 558, 559).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Javon Dowling, ap — (Ind. No. 10116/07)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Danny K. Chun, J.), rendered February 9, 2011, convicting him of conspiracy in the second degree and criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.A motion to withdraw a plea of guilty is addressed to the sound discretion of the Supreme Court, and, as a general rule, its determination will not be disturbed absent an improvident exercise of discretion (see CPL 220.60[3]; People v. Seeber, 4 NY3d 780, 780-781; People v. Douglas, 83 AD3d 1092, 1092).Here, the defendant’s contentions, in both his main brief and his pro se supplemental brief, that defense counsel’s ineffectiveness affected the voluntariness of his plea is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a “mixed claim of ineffective assistance” (People v. Maxwell, 89 AD3d 1108, 1109). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel as it relates to the voluntariness of his plea (cf. People v. Crump, 53 NY2d 824; People v. Brown, 45 NY2d 852). Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Freeman, 93 AD3d 805, 806; People v. Maxwell, 89 AD3d at 1109).Moreover, the record reflects that the defendant knowingly, voluntarily, and intelligently entered his plea of guilty (see People v. Fiumefreddo, 82 NY2d 536, 543). Accordingly, under the circumstances, the Supreme Court providently exercised its discretion in denying, without a hearing, the defendant’s motion to withdraw his plea of guilty (see People v. Zamani, 145 AD3d 1046, 1047; People v. Upson, 134 AD3d 1058, 1058).The defendant’s remaining contentions, raised in his pro se supplemental brief, are without merit.LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Mastro, J.P.; Chambers, Miller and Maltese, JJ.PNC Bank, National Association, plf, v. Young Dong Lee, defendant third-party plaintiff-ap; Gordon Brothers, LLC, third-party defendant- respondent third-party def — (Index No. 14314/13)Charles D. Hellman, Brooklyn, NY, for defendant third-party plaintiff-appellant.Gallet Dreyer & Berkey, LLP, New York, NY (David S. Douglas and Michael H. Bunis of counsel), for third-party defendant-respondent.In an action to recover payment on a personal guarantee, the defendant third-party plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (D. Hart, J.), dated September 29, 2014, as granted that branch of the motion of the third-party defendant Gordon Brothers, LLC, which was, in effect, pursuant to CPLR 3211(a)(7) to dismiss the twelfth cause of action of the third-party complaint.ORDERED that the order is affirmed insofar as appealed from, with costs.In the twelfth cause of action of the third-party complaint, the defendant third-party plaintiff (hereinafter the appellant) sought an accounting against the third-party defendant Gordon Brothers, LLC (hereinafter Gordon Brothers). The Supreme Court properly granted that branch of Gordon Brothers’ motion which was, in effect, pursuant to CPLR 3211(a)(7) to dismiss that cause of action, because the appellant failed to allege the existence of any or fiduciary relationship on which a duty to account may be predicated (see Kamisky v. Kahn, 20 NY2d 573, 581-582; Maor v. Blu Sand Intl. Inc., 143 AD3d 579; Royal Warwick S.A. v. Hotel Representative, Inc., 106 AD3d 451, 452; Center for Rehabilitation & Nursing at Birchwood, LLC v. S & L Birchwood, LLC, 92 AD3d 711, 713).MASTRO, J.P., CHAMBERS, MILLER and MALTESE, JJ., concur.By Dillon, J.P.; Leventhal, Hall and Connolly, JJ.PEOPLE, etc., res, v. Terrance Villanueva, ap — (Ind. No. 6244/09)Terrance Villanueva, Auburn, NY, appellant pro se.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.Paul Skip Laisure, New York, NY (David P. Greenberg of counsel), former appellate counsel.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated December 17, 2014 (People v. Villanueva, 123 AD3d 951), affirming a judgment of the Supreme Court, Kings County, rendered August 18, 2011.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).DILLON, J.P., LEVENTHAL, HALL and CONNOLLY, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.Reese Olivia McElhiney, etc. res, v. Half Hollow Hills Central School District, ap — (Index No. 18169/13)In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Asher, J.), dated September 22, 2016, which denied its motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.On April 18, 2012, while on the playground during recess for her kindergarten class at the Sunquam Elementary School, located in Melville, which is within the defendant, Half Hollow Hills Central School District, the infant plaintiff allegedly was injured when she came into contact with a screw that protruded from a fence. The infant plaintiff, by her mother, and her mother, individually (hereinafter together the plaintiffs), subsequently commenced this action against the defendant, alleging negligence and personal injuries. The defendant moved for summary judgment dismissing the complaint on the ground, among others, that the screw did not amount to a dangerous condition. The Supreme Court denied the motion, and the defendant appeals.Contrary to the defendant’s contentions, the submission of the transcripts of the parties’ deposition testimony, the transcripts of the plaintiffs’ General Municipal Law §50-h hearing testimony, and the affidavit of the defendant’s expert failed to establish, prima facie, that the screw in the fence did not constitute a dangerous condition (see Gorokhovskiy v. NYU Hosps. Ctr., 150 AD3d 966; Casiano v. St. Mary’s Church, 135 AD3d 685, 685; Doughim v. M & US Prop., Inc., 120 AD3d 466, 467; cf. Grigorian v. City of New York, 150 AD3d 1085; Witkowski v. Island Trees Pub. Lib., 125 AD3d 768). Moreover, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law because it failed to eliminate triable issues of fact as to whether it maintained its premises in a reasonably safe condition and did not create the alleged dangerous condition (see Taub v. JMDH Real Estate of Garden City Warehouse, LLC, 150 AD3d 1301, 1302; Kane v. Peter M. Moore Constn. Co., Inc., 145 AD3d 864, 868; Schwartz v. Gold Coast Rest. Corp., 139 AD3d 696, 697). Since the defendant failed to meet its prima facie burden as the movant, it is not necessary to review the sufficiency of the plaintiffs’ opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint.LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.Josephine Craig, ap, v. Meadowbrook Pointe Homeowners Association, Inc., res — (Index No. 601599/15)Stern & Szpigiel, LLP, Mineola, NY (Yisroel Szpigiel of counsel), for appellant.O’Connor, O’Connor, Hintz & Deveney, LLP, Melville, NY (Eileen M. Baumgartner of counsel), for respondent.In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Capetola, J.), entered December 21, 2016, which granted the defendant’s motion for summary judgment dismissing the complaint and denied her cross motion for summary judgment on the issue of liability.ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendant’s motion for summary judgment dismissing the complaint, and substituting therefor a provision denying the motion; as so modified, the order is affirmed, without costs or disbursements.On August 26, 2014, the plaintiff allegedly tripped and fell on an elevated piece of concrete on a pool deck in the condominium community known as Meadowbrook Pointe, located in Westbury. The plaintiff commenced this action against the defendant, the owner of the premises, to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint, contending that the condition alleged was trivial as a matter of law and, therefore, not actionable. The plaintiff cross-moved for summary judgment on the issue of liability. In the order appealed from, the Supreme Court granted the motion and denied the cross motion.A property owner has a duty to keep the property in a “reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Basso v. Miller, 40 NY2d 233, 241 [internal quotations marks omitted]; see Lee v. Acevedo, 152 AD3d 577). Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury (see Trincere v. County of Suffolk, 90 NY2d 976, 977). However, property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see id. at 977). There is no “minimal dimension test or per se rule” that the condition must be of a certain height or depth to be actionable (id. [internal quotation marks omitted]). In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the ‘time, place and circumstance’ of the injury” (id. at 978, quoting Caldwell v. Village of Is. Park, 304 NY 268, 274; see Hutchinson v. Sheridan Hill House Corp., 26 NY3d 66). ”‘Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable’” (Kavanagh v. Archdiocese of the City of N.Y., 152 AD3d 654, 655, quoting Schenpanski v. Promise Deli, Inc., 88 AD3d 982, 984).“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” (Hutchinson v. Sheridan Hill House Corp., 26 NY3d at 79; see Parente v. City of New York, 144 AD3d 1117). In support of its motion, the defendant submitted, inter alia, transcripts of the deposition testimony of the plaintiff and the assistant manager for the defendant’s property management company, as well as color copies of photographs of the area where the plaintiff tripped and fell. Viewed in the light most favorable to the plaintiff as the nonmovant, the evidence submitted by the defendant failed to eliminate all triable issues of fact as to the dimensions of the alleged defect and failed to establish, prima facie, that the condition was trivial and, therefore, not actionable (see Hutchinson v. Sheridan Hill House Corp., 26 NY3d at 82-83; Padarat v. New York City Tr. Auth., 137 AD3d 1095, 1096-1097; Mazza v. Our Lady of Perpetual Help R.C. Church, 134 AD3d 1073, 1075). Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff’s opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).Contrary to the plaintiff’s contention, she failed to establish her prima facie entitlement to judgment as a matter of law on the issue of liability. The plaintiff failed to establish, prima facie, that the raised portion of concrete decking at issue constituted a dangerous or defective condition. Accordingly, the Supreme Court properly denied the plaintiff’s cross motion for summary judgment on the issue of liability, regardless of the sufficiency of the defendant’s opposing papers (see id. at 853).LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Rivera, J.P.; Hall, Roman and Christopher, JJ.MATTER of Napa Partners, LLC, petitioner- res, v. Division of Housing and Community Renewal, appellant res — (Index No. 11928/15)Mark F. Palomino, New York, NY (Christina S. Ossi of counsel), for appellant.Golino Law Group, PLLC, New York, NY (Santo Golino of counsel), for petitioner-respondent.In a proceeding pursuant to CPLR article 78 to review a determination of the Deputy Commissioner of the New York State Division of Housing and Community Renewal dated August 4, 2015, which denied a petition for administrative review and affirmed a Rent Administrator’s determination that a rent overcharge had occurred, the New York State Division of Housing and Community Renewal appeals from a judgment of the Supreme Court, Queens County (Raffaele, J.), entered June 29, 2016, which granted the petition, annulled the determination dated August 4, 2015, and remitted the matter to the New York State Division of Housing and Community Renewal for further proceedings.ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.In a determination dated August 4, 2015, the Deputy Commissioner of the New York State Department of Housing and Community Renewal concluded that a Rent Administrator had properly taken into account rent reduction orders dated October 9, 1996, and July 7, 1997, in determining a tenant’s complaint regarding a rent overcharge. The landlord commenced this proceeding pursuant to CPLR article 78 to review the Deputy Commissioner’s determination.The Deputy Commissioner’s determination was not made in violation of lawful procedure, affected by an error of law, arbitrary and capricious, or an abuse of discretion (see CPLR 7803[3]; Scott v. Rockaway Pratt, LLC, 17 NY3d 739, 740; Matter of Cintron v. Calogero, 15 NY3d 347, 355-356; Matter of JP & Assoc. Corp. v. New York State Div. of Hous. & Community Renewal, 122 AD3d 740, 741). Accordingly, the Supreme Court should have denied the petition and dismissed the proceeding.RIVERA, J.P., HALL, ROMAN and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.Prince Oparaji ap, v. Kareem R. Vessup, etc., res — (Index No. 8791/14)Prince Oparaji and Maurice Oparaji, Rosedale, NY, appellants pro se.In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Queens County (Brathwaite Nelson, J.), dated June 25, 2015, as denied their motion for leave to enter a default judgment against the defendant, and, in effect, granted that branch of the defendant’s cross motion which was for leave to serve a late answer to the complaint to the extent of determining that the answer had been timely served, and (2) an order of the same court dated June 26, 2015, which denied the defendant’s motion, inter alia, for leave to reargue and renew that branch of his cross motion which was to dismiss the amended complaint.ORDERED that the order dated June 25, 2015, is affirmed insofar as appealed from, without costs or disbursements; and it is further,ORDERED that the appeal from the order dated June 26, 2015, is dismissed, without costs or disbursements.Although the Supreme Court erred in determining that the plaintiffs did not establish that the defendant failed to timely answer the amended complaint (see CPLR 3211[f]), it nevertheless properly denied the plaintiffs’ motion for leave to enter a default judgment against the defendant, and, in effect, granted the defendant’s cross motion for leave to serve a late answer. The defendant offered a reasonable excuse for the default, the plaintiffs were not prejudiced, the default was not willful, the defendant established that he had potentially meritorious defenses to the plaintiffs’ claims, and there is a strong public policy in favor of resolving cases on the merit (see Ingvarsdottir v. Gaines, Gruner, Ponzini & Novick, LLP, 144 AD3d 1097, 1099; Fried v. Jacob Holding, Inc., 110 AD3d 56; Harcztark v. Drive Variety, Inc., 21 AD3d 876, 876-877).The plaintiffs’ appeal from the order dated June 26, 2015, which denied the defendant’s motion, inter alia, for leave to reargue and renew his prior motion to dismiss the amended complaint, must be dismissed, as the plaintiffs are not aggrieved thereby (see CPLR 5511; Spielman v. Mehraban, 105 AD3d 943).DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.Raymond Smith, res, v. Peter W. Mollica, etc., et al., def, George J. Todd, etc. ap — (Index No. 26203/11)Appeals from an order of the Supreme Court, Kings County (Bert A. Bunyan, J.), dated August 17, 2015. The order, insofar as appealed from, denied, in part, the motion of the defendants George J. Todd and Roosevelt Hospital for summary judgment dismissing the complaint insofar as asserted against them, and denied the separate motion of the defendant Rafael Abreau for summary judgment dismissing the complaint insofar as asserted against him.ORDERED that the order is affirmed insofar as appealed from by the defendants George J. Todd and Roosevelt Hospital; and it is further,ORDERED that the order is reversed insofar as appealed from by the defendant Rafael Abreau, on the law, and the motion of that defendant for summary judgment dismissing the complaint insofar as asserted against him is granted; and it is further,ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendants George J. Todd and Roosevelt Hospital, and one bill of costs is awarded to the defendant Rafael Abreau, payable by the plaintiff.The plaintiff, who was diagnosed with an ulcer on his left great toe, began treatment with the defendant Rafael Abreau, a podiatrist, in March 2008. For more than one year, Abreau debrided (removed dead tissue from) the ulcerous area on an almost weekly basis, instructed the plaintiff on how to care for the wound, and, at times, prescribed antibiotics. In April 2009, Abreau referred the plaintiff to the defendant George J. Todd, a vascular surgeon, for treatment, and also continued to treat him until July 2009, when the plaintiff’s condition worsened and Abreau instructed the plaintiff to go to the hospital immediately for intravenous antibiotics.The plaintiff was admitted to the defendant Roosevelt Hospita1 (hereinafter the hospital) on July 28, 2009. The plaintiff was diagnosed with osteomyelitis, an infection of the bone, and gangrene, in the left great toe, and on July 30, 2009, Todd surgically removed the infected bone. The plaintiff also received a course of intravenous antibiotics. From August 2009 until November 2009, Todd continued to debride and otherwise treat the plaintiff’s ulcer. In December 2009, the plaintiff was diagnosed with gangrene and required a below-the-knee amputation of his left leg.The plaintiff thereafter commenced this medical malpractice action against, among others, Abreau, Todd, and the hospital, alleging that they negligently failed to recommend amputation of the left great toe before the infection progressed to the point where he required a below-the-knee amputation. Todd and the hospital (hereinafter together the hospital defendants) moved for summary judgment dismissing the complaint insofar as asserted against them. Abreau separately moved for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court granted the hospital defendants’ motion only to the extent of awarding summary judgment dismissing so much of the complaint as is predicated upon claims arising from Todd’s treatment of the plaintiff prior to July 28, 2009, and otherwise denied the motions. The hospital defendants and Abreau separately appeal.On a motion for summary judgment dismissing a medical malpractice cause of action, a defendant must make a prima facie showing either that he or she did not depart from good and accepted medical practice or that any departure was not a proximate cause of the plaintiff’s injuries (see Omane v. Sambaziotis, 150 AD3d 1126, 1128; Chance v. Felder, 33 AD3d 645). In opposition, a plaintiff must submit evidentiary facts or materials to rebut the defendant’s prima facie showing, so as to demonstrate the existence of a triable issue of fact (see Stukas v. Streiter, 83 AD3d 18, 23-24).Here, Abreau demonstrated, prima facie, that he did not depart from the applicable standard of care. Abreau submitted an affidavit from an expert who opined that Abreau’s treatment of debriding the plaintiff’s ulcer, prescribing antibiotics, and educating the plaintiff on proper wound care conformed with good and accepted medical practice (see Vogel v. Deutsch, 16 AD3d 489, 489-490). In opposition, the plaintiff failed to raise a triable issue of fact. The conclusory affidavit of the plaintiff’s expert failed to explain why amputation of the left great toe would have been warranted before July 27, 2009, particularly in light of the medical evidence that the ulcerous condition of the plaintiff’s toe, while chronic, showed signs of healing. Accordingly, the Supreme Court should have granted Abreau’s motion for summary judgment dismissing the complaint insofar as asserted against him.The hospital defendants established, prima facie, that they did not depart from good and accepted medical practice in their treatment of the plaintiff. The hospital defendants’ experts opined, among other things, that amputation of the left great toe was not warranted during their course of treating the plaintiff because the plaintiff did not show signs of wet gangrene during his July 2009 hospital admission and did not show such signs, or even signs of infection, after his release from the hospital through his last visit with Todd (see Guzzi v. Gewirtz, 82 AD3d 838, 839).In opposition, however, the plaintiff raised a triable issue of fact. The plaintiff’s expert opined that wet gangrene was, in fact, present during the July 2009 hospital admission. In light of this, as well as the plaintiff’s history of diabetes, longstanding ulcerated condition of the left great toe, and chronic osteomyelitis, the expert opined that it was a deviation from accepted medical practice for Todd not to have recommended removal of the infectious process through full amputation of the left great toe. Accordingly, the Supreme Court properly denied, in part, the hospital defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Ricardo Aguilera, ap — (Ind. No. 9617/12)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Alan D. Marrus, J.), rendered May 28, 2014, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.ORDERED that the judgment is affirmed.The defendant sought to suppress physical evidence recovered by the police after they entered an apartment, in which he was located, without a warrant. Following a hearing, the Supreme Court declined to suppress the physical evidence.Where a defendant moves to suppress evidence, “the People bear the burden of going forward to establish the legality of police conduct in the first instance” (People v. Hernandez, 40 AD3d 777, 778; see People v. Oden, 150 AD3d 1269, 1270; People v. Alvarado, 126 AD3d 803, 804). ”The factual findings and credibility determinations of a hearing court are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record” (People v. Oden, 150 AD3d at 1270 [internal quotation marks omitted]; see People v. Cartier, 149 AD2d 524, 524-525).Here, the Supreme Court properly concluded that the police conduct in entering the apartment was justified. The evidence presented at the suppression hearing established that the police had probable cause to believe that robbery suspects were inside the apartment where the defendant was found, and exigent circumstances justified the police entry without a warrant (see Spinelli v. United States, 393 US 410; Aguilar v. Texas, 378 US 108; People v. Ketcham, 93 NY2d 416; People v. Bigelow, 66 NY2d 417; People v. Vargas, 143 AD2d 699; People v. Green, 103 AD2d 362). Contrary to the defendant’s contention, the basis-of-knowledge prong of the Aguilar-Spinelli test was satisfied with respect to the information furnished by a female civilian present at the arrival of the police officers on the fourth floor, as there was sufficient circumstantial evidence from which it could reasonably be inferred that she reported what she had personally seen, rather than something she had been told (see People v. Ketcham, 93 NY2d at 420). In view of the evidence presented at the hearing, the Supreme Court properly denied suppression of the evidence seized from inside of the apartment (see People v. Desmarat, 38 AD3d 913, 915; People v. Green, 103 AD2d at 367; cf. People v. Sanders, 26 NY3d 773).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Rivera, J.P.; Hall, Cohen and Maltese, JJ.PEOPLE, etc., res, v. Jin Cheng Lin, ap — (Ind. No. 1705/05)Jin Cheng Lin, Stormville, NY, appellant pro se.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel), for respondent.Paul Skip Laisure, New York, NY (De Nice Powell of counsel), former appellate counsel.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated April 3, 2013 (People v. Jin Cheng Lin, 105 AD3d 761, affd 26 NY3d 701), modifying a judgment of the Supreme Court, Queens County, rendered July 14, 2008.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).RIVERA, J.P., HALL, COHEN and MALTESE, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.Diane Gervasi, etc., ap, v. Slobodan Blagojevic, res — (Index No. 9823/14)In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Queens County (Sampson, J.), entered October 19, 2016, which granted the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is denied.On January 5, 2014, at about 9:30 a.m., Frank Gervasi allegedly slipped and fell on ice on a sidewalk abutting the defendant’s property in Middle Village, Queens. After the fall, Frank Gervasi had no recollection of the incident due to his injuries, and his wife, Diane Gervasi, was appointed as his guardian. Diane Gervasi, individually and as guardian for the person and property of Frank Gervasi (hereinafter the plaintiff), commenced this personal injury action against the defendant. The defendant moved for summary judgment dismissing the complaint, arguing that he could not be held liable because the icy condition was created by precipitation during a storm in progress. The Supreme Court granted the motion. The plaintiff appeals.Under the “storm in progress” rule, a property owner will not be held liable in negligence for accidents occurring as a result of a slippery snow or ice condition “occurring during an ongoing storm or for a reasonable time thereafter” (Solazzo v. New York City Tr. Auth., 6 NY3d 734, 735; see Aronov v. St. Vincent’s Hous. Dev. Fund Co., Inc., 145 AD3d 648, 649; Ryan v. Taconic Realty Assoc., 122 AD3d 708, 709; Marchese v. Skenderi, 51 AD3d 642). Here, in support of his motion, the defendant submitted his deposition testimony, the plaintiff’s deposition testimony, and the affidavit of a meteorologist with attached certified climatological data, which demonstrated that, at the time of the accident, freezing rain was falling and the temperature was at or below freezing. Accordingly, the defendant established, prima facie, that a storm was ongoing at the time of Frank Gervasi’s fall (see Sherman v. New York State Thruway Auth., 27 NY3d 1019, 1021; Aronov v. St. Vincent’s Hous. Dev. Fund Co., Inc., 145 AD3d at 649-650; Burniston v. Ranric Enters. Corp., 134 AD3d 973, 973-974; Fisher v. Kasten, 124 AD3d 714, 715; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 AD3d 839, 839-840).In opposition, however, the plaintiff raised a triable issue of fact as to whether the icy condition that caused the fall existed prior to the storm in progress (see Burniston v. Ranric Enters. Corp., 134 AD3d at 973-974; McLaughlin v. 22 New Scotland Ave., LLC, 132 AD3d 1190, 1191; Penn v. 57-63 Wadsworth Terrace Holding, LLC, 112 AD3d 426; see also Ndiaye v. NEP W. 119th St. LP, 124 AD3d 427, 428; cf. Smith v. Christ’s First Presbyt. Church of Hempstead, 93 AD3d at 840; Alers v. La Bonne Vie Org., 54 AD3d 698, 699; Reagan v. Hartsdale Tenants Corp., 27 AD3d 716). At her deposition, the plaintiff testified that when she found Frank Gervasi lying on the sidewalk after the accident, the sidewalk was covered by a layer of ice that was approximately one inch thick. In her affidavit in opposition, the plaintiff again stated that the ice was approximately one inch thick. The plaintiff further submitted an affidavit from her own meteorologist, who opined that given the small amount of precipitation that fell on the morning of the accident prior to the accident, the one-inch-thick layer of ice was not the product of the storm in progress. To the contrary, the plaintiff’s expert meteorologist opined that the ice was caused by substantial precipitation from a storm that occurred one or two days (at least 30 hours) prior to the storm in progress. Contrary to the Supreme Court’s determination, this expert opinion was not speculative. The plaintiff’s expert relied upon undisputed meteorological records, considered the plaintiff’s description of the ice, and explained how the meteorological events led to the formation of the particular patch of ice. This was sufficient to raise a triable issue of fact (see Rodriguez v. Woods, 121 AD3d 474, 476; cf. McCord v. Olympia & York Maiden Lane Co., 8 AD3d 634, 636; cf. also Bernstein v. City of New York, 69 NY2d 1020, 1022).Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint.The plaintiff’s remaining contention need not be reached in light of our determination.LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Austin, J.P.; Roman, Sgroi and Connolly, JJ.PEOPLE, etc., ex rel. Kristen A. Clodfelter, on behalf of Clyde Thompson, pet, v. Vera Fludd, etc., res — Kristen A. Clodfelter, Garden City, NY, petitioner pro se.Madeline Singas, District Attorney, Mineola, NY (Matthew Perry of counsel), for respondent.Writ of habeas corpus in the nature of an application for bail reduction upon Nassau County Indictment No. 02003N/17 to release Clyde Thompson on his own recognizance or to set reasonable bail.ADJUDGED that the writ is dismissed, without costs or disbursements.The determination of the Supreme Court, Nassau County, did not violate “constitutional or statutory standards” (People ex rel. Klein v. Kruger, 25 NY2d 497, 499; see People ex rel. Rosenthal v. Wolfson, 48 NY2d 230).AUSTIN, J.P., ROMAN, SGROI and CONNOLLY, JJ., concur.Motion List released on:February 7, 2018By Rivera, J.P.; Miller, Nelson and Iannacci, JJ.Judy Zhou, etc. res, v. Tuxedo Ridge, LLC ap — Motion by the respondents to dismiss an appeal from an order of the Supreme Court, Queens County, entered February 15, 2017, on the ground that the final judgment allegedly has been signed, or, in the alternative, to enlarge the time to serve and file a brief.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of the motion which is to enlarge the respondents’ time to serve and file a brief is granted, the respondents’ time to serve and file a brief is enlarged until March 9, 2018, and the respondents’ brief shall be served and filed on or before that date; and it is further,ORDERED that the motion is otherwise denied.RIVERA, J.P., MILLER, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Justin L. (Anonymous), res — New York State Office of Mental Health, nonparty-ap — Appeal by New York State Office of Mental Health from an order of the Family Court, Kings County, dated November 3, 2017.On the Court’s own motion, it isORDERED that the parties are directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal in the above-entitled proceeding on the ground that the nonparty-appellant is not aggrieved by the order dated November 3, 2017 (see CPLR 5511), by each filing an affirmation or affidavit on that issue in the office of the Clerk of this Court and serving one copy of the same on each other on or before March 1, 2018; and it is further,ORDERED that the Clerk of this Court, or her designee, is directed to serve a copy of this order to show cause upon the parties to the appeal by regular mail.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Mastro, J.P.; Dillon, Leventhal, Chambers and Iannacci, JJ.MATTER of Jessica Theresa Falco, an attorney and counselor-at-law. (Attorney Registration No. 5188842) — Application by Jessica Theresa Falco, who was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 5, 2014, to change her name on the roll of attorneys and counselors-at-law to Jessica Theresa Peterson.Upon the papers filed in support of the application, it isORDERED that the application is granted; and it is further,ORDERED that the Clerk of the Court shall change the applicant’s name on the roll of attorneys and counselors-at-law from Jessica Theresa Falco to Jessica Theresa Peterson, effective immediately.MASTRO, J.P., DILLON, LEVENTHAL, CHAMBERS and IANNACCI, JJ., concur.By Mastro, J.P.; Dillon, Leventhal, Chambers and Iannacci, JJ.MATTER of Lauren Clair Hall, an attorney and counselor-at-law. (Attorney Registration No. 5303722) — Application by Lauren Clair Hall, who was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on April 29, 2015, to change her name on the roll of attorneys and counselors-at-law to Lauren Hall Walsh.Upon the papers filed in support of the application, it isORDERED that the application is granted; and it is further,ORDERED that the Clerk of the Court shall change the applicant’s name on the roll of attorneys and counselors-at-law from Lauren Clair Hall to Lauren Hall Walsh, effective immediately.MASTRO, J.P., DILLON, LEVENTHAL, CHAMBERS and IANNACCI, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Milena Graziella Pisano, an attorney and counselor-at-law. (Attorney Registration No. 5138540) — Application by Milena Graziella Pisano, who was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on June 12, 2013, to change her name on the roll of attorneys and counselors-at-law to Milena Pisano-McNally.Upon the papers filed in support of the application, it isORDERED that the application is granted; and it is further,ORDERED that the Clerk of the Court shall change the applicant’s name on the roll of attorneys and counselors-at-law from Milena Graziella Pisano to Milena Pisano-McNally, effective immediately.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Meredith Allyn Coppola, an attorney and counselor-at-law. (Attorney Registration No. 5112784) — Application by Meredith Allyn Coppola, who was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on April 10, 2013, to change her name on the roll of attorneys and counselors-at-law to Meredith Coppola Rosenthal.Upon the papers filed in support of the application, it isORDERED that the application is granted; and it is further,ORDERED that the Clerk of the Court shall change the applicant’s name on the roll of attorneys and counselors-at-law from Meredith Allyn Coppola to Meredith Coppola Rosenthal, effective immediately.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Rebecca Ann Monck, an attorney and counselor-at-law. (Attorney Registration No. 3017118) — Application by Rebecca Ann Monck, who was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 9, 2000, to change her name on the roll of attorneys and counselors-at-law to Rebecca Monck Ricigliano.Upon the papers filed in support of the application, it isORDERED that the application is granted; and it is further,ORDERED that the Clerk of the Court shall change the applicant’s name on the roll of attorneys and counselors-at-law from Rebecca Ann Monck to Rebecca Monck Ricigliano, effective immediately.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.Citimortgage, Inc., res, v. Daisy Charles def, Jacqueline Charles, ap — Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect an appeal from an order of the Supreme Court, Kings County, dated February 8, 2017.Upon the papers filed in support of the application and the papers filed in opposition thereto, it isORDERED that the application is granted, the appellant’s time to perfect the appeal is enlarged until February 21, 2018, the record or appendix on the appeal and the appellant’s brief shall be served and filed on or before that date.John Lindner, res, v. Cesar Guzman, et al., ap — Application by the respondent pursuant to 22 NYCRR 670.8(d)(2) for an enlargement of time until March 9, 2018, to serve and file a brief on an appeal from an order of the Supreme Court, Suffolk County, dated August 1, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted to the extent that the respondent’s time to serve and file a brief is enlarged until February 21, 2018, the respondent’s brief shall be served and filed on or before that date, and the application is otherwise denied.Rose Messeroux, etc., ap, v. Maimonides Medical Center res — Application by the appellants pursuant to 22 NYCRR 670.8(d)(2) for a 30-day enlargement of time to serve and file a reply brief on an appeal from an order of the Supreme Court, Kings County, dated January 31, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted to the extent that the appellants’ time to serve and file a reply brief is enlarged until February 22, 2018, the reply brief shall be served and filed on or before that date, and the application is otherwise denied.MATTER of Stephen Schoonmaker, pet, v. New York State Department of Motor Vehicles, res — Application by the petitioner pursuant to 22 NYCRR 670.8(d)(2) for a 45-day enlargement of time to serve and file a reply brief in a proceeding pursuant to CPLR article 78, which was transferred to this Court by order of the Supreme Court, Dutchess County, dated October 19, 2015.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted to the extent that the petitioner’s time to serve and file a reply brief is enlarged until February 23, 2018, the reply brief shall be served and filed on or before that date, and the application is otherwise denied.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin. JJ.YSG Homes, LLC, ap, v. Salvadore E. Rossilo, respondent (and a third-party action). — Appeal by YSG Homes, LLC, from a decision of the Supreme Court, Kings County, dated May 23, 2017.On the Court’s own motion, it isORDERED that so much of an order on application of this Court, entitled “[i]n the Matter of Applications for Extensions of Time” dated January 23, 2018, as extended the appellant’s time to perfect the appeal is recalled and vacated; and it is further,ORDERED that the appeal is dismissed, without costs or disbursements, on the ground that no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Co., 100 AD2d 509).SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Balkin, J.P.; Chambers, Duffy and Lasalle, JJ.MATTER of Marcia v. (Anonymous), ap, v. Julia A. P. v. (Anonymous) res — Appeal by Marcia V. from an order of the Family Court, Queens County, dated December 19, 2017.On the Court’s own motion, it isORDERED that the appeal is dismissed, without costs or disbursements, as no appeal lies as of right from a nondispositional order in a proceeding pursuant to Family Court Act article 6, part 4 (see Family Ct Act §1112), and leave to appeal has not been granted.BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.By Balkin, J.P.; Chambers, Duffy and Lasalle, JJ.MATTER of Maureen Stewart, res, v. Owen Feavon, ap — Appeal by Owen Feavon from an order of the Family Court, Kings County, dated June 19, 2017. By decision and order on motion of this Court dated December 6, 2017, the appellant was directed to file in the office of the Clerk of this Court an affidavit or affirmation that the transcript has been received, and indicating the date that it was received, or, if the transcript has not been received, an affidavit or affirmation stating that it has been ordered and paid for, the date thereof, and the date by which the transcript is expected. The appellant has failed to file the affidavit or affirmation.Now, on the Court’s own motion, it isORDERED that the appeal is dismissed, without costs or disbursements, for failure to comply with the decision and order on motion of this Court dated December 6, 2017 (see 22 NYCRR 670.4[a][2],[4]).BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.By Balkin, J.P.; Chambers, Duffy and Lasalle, JJ.Shu Jun Zhu, res, v. Bin Pan, ap — Appeal by Bin Pan from an order of the Supreme Court, Queens County (IDV Part), dated April 12, 2017. By decision and order on motion of this Court dated December 21, 2017, the appellant’s time to perfect the appeal was enlarged until January 22, 2018. The appellant has failed to perfect the appeal.Now, on the Court’s own motion, it isORDERED that the appeal is dismissed, without costs or disbursements, for failure to timely perfect in accordance with the rules (see 22 NYCRR 670.4[a][2],[4]) and prior order of the Court.BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Josephine Rodriguez, ap, v. ACS-Kings, res — V-22353-17, V-22354-17) — Appeal by Josephine Rodriguez from an order of the Family Court, Kings County, dated November 28, 2017. Pursuant to Family Court Act §§1118 and 1120, and upon the certification of Alan Fried, Esq., dated February 1, 2018, it isORDERED that the appellant is granted leave to proceed as a poor person on the appeal, and the following named attorney is assigned as counsel to prosecute the appeal:Rhea G. Friedman, Esq.P.O. Box 727Murray Hill StationNew York, NY 10156917-513-0928and it is further,ORDERED that assigned counsel shall promptly attempt to contact the appellant at the address provided by this Court, and on or before February 21, 2018, shall notify the Case Manager assigned to the appeal, in writing, that he has done so and that either(1) the appellant is interested in prosecuting the appeal, or(2) the appellant is not interested in prosecuting the appeal, or that she has been unable to contact the appellant, and wishes to be relieved of the assignment; and it is further,ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the briefs of the appellant, the respondent, and the attorney for the child, if any. The parties are directed to file nine copies of their respective briefs and to serve one copy on each other (22 NYCRR 670.9[d][1][ii]; Family Ct Act §1116); and it is further,ORDERED that the stenographer(s) and/or the transcription service(s) is/are required promptly to make and certify two transcripts of the proceedings, if any, except for those minutes previously transcribed and certified (22 NYCRR 671.9); in the case of stenographers, both transcripts shall be filed with the clerk of the Family Court, and the clerk of the Family Court shall furnish one of such certified transcripts to the appellant’s assigned counsel, without charge; in the case of transcription services, one transcript shall be filed with the clerk of the Family Court and one transcript shall be delivered to the appellant’s assigned counsel. Assigned counsel is directed to provide copies of said transcripts to all of the other parties to the appeal, including the attorney for the child, if any, when counsel serves the appellant’s brief upon those parties; and it is further,ORDERED that the assigned counsel shall prosecute the appeal expeditiously in accordance with any or orders issued pursuant to §670.4(a) of the rules of this Court (22 NYCRR 670.4[a]); and it is further,ORDERED that upon a determination that the appellant is interested in proceeding with the appeal, the assigned counsel is directed to serve a copy of this order upon the clerk of the court from which the appeal is taken.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.MATTER of City of Yonkers, res, v. Yonkers Fire Fighters, Local 628 ap — Application by the appellants pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect an appeal from an order of the Supreme Court, Westchester County, dated August 16, 2017.Upon the papers filed in support of the application and the papers filed in relation thereto, it isORDERED that the application is granted, the appellants’ time to perfect the appeal is enlarged until April 27, 2018, the record or appendix on the appeal and the appellants’ brief shall be served and filed on or before that date.Shirley Pinkney, etc., res, v. Paris Fields ap — Application by the respondent pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief on an appeal from a judgment of the Supreme Court, Kings County, dated January 12, 2016.Upon the papers filed in support of the application and the papers filed in opposition thereto, it isORDERED that the application is granted, the respondent’s time to serve and file a brief is enlarged until February 21, 2018, the respondent’s brief shall be served and filed on or before that date.Christine McDonald, res, v. Pllumb Bajraktari, ap — Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) for an enlargement of time until April 6, 2018, to perfect an appeal from an order of the Supreme Court, Suffolk County, dated March 22, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted to the extent that the appellant’s time to perfect the appeal is enlarged until March 8, 2018, the record or appendix on the appeal and the appellant’s brief shall be served and filed on or before that date, and the application is otherwise denied.Lourdes Marie Dorce, ap, v. Family Dollar Stores of New York, Inc. res — Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect an appeal from an order of the Supreme Court, Queens County, dated April 7, 2017.Upon the papers filed in support of the application and the papers filed in opposition thereto, it isORDERED that the application is granted, the appellant’s time to perfect the appeal is enlarged until February 28, 2018, the record or appendix on the appeal and the appellant’s brief shall be served and filed on or before that date.By Roman, J.P.; Lasalle, Connolly and Christopher, JJ.PEOPLE, etc., res, v. Mark Polite, ap — Motion by the appellant pro se for leave to file exhibits to his supplemental brief on an appeal from a resentence of the Supreme Court, Kings County, imposed November 2, 2011.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.John Dash, ap, v. Laura Tiongson, res — Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) for a 90-day enlargement of time to perfect an appeal from an order of the Supreme Court, Nassau County, dated April 18, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted to the extent that the appellant’s time to perfect the appeal is enlarged until March 27, 2018, the record or appendix on the appeal and the appellant’s brief shall be served and filed on or before that date, and the application is otherwise denied.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.MATTER of Bedeau Realty Corp., pet, v. New York State Division of Housing and Community Renewal, res — Motion by Bedeau Realty Corp. for leave to appeal to this Court from a judgment of the Supreme Court, Kings County, dated November 28, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied as unnecessary as the judgment is appealable as of right (see CPLR 5701); and it is further,ORDERED that Bedeau Realty Corp. may serve and file a notice of appeal from the judgment in accordance with CPLR 5514(a).RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.Global Health Services, LLC, res, v. Sports Medicine and Rehabilitation, P.C., et al., ap — Application by the appellants pursuant to 22 NYCRR 670.8(d)(2) for a 90-day enlargement of time to perfect an appeal from an order of the Supreme Court, Nassau County, dated May 11, 2017.Upon the papers filed in support of the application and the papers filed in opposition thereto, it isORDERED that the application is granted to the extent that the appellants’ time to perfect the appeal is enlarged until February 20, 2018, the record or appendix on the appeal and the appellants’ brief shall be served and filed on or before that date, and the application is otherwise denied.A.L., etc. ap, v. Able Healthcare Services, Inc. res, et al., def — Application by the appellants pursuant to 22 NYCRR 670.8(d)(2) for a 90-day enlargement of time to perfect an appeal from an order of the Supreme Court, Queens County, dated June 20, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted to the extent that the appellants’ time to perfect the appeal is enlarged until April 2, 2018, the record or appendix on the appeal and the appellants’ brief shall be served and filed on or before that date, and the application is otherwise denied.A.L., etc. ap, v. Able Healthcare Services, Inc. respondents def — Application by the appellants pursuant to 22 NYCRR 670.8(d)(2) for a 90-day enlargement of time to perfect an appeal from an order of the Supreme Court, Queens County, dated June 20, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted to the extent that the appellants’ time to perfect the appeal is enlarged until April 2, 2018, the record or appendix on the appeal and the appellants’ brief shall be served and filed on or before that date, and the application is otherwise denied.Ronald A. Winter, res, v. Nancy v. Winter, ap — Application by the respondent pursuant to 22 NYCRR 670.8(d)(2) for a 6-month enlargement of time to serve and file a brief on an appeal from an order of the Supreme Court, Suffolk County, dated May 25, 2017.Upon the papers filed in support of the application and the papers filed in opposition and in relation thereto, it isORDERED that the application is granted to the extent that the respondent’s time to serve and file a brief is enlarged until March 19, 2018, the respondent’s brief shall be served and filed on or before that date, and the application is otherwise denied.Matter of Lena Bodin ap, v. Planning Board of the Town of Ramapo, et al., respondents-respondents res — Application by the appellants pursuant to 22 NYCRR 670.8(d)(2) for a 90-day enlargement of time to perfect an appeal from an order of the Supreme Court, Rockland County, dated June 30, 2016.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted to the extent that the appellants’ time to perfect the appeal is enlarged until April 5, 2018, the record or appendix on the appeal and the appellants’ brief shall be served and filed on or before that date, and the application is otherwise denied.Matter of Hillcrest Fire Company No. 1, et al., ap, v. Town of Ramapo res — Application by the appellants pursuant to 22 NYCRR 670.8(d)(2) for a 90-day enlargement of time to perfect an appeal from an order of the Supreme Court, Rockland County, dated June 29, 2016.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted to the extent that the appellants’ time to perfect the appeal is enlarged until April 5, 2018, the record or appendix on the appeal and the appellants’ brief shall be served and filed on or before that date, and the application is otherwise denied.By Rivera, J.P.; Miller, Hinds-Radix and Maltese, JJ.Bank of America, National Association, res, v. Susan Schwartz ap — Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Rockland County, dated August 23, 2017, on the ground that no appeal lies from an order denying reargument.Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it isORDERED that the motion is granted and the appeal is dismissed, without costs or disbursements.RIVERA, J.P., MILLER, HINDS-RADIX and MALTESE, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.255 Butler Associates, LLC, res, v. 255 Butler, LLC, ap — Motion by the respondent to strike the appellant’s brief on an appeal from an order of the Supreme Court, Kings County, dated September 14, 2017, on the ground that it refers to matter dehors the record and improperly raises issues for the first time on appeal, to vacate a stay granted by decision and order on motion of this Court dated November 24, 2017, and to enlarge the time to serve and file a brief.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of the motion which is to strike the appellant’s brief is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,ORDERED that the branch of the motion which is to vacate a stay granted by decision and order on motion of this Court dated November 24, 2017, is denied; and it is further,ORDERED that the branch of the motion which is to enlarge the respondent’s time to serve and file a brief is granted, the respondent’s time to serve and file a brief is enlarged until March 8, 2018, and the respondent’s brief shall be served and filed on or before that date.DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Karnail S. (Anonymous), pet-res, v. Malkit K. (Anonymous), et al., respondents-res, Harmanpreet S. (Anonymous), nonparty-ap — Appeal by Harmanpreet S. from an order of the Family Court, Queens County, dated August 21, 2017. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the appellant’s time to perfect the appeal by causing the original papers constituting the record on the appeal to be filed in the office of the Clerk of this Court (see 22 NYCRR 670.9[d][2]) and by serving and filing the appellant’s brief on the appeal is enlarged until March 6, 2018; and it is further,ORDERED that no further enlargement of time shall be granted.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Dillon, J.P.; Leventhal, Hinds-Radix and Lasalle, JJ.Mi King Chew, ap, v. La Chea, res — Motion by the appellant on an appeal from an order of the Supreme Court, Kings County, dated October 7, 2016, for leave to reargue the appellant’s opposition to the respondent’s motion to strike stated pages of the record and the appellant’s brief, which was determined by decision and order on motion of this Court dated November 15, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied; and it is further,ORDERED that on the Court’s own motion, the appellant’s time to comply with the decision and order on motion of this Court dated November 15, 2017, is extended until March 9, 2018; and it is further,ORDERED that on the Court’s own motion, the respondent’s time to serve and file a brief is enlarged until April 9, 2018, and the respondent’s brief, if any, shall be served and filed on or before that date.DILLON, J.P., LEVENTHAL, HINDS-RADIX and LASALLE, JJ., concur.By Second Judicial Department, Scheinkman, P.J.; Rivera, Dillon, Balkin, and Chambers, JJ.MATTER of Kaiden M. L. (Anonymous). Westchester County Department of Social Services, petitioner-res, KDaya R. (Anonymous), res-res — Appeal by K’Daya R. from an order of the Family Court, Westchester County, dated January 10, 2018. Pursuant to Family Court Act §§1118 and 1120, and upon the certification of David M. Rosoff, Esq., dated January 31, 2018, it isORDERED that the appellant is granted leave to proceed as a poor person on the appeal and the following named attorney is assigned as counsel to prosecute the appeal:Carton & Rosoff, P.C.150 Grand Street, Suite 305White Plains, NY 10601ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the briefs of the appellant, the respondent, and the attorney for the child, if any. The parties are directed to file nine copies of their respective briefs and to serve one copy on each other (22 NYCRR 670.9[d][1][ii]; Family Ct Act §1116); and it is further,ORDERED that the stenographer(s) and/or the transcription service(s) is/are required promptly to make and certify two transcripts of the proceedings, if any, except for those minutes previously transcribed and certified (22 NYCRR 671.9); in the case of stenographers, both transcripts shall be filed with the clerk of the Family Court, and the clerk of the Family Court shall furnish one of such certified transcripts to the appellant’s assigned counsel, without charge; in the case of transcription services, one transcript shall be filed with the clerk of the Family Court and one transcript shall be delivered to the assigned counsel. Assigned counsel is directed to provide copies of said transcripts to all of the other parties to the appeal, including the attorney for the child, if any, when counsel serves the appellant’s brief upon those parties; and it is further,ORDERED that assigned counsel shall serve a copy of this order upon the clerk of the court from which the appeal is taken; and it is further,ORDERED that the appeal in the above-entitled proceeding shall be perfected either within 60 days after the receipt by the assigned counsel of the transcripts of the minutes of the proceedings in the Family Court, and the assigned counsel shall notify this Court by letter of the date the transcripts are received, or, if there are no minutes of proceedings to be transcribed, within 60 days of the date of this order; and it is further,ORDERED that within 30 days after the date of this order, the assigned counsel shall file in the office of the Clerk of this Court one of the following:(1) an affidavit or affirmation stating that there are no minutes of any Family Court proceeding to be transcribed for the appeal; or(2) if there are such minutes, an affidavit or affirmation stating that the transcripts have been received, and indicating the date received; or(3) if the transcripts have not been received, an affidavit or affirmation stating that this order has been served upon the clerk of the court from which the appeal is taken, the date thereof, and the date by which the transcripts are expected; or(4) an affidavit or an affirmation withdrawing the appeal; and it is further,ORDERED that if none of the above actions described in (1), (2), (3), or (4) above, has been taken within 30 days of the date of this , the Clerk of this Court shall issue an order to all parties to the appeal to show cause why the appeal should or should not be dismissed.SCHEINKMAN, P.J., RIVERA, DILLON, BALKIN and CHAMBERS, JJ., concur.MATTER of Farrah Lupo, res, v. Brian Rainsford, ap — V-13970-15/16E, V-13970-15/16F) — Appeal by Brian Rainsford from an order of the Family Court, Suffolk County, dated July 13, 2017. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the appellant’s time to perfect the appeal by causing the original papers constituting the record on the appeal to be filed in the office of the Clerk of this Court (see 22 NYCRR 670.9[d][2]) and by serving and filing the appellant’s brief on the appeal is enlarged until March 7, 2018.Aliaksandra Listouskaya, res, v. Bhavana Pothuri ap — Application by the appellants to withdraw an appeal from an order of the Supreme Court, Kings County, dated October 10, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.PEOPLE, etc., res, v. Tyreze S. Clemmons , ap — Motion by assigned counsel to be relieved of the assignment to prosecute an appeal from a judgment of the County Court, Dutchess County, rendered May 2, 2017, and for the assignment of new counsel. The appellant’s motion for leave to prosecute the appeal as a poor person and for assignment of counsel was granted on October 6, 2017, and the following named attorney was assigned as counsel to prosecute the appeal:Thomas N. N. Angell, Esq.Public Defender22 Market StreetPoughkeepsie, NY 12601Upon the papers filed in support of the motion and the papers filed in relation thereto, it isORDERED that the motion is granted, and the former assigned counsel is directed to turn over all papers in the action to new counsel herein assigned; and it is further,ORDERED that pursuant to County Law §722 the following named attorney is assigned as counsel to prosecute the appeal:Steven A. Feldman, Esq.626 RXR PlazaWest Tower, 6th FloorUniondale, NY 11556and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the defendant’s sentencing, including the recommendation sheet and any prior reports on the defendant which are incorporated or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,ORDERED that the appellant’s time to perfect the appeal is enlarged; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court’s rules (see 22 NYCRR 670.1, et seq.) and written directions; and it is further,ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.Michael Steward, res-ap, v. Mount Sinai Church of God in Christ, appellant-res — Application by the appellant-respondent to withdraw an appeal from an order of the Supreme Court, Kings County, dated June 14, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.PEOPLE, etc., res, v. Felix Santiago, ap — (S.C.I. No. 17D12) — Appeal from a judgment of the Supreme Court, Queens County, rendered September 8, 2016.Upon the stipulation of the appellant and the attorneys for the respective parties to the appeal dated February 2, 2018, it isORDERED that the appeal is marked withdrawn.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.Martin Watters ap, v. Michael F. Kerin, def, Elizabeth Rocco res — Application to withdraw an appeal from an order of the Supreme Court, Westchester County, dated June 16, 2017.Upon the stipulation of the attorneys for the respective parties to the appeal dated January 8, 2018, it isORDERED that the application is granted and the appeal is deemed withdrawn, without costs or disbursements.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.First Choice Contracting Corp., ap, Frank Argenziano res — Application by the appellant to withdraw an appeal from an order of the Supreme Court, Nassau County, dated December 11, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.By Rivera, J.P.; Chambers, Miller and Barros, JJ.Marcelle B. Bichotte, plf-res, v. Ricardo O. Dunner, appellant; New York City Human Resources Administration, nonparty-res — Appeals from five orders of the Supreme Court, Kings County, dated December 16, 2014, April 27, 2015, August 17, 2015 (two orders), and August 21, 2015, respectively, which were dismissed by a decision and order on motion of this Court dated August 22, 2017. By order to show cause dated December 12, 2017, the parties were directed to show cause why an order should or should not be made and entered imposing sanctions and/or costs, if any, including appellate counsel fees, against the appellant, Ricardo O. Dunner, pursuant to 22 NYCRR 130-1.1(c) as this Court may deem appropriate.Now, upon the papers filed in support of the order to show cause and the papers filed in response thereto, it isORDERED that the motion is denied.RIVERA, J.P., CHAMBERS, MILLER and BARROS, JJ., concur.By Balkin, J.P.; Chambers, Duffy and Lasalle, JJ.James Cush, plf, v. Christine Cush, def — Motion by James Cush for leave to appeal to this Court from an order to show cause of the Supreme Court, Suffolk County, dated December 20, 2017, and to stay enforcement of certain temporary restraining orders contained in the order to show cause, and to stay all proceedings in the above-entitled action, pending hearing and determination of the appeal from the order to show cause.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of the motion which is for leave to appeal is denied; and it is further,ORDERED that the motion is otherwise denied as academic.BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.By Mastro, J.P.; Dillon, Maltese and Iannacci, JJ.Deutsche Bank National Trust Company, etc., res, v. Thomas R. Quinn appellants def — Motion by the appellants on an appeal from an order of the Supreme Court, Nassau County, entered March 1, 2017, to stay enforcement of a judgment of the same court dated November 3, 2017, pending hearing and determination of the appeal from the judgment, and, in effect, to deem the notice of appeal from the order to be a premature notice of appeal from the judgment to the extent that the order is brought up for review on the appeal from the judgment.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of the motion which is to stay enforcement of the judgment is denied; and it is further,ORDERED that the branch of the motion which is, in effect, to deem the notice of appeal from the order to be a premature notice of appeal from the judgment to the extent that the order is brought up for review on the appeal from the judgment is granted, the record and the appellant’s brief filed in connection with the appeal from the order are deemed to be filed in connection with the appeal from the judgment, and on or before February 28, 2018, the appellants shall serve and file a supplemental record containing the judgment; and it is further,ORDERED that on the Court’s own motion, the respondent’s time to serve and file a brief is enlarged until April 4, 2018, and the respondent’s brief shall be served and filed on or before that date.MASTRO, J.P., DILLON, MALTESE and IANNACCI, JJ., concur.Wells Fargo Bank, National Association, res, v. Joseph T. Mohen, ap, et al., def — Application by the appellant to withdraw an appeal from an order of the Supreme Court, Nassau County, dated February 7, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.HSBC Bank USA, National Association, res, v. Barbara Saint Louis, ap, et al., def — Application by the appellant to withdraw an appeal from an order of the Supreme Court, Nassau County, dated August 24, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Bertha Y. Fine, deceased. Robert Roth, petitioner-appellant-res, David Dacks objectants-respondents- ap — (File No. 368295/12) — Application to withdraw an appeal and cross appeal from an order of the Surrogate’s Court, Nassau County, dated September 10, 2015.Upon the stipulation of the attorneys for the respective parties to the appeal and cross appeal dated February 1, 2018, it isORDERED that the application is granted and the appeal and cross appeal are deemed withdrawn, without costs or disbursements.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.Jae Kun Kim, res, v. Danki Dunkens ap — Application by the appellants to withdraw an appeal from an order of the Supreme Court, Kings County, dated March 2, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.By Scheinkman, P.J.; Duffy, Connolly and Christopher, JJ.Andrew D. Lavine res, v. Orvis Company, Inc. ap — Application to withdraw an appeal from an order of the Supreme Court, Westchester County, dated March 17, 2016.Upon the stipulation of the attorneys for the respective parties to the appeal dated January 24, 2018, it isORDERED that the application is granted and the appeal is deemed withdrawn, without costs or disbursements.SCHEINKMAN, P.J., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.Shameem Begum, res, v. Roman Catholic Church of St. Sylvester, ap — Application by the appellant for leave to withdraw an appeal from an order of the Supreme Court, Kings County, dated May 10, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is deemed withdrawn, without costs or disbursements.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Austin, J.P.; Roman, Sgroi and Connolly, JJ.Shaquan Orta-Smith, ap, v. Mark Ellis, res — Application to withdraw an appeal from an order of the Supreme Court, Kings County, dated July 28, 2017.Upon the stipulation of the attorneys for the respective parties to the appeal dated February 2, 2018, it isORDERED that the application is granted and the appeal is deemed withdrawn, without costs or disbursements.AUSTIN, J.P., ROMAN, SGROI and CONNOLLY, JJ., concur.Yangchen Dolkar res, v. Princess Tours, Inc. def, Pandora Travel, Inc., ap — Application by the appellant to withdraw an appeal from an order of the Supreme Court, Queens County, dated March 31, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.Stacy Van Dien res, v. Westchester County Healthcare Corporation, et al., def, Jay Feder ap — Application by the appellants to withdraw an appeal from an order of the Supreme Court, Westchester County, dated June 30, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal is marked withdrawn.By Lasalle, J.PEOPLE, etc., plf, v. Antwan Thompson, def — Application by the defendant pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from an order of the Supreme Court, Kings County, dated February 28, 2017, which has been referred to me for determination.Upon the papers filed in support of the application and the papers filed in opposition thereto, it isORDERED that the application is denied.By Lasalle, J.PEOPLE, etc., plf, v. Carl Snyder, def — Application by the defendant pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from an order of the Supreme Court, Kings County, dated October 6, 2017, which has been referred to me for determination.Upon the papers filed in support of the application and the papers filed in opposition thereto, it isORDERED that the application is denied.By Sgroi, J.PEOPLE, etc., plf, v. Jeffrey Gibbs, def — Application by the defendant pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from an order of the Supreme Court, Kings County, dated November 1, 2016, which has been referred to me for determination.Upon the papers filed in support of the application and the papers filed in opposition thereto, it isORDERED that the application is denied.By Sgroi, J.PEOPLE, etc., plf, v. Mark Baugh, def — Application by the defendant pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from an order of the Supreme Court, Queens County, dated June 5, 2017, which has been referred to me for determination.Upon the papers filed in support of the application and the papers filed in opposition thereto, it isORDERED that the application is denied.By Austin, J.P.; Roman, Sgroi and Connolly, JJ.Donje Jones, res, v. City of New York appellants def — Motion by the appellants to stay the trial in the above-entitled action pending hearing and determination of an appeal from an order of the Supreme Court, Kings County, dated December 14, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.AUSTIN, J.P., ROMAN, SGROI and CONNOLLY, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.Wilmington Trust Company, etc., ap, v. Edward Gewirtz, etc., respondent def — On the Court’s own motion, it isORDERED that the decision and order on motion of this Court dated February 5, 2018, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect an appeal from a decision of the Supreme Court, Kings County, dated June 9, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that on the Court’s own motion, the appeal is dismissed, without costs or disbursements, on the ground that no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Co., 100 AD2d 509); and it is further,ORDERED that the application is denied as academic.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.MATTER of Applications for Extensions of Time — Parties in the following causes have filed applications pursuant to 22 NYCRR 670.8(d)(2) to extend the time to perfect or to serve and file a brief.Upon the papers filed in support of the applications, it isORDERED that the applications are granted and the following parties in the following causes are granted the specified extensions of time:Title, Docket, NumberApplicant, Name(s), Extended, DeadlineAlvarez v. Century 21 Department Stores, LLC, 2017-09893, Roberto Alvarez, May 7, 2018Cruz v. Roman Catholic Church of St. Gerard Magella in Borough of Queens in City of New York, 2017-07735, Roman Catholic Church of St. Gerard Magella in Borough of Queens in City of New York New York School Construction Authority City of New York Board of Education City of New York, March 23, 2018Federal National Mortgage Association v. Kuang Chuang, 2017-06877, Federal National Mortgage Association, March 23, 2018Golec v. Dock Street Construction, LLC, 2017-12508, Krzysztof Golec Irena Golec, April 16, 2018Hinton v. Fifer, 2017-09494, Clifford Hinton, April 10, 2018Matter of City of New York v. Quadrozzi, 2016-04236 +1, John Quadrozzi, Jr., February 23, 2018Matter of Jones v. County of Suffolk, 2017-09534, James Jones; Jerome Liggon; Kelly Miller; Kayne Mitchell; Suzanne Morris-Sherer; Peggy Morris; Dorothea Nash; Joe Patterson; Steven Rubio; Jacqueline Thomas-Moore; Paul Wendel; Ana Brown; Marvin Collin; Mona Collin; Constrance Batts; Kerri Ferrante; Stephen Morris; Marley Tardd; Makayla Lewis, April 13, 2018Matter of Patterson v. County of Suffolk, 2017-09539, Joe Patterson; Stephanie Collins; John Frost; Katie Frost; Sharon Frost; George Gordon, Jr.; Michael Green; Christine Kibel; Timothy Lynch; Chester Morris; Henry Strain; Annie Strain, April 16, 2018May v. May, 2017-09476, Jonathan May, April 9, 2018Melrose Credit Union v. Matatov, 2017-09191, Melrose Credit Union , April 3, 2018Paragon v. Paragon, 2016-13084, Hideko Paragon, February 26, 2018Prignoli v. Shamis , 2017-09595, Robert Prignoli, April 9, 2018Shahid v. Dechert, LLP, 2017-10775, Dechert, LLP, March 14, 2018Valentina v. Valentina, 2017-07388, Sophia Valentina, April 5, 2018Wells Fargo Bank, N.A. v. Baymack, 2017-05408, Brandon Baymack, February 20, 2018Wells Fargo Bank, NA v. Galloway, 2017-05392 +1, Wells Fargo Bank, NA, March 15, 2018By Lasalle, J.PEOPLE, etc., plf, v. Felix M. Lara, def — Application by the defendant pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from an order of the Supreme Court, Queens County, dated October 27, 2017, which has been referred to me for determination.Upon the papers filed in support of the application and the papers filed in opposition thereto, it isORDERED that the application is denied.
