By: Friedman, J.P., Richter, Kahn, Oing, Moulton, JJ.Sotheby’s, Inc., plf-app-res, v. Christophe Mao, et al., defs-res-apps — Cross appeals from an order of the Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about March 1, 2017, which granted defendants’ motion for summary judgment dismissing the amended complaint, and denied defendants’ motion for summary judgment on the counterclaim.Stroock & Stroock & Lavan LLP, New York (Charles G. Moerdler, Ernst H. Rosenberger, Julie G. Matos and Kayley R. McGrath of counsel), and Cahill Cossu Noh & Robinson LLP, New York (John R. Cahill and Paul S. Cossu of counsel), for appellant-respondent.Thomas, M. Lahiff, New York, for respondents-appellants.FRIEDMAN, J.P.The primary issue on this appeal is whether a party to a contract may, by orally waiving the other party’s accrued obligation to render a performance when due under the contract (but not the performance itself), extend its time under the statute of limitations in which to sue for breach of contract without complying with General Obligations Law §17-103. We answer this question in the negative.This action arises out of a revolving credit agreement that provided for the financing by plaintiff Sotheby’s, Inc. of the purchase by defendant Chambers Fine Art LLC (CFA) of contemporary Chinese fine art for resale. Under the agreement (entitled “Secured Revolving Loan and Sale Agreement”), dated June 29, 2006 (the 2006 agreement), CFA was permitted to draw down on the loan in increments of not more than $500,000 (up to a maximum of $5 million) from time to time as it located art to purchase. Interest was to accrue at fluctuating rates based on the prime rate announced by a designated bank in New York (the prime rate plus one percent until the entire principal amount of the loan became due; the prime rate plus four percent thereafter). The agreement contains no set repayment schedule but requires CFA, “[w]ithin two business days after [it] collect[s] and receive[s] the sale price of any item of the Property [i.e., art purchased with Sotheby's funds]… , [to] remit the gross sale proceeds… to a joint [bank] account,” with the remitted funds to be applied as specified in the agreement. CFA’s principal, defendant Christophe Mao, executed a guarantee of all of CFA’s obligations under the 2006 agreement.The 2006 agreement provides that all of CFA’s indebtedness becomes due and payable on the earlier of a specified maturity date (June 29, 2009) or “the occurrence of an Event of Default (as defined below).” The agreement further provides that, upon the occurrence of such an “Event of Default,”“then, the outstanding principal amount of the Loan together with accrued interest thereon and all other outstanding indebtedness and obligations of [CFA] to Sotheby’s shall become immediately due and payable, without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or notice of any other kind, all of which are hereby waived by [CFA]” (emphasis added).The record establishes, and it is undisputed, that an “Event of Default” within the meaning of the 2006 agreement occurred two business days after December 28, 2007 (if not before), thereby triggering CFA’s obligation to repay the entire outstanding balance of the loan on that date. Specifically, on February 2, 2007, CFA purchased, with $250,000 drawn from Sotheby’s, a painting by the prominent artist Liu Xiaodong entitled “Swimming Pool on the Top of the Building” (SPTB). On December 20, 2007, CFA sold SPTB for $350,000, and the sale settled on December 28, 2007. The parties agree that CFA did not remit the proceeds of the sale of SPTB to the joint bank account specified in the 2006 agreement within two business days after receiving the funds or at any time thereafter. The 2006 agreement defines the term “Event of Default” to include, inter alia, a “default in the payment of any principal of or interest on the Loan or any other amount payable by [CFA] to Sotheby’s hereunder as and when the same shall become due and payable.” The term “Event of Default” is defined also to include a “breach [by CFA], or fail[ure] [by CFA] to perform when due, any agreement, covenant or obligation to be performed by [CFA] pursuant hereto.” Accordingly, the undisputed failure by CFA to remit the proceeds of the sale of SPTB within two business days after December 28, 2007, as required by the 2006 agreement, constituted an “Event of Default” thereunder.1CFA’s purchase of SPTB in February 2007 was the last one it made with funds provided by Sotheby’s under the 2006 agreement. Thereafter, CFA neither borrowed additional funds under the agreement nor made any additional payments into the designated joint bank account. The parties have stipulated that, of the total principal amount of $2,166,000.00 that Sotheby’s disbursed to CFA under the 2006 agreement, $2,142,455.70 has not been repaid.After February 2007, the parties had intermittent communications concerning the disposition of the inventory CFA had purchased with Sotheby’s funds. The financial crisis of 2008 caused a serious downturn in the market for contemporary Chinese fine art, and CFA was left holding a substantial inventory of unsold art that it had purchased with Sotheby’s funds within the first year after the parties entered into the agreement. Sotheby’s made no demand for repayment on June 29, 2009, the date on which, by the terms of the 2006 agreement, repayment of the loan would have become due absent any prior “Event of Default.” In March 2010, Sotheby’s sent Mao at CFA an email suggesting possible ways to try to dispose of the art and stating that “[t]he goal is to work our way to a position where at the end of the year we have cut the current outstanding amount significantly.” Mao responded, in an email dated April 1, 2010, that he did not “see how there is any sort of outstanding debt” because, in his view at the time, “we all agreed that this arrangement would be a joint venture and not a loan from Sotheby’s to [CFA].”By letters to CFA and Mao, respectively, both dated March 8, 2011, Sotheby’s demanded repayment of the full principal amount of the loan, with accrued interest. In response, CFA, through Mao, sent Sotheby’s a letter, dated April 6, 2011, setting forth a “proposal to deal with the amounts claimed by Sotheby’s.” Mao proposed that the 2006 agreement be “replaced and extinguished” by a promissory note in the principal amount that Sotheby’s had demanded ($2,142,455.70), which “amount will not be subject to interest” and would be payable in quarterly installments over five years, with the debt being secured by the art previously purchased with Sotheby’s funds. As part of this proposal, Mao stated that he was also “willing to give Sotheby’s a second security interest in my apartment,” subject to his co-owner’s consent. The proposal was never implemented.Sotheby’s commenced this action against CFA, Mao and Chambers 2010, Inc. (another entity owned by Mao) on June 25, 2015. As relevant to this appeal, Sotheby’s asserts a cause of action against CFA for breach of the 2006 agreement and a cause of action against Mao for breach of his guarantee of CFA’s obligations under the 2006 agreement.2 Defendants’ answer raised the affirmative defense of the statute of limitation and asserted a counterclaim for breach of contract. In the order appealed from, Supreme Court granted defendants’ motion for summary judgment dismissing the complaint as barred by the statute of limitations, but denied defendants’ motion for summary judgment on their counterclaim.3 On Sotheby’s appeal and defendants’ cross appeal, we modify only to dismiss the counterclaim on a search of the record, and otherwise affirm.In addressing the issue of the timeliness of Sotheby’s claims, we begin by taking note of the Court of Appeals’ longstanding recognition — reiterated in its recent decisions — that “the statute of limitations is not only a personal defense but also expresses a societal interest or public policy of giving repose to human affairs” (Deutsche Bank Natl. Trust Co. v. Flagstar Capital Mkts., 32 NY3d 139, 151 [2018] [internal quotation marks omitted]; see also Ajdler v. Province of Mendoza, __ NY3d __, 2019 NY Slip Op 02151, *4 n 6 [March 21, 2019] ["Our statute of limitations doctrine serves the objectives of finality, certainty and predictability"] [internal quotation marks and alterations omitted]). That policy, the Court further noted in Deutsche Bank, “becomes pertinent where the contract not to plead the statute [of limitations] is in form or effect a contract to extend the period as provided by statute or to postpone the time from which the period of limitations is to be computed” (32 NY3d at 152 [internal quotation marks omitted], quoting John J. Kassner & Co. v. City of New York, 46 NY2d 544, 551 [1979], quoting 1961 Rep of NY Law Rev Commn at 97-98, reprinted in 1961 McKinney’s Session Laws of NY at 1871).To govern the resulting “subtle interplay… between the freedom to contract and New York public policy” (Deutsche Bank, 32 NY3d at 143), the legislature enacted General Obligations Law §17-103 (“Agreements waiving the statute of limitation”), the first paragraph of which provides:“A promise to waive, to extend, or not to plead the statute of limitation applicable to an action arising out of a contract express or implied in fact or in law, if made after the accrual of the cause of action and made, either with or without consideration, in a writing signed by the promisor or his agent is effective, according to its terms, to prevent interposition of the defense of the statute of limitation in an action or proceeding commenced within the time that would be applicable if the cause of action had arisen at the date of the promise, or within such shorter time as may be provided in the promise” (General Obligations Law §17-103[1] [emphasis added]).“An agreement to extend the statute of limitations that does not comply with these requirements [of §17-103(1)] ‘has no effect’” (Deutsche Bank, 32 NY3d at 153, quoting General Obligations Law §17-103[3]4; see also CPLR 201 ["An action… must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time is prescribed by written agreement," and "[n]o court shall extend the time limited by law for the commencement of an action”]).Sotheby’s causes of action against CFA for breach of the 2006 agreement and against Mao to enforce the guarantee are, of course, governed by a six-year statute of limitations (CPLR 213[2]). Under the terms of the 2006 agreement, Sotheby’s became entitled to demand immediate payment of the total outstanding balance of the loan two business days after December 28, 2007, when an “Event of Default” occurred upon CFA’s failure to remit the proceeds of the SPTB sale. The statute of limitations begins to run on a contractual claim for the payment of a sum of money “when the party that [is] owed money had the right to demand payment, not when it actually ma[kes] the demand” (Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 NY3d 765, 771 [2012]; see also ACE Sec. Corp., Home Equity Loan Trust, Series 2006-SL2 v. DB Structured Prods., Inc., 25 NY3d 581, 594 [2015] [noting that Hahn held "that breach of contract counterclaims began to run when insurers possessed the legal right to demand payment from the insured, not years later when they actually made the demand"] [internal quotation marks and brackets omitted]). Since the date two business days after December 28, 2007, was January 2, 2008 — and the parties never entered into a written agreement to waive or extend the statute of limitations in compliance with General Obligations Law §17-103 — Sotheby’s time in which to commence this action expired no later than January 2, 2014, about a year and a half before Sotheby’s actually brought suit on June 25, 2015.The foregoing notwithstanding, Sotheby’s argues that it delayed the accrual of its causes of action by waiving the “Events of Default” that occurred before June 29, 2009, the date on which repayment of the loan was set to become due absent any prior defaults.5 Specifically, Sotheby’s claims that the record at least raises a triable issue as to whether it waived CFA’s obligation to timely remit the proceeds of the SPTB sale or to make immediate repayment of the outstanding loan balance upon the occurrence of an “Event of Default” (which, as previously discussed, occurred no later than January 2, 2008).6 In this regard, Sotheby’s relies on authority holding that, even if a written agreement provides (as the 2006 agreement does) that none of its provisions “may be amended, supplemented or waived other than by means of a writing signed by [the parties],” a fully performed oral modification or waiver of the terms of such an agreement may be given effect.7 In none of the cases Sotheby’s cites was the timeliness of the action under the statute of limitations at issue.Sotheby’s position is untenable because the present case (unlike the cases it cites) implicates, not merely a contractual no-oral-modification clause, but “[t]he public policy represented by the statute of limitations, CPLR 201, and General Obligations Law §17-103″ (Deutsche Bank, 32 NY3d at 153). To vindicate that policy, General Obligations Law §17-103 mandates, inter alia, that a consensual extension of the statute of limitations on an already-accrued contractual claim be given effect only if the extension is set forth “in a writing signed by the promisor.” Because Sotheby’s fails to identify any such writing in this case, Supreme Court correctly dismissed Sotheby’s amended complaint as time-barred.To decide this appeal, we need not, and therefore do not, determine whether Sotheby’s has established that (or has raised an issue as to whether) it effectively waived CFA’s performance of any contractual obligation for purposes other than extending Sotheby’s time in which to sue.8 Even if Sotheby’s conduct was otherwise sufficient to effect such a waiver, any such waiver, if not embodied in a writing signed by CFA as required by General Obligations Law §17-103, would not be effective to delay the accrual of Sotheby’s cause of action for breach or otherwise to extend the statute of limitations on that claim. Sotheby’s cannot be permitted to circumvent §17-103 by characterizing the conduct on which it relies to avoid the statutory time-bar as its own waiver of an obligation of CFA rather than as an agreement by CFA to waive or extend the statute of limitations. Whatever label is placed on the conduct, the effect Sotheby’s seeks to draw from it — the extension of its time in which to commence suit — requires compliance with §17-103.The Court of Appeals’ Hahn decision is instructive. In Hahn, the Court of Appeals held that“any debts for which Zurich had the legal right to demand payment prior to May 2000, i.e., more than six years before the commencement of this action, are time-barred. To hold otherwise would allow Zurich to extend the statute of limitations indefinitely by simply failing to make a demand” (18 NY3d at 771 [footnote and internal quotation marks omitted]).Here, too, Sotheby’s theory that the accrual of its breach of contract claim was delayed by Sotheby’s alleged waiver of CFA’s obligation to remit the proceeds of the SPTB sale to the joint bank account in timely fashion — a waiver effected by nothing more than Sotheby’s failure to act, as previously noted — would result in an indefinite delay of the accrual of Sotheby’s claim until whatever time Sotheby’s saw fit to demand payment, thereby indefinitely extending the statute of limitations. This conclusion is not changed by the 2006 agreement’s backstop maturity date of June 29, 2009, since Sotheby’s continuing inaction until March 2011 (when it finally demanded payment) could similarly be said to have waived CFA’s obligation to make payment on June 29, 2009.9 In any event, under General Obligations Law §17-103, even an affirmative agreement by the parties to waive CFA’s obligation to make timely remittance of sale proceeds cannot have the effect of extending Sotheby’s time in which to sue unless memorialized in a writing signed by CFA.0We reject Sotheby’s argument that Mao’s aforementioned letter of April 6, 2011, which offered a “proposal to deal with the amounts claimed by Sotheby’s,” served to extend the limitation period pursuant to General Obligations Law §17-101. The letter was, in effect, a settlement offer conditioned on Sotheby’s acceptance of additional terms, a condition that was never satisfied (see National Westminster Bank USA v. Petito, 202 AD2d 193, 195 [1st Dept 1994]). We also find unavailing Sotheby’s arguments that defendants are judicially or equitably estopped to invoke the statute of limitations as a defense.Finally, as previously noted, the order under review also denied defendants’ motion for summary judgment on their counterclaim for breach of the 2006 agreement on the ground that CFA itself failed to perform. This determination, which defendants challenge on their cross appeal, was correct (see Sun Gold, Corp. v. Stillman, 95 AD3d 668 [1st Dept 2012]). Because CFA’s own breaches, as established by the record, render the counterclaim without merit, we modify the order appealed from, upon a search of the record, to grant Sotheby’s summary judgment dismissing the counterclaim.Accordingly, the order of the Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about March 1, 2017, which granted defendants’ motion for summary judgment dismissing the amended complaint, and denied defendants’ motion for summary judgment on the counterclaim, should be modified, on the law, upon a search of the record, to grant plaintiff summary judgment dismissing the counterclaim, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.All concur.Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about March 1, 2017, modified, on the law, upon a search of the record, to grant plaintiff summary judgment dismissing the counterclaim, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.Opinion by Friedman, J.P. All concur.Friedman, J.P., Richter, Kahn, Oing, Moulton, JJ.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
1. There is evidence that CFA committed other breaches of the 2006 agreement (such as failing to store the art as required by the agreement) before June 29, 2009. However, as it is plain that an “Event of Default” occurred with respect to the failure to remit the funds from the sale of SPTB, consideration of the other possible “Events of Default” is unnecessary to the determination of this appeal.2. As limited by the briefs, Sotheby’s appeal does not challenge Supreme Court’s dismissal of its other causes of action.3. In defendants’ notice of cross appeal, and in both sides’ respective appellate briefs, Supreme Court’s order is described as having dismissed the counterclaim. However, the order states only that “summary judgment as to [defendants'] counterclaim is denied.” Similarly, in the decision it rendered on the record, the court stated, “I am denying summary judgment on the counterclaim.” We note that Sotheby’s, in its notice of motion, did not request summary judgment dismissing the counterclaim.4. General Obligations Law §17-103(3) provides in full: “A promise to waive, to extend or not to plead the statute of limitation has no effect to extend the time limited by statute for commencement of an action or proceeding for any greater time or in any other manner than that provided in this section, or unless made as provided in this section.”5. If Sotheby’s causes of action had accrued on June 29, 2009, the commencement of this action on June 25, 2015, would have been timely.6. There is, at best, weak support in the record for Sotheby’s claim to have waived the “Event of Default” arising from CFA’s failure to remit the proceeds of the SPTB sale. In his affidavit, a Sotheby’s executive (who does not claim to have personal knowledge of the matter) makes the conclusory assertion that Sotheby’s “waived (as it was entitled to do in its sole discretion) [CFA's]… failure to remit payment from the sale of [SPTB] to Sotheby’s bank account within two business days.” In support of this assertion, the executive cites to the following brief excerpt from Mao’s deposition:“Q. You say you also chased Sotheby’s about the [SPTB] payment?“A. Yes, the settlement.“Q. And Sotheby’s never sued you or demanded the payment?“A. Never.”7. Sotheby’s cites the following cases for this proposition: Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P. (7 NY3d 96 [2006]); Rose v. Spa Realty Assoc. (42 NY2d 338 [1977]); Estate of Kingston v. Kingston Farms Partnership (130 AD3d 1464 [4th Dept 2015]); Aiello v. Burns Intl. Sec. Servs. Corp. (110 AD3d 234 [1st Dept 2013]); Taylor v. Blaylock & Partners (240 AD2d 289 [1st Dept 1997]); Marine Midland Bank v. Midstate Lbr. Co. (79 AD2d 783 [3d Dept 1980]); All-Year Golf v. Products Invs. Corp. (34 AD2d 246 [4th Dept 1970], lv denied 27 NY2d 485 [1970]).8. We note that Sotheby’s present position that it effected waivers as to any of CFA’s breaches is contradicted by its March 2011 demand letters to CFA and Mao, in which it stated that “no delay, failure or omission by us to exercise any right under the Agreement or otherwise, shall impair any right available to us under the Agreement or otherwise, or operate as a waiver of any such right.” Sotheby’s present position is also contradicted by its position at the commencement of this action. In its amended complaint, dated August 18, 2015, Sotheby’s alleged that the 2006 agreement “has never been modified by a writing signed by both Sotheby’s and [CFA] as required.” Similarly, in an affirmation submitted the previous month, Sotheby’s counsel averred that Sotheby’s had afforded defendants “years of courtesy… (none of which can constitute a waiver or an amendment to the Loan Agreement which, per §13, must be in a signed writing).”9. In fact, Sotheby’s takes the position in its appellate brief that it also waived the June 29, 2009 maturity date, stating: “Indeed, though by its terms the Loan Agreement fixed June 29, 2009 as the maturity date of the several loans, Sotheby’s agreed not to demand payment at that time (and until March 8, 2011).” By Sotheby’s reasoning, the alleged waiver of the June 2009 due date would also serve to delay accrual of the cause of action, thereby opening the door to indefinite extension of the statute of limitations — a result plainly impermissible under Hahn.10. Hahn cannot be distinguished on the ground that the failure to demand payment in that case was the result of “inadvertence” (id. at 771) while here the delay was intentional. Mere delay, whether intentional or inadvertent, cannot serve to extend the statute of limitations. On its face, General Obligations Law §17-103 governs intentional conduct.By Acosta, P.J., Renwick, Mazzarelli, Gesmer, Singh, JJ.7775-7776. PEOPLE, res, v. James Eury, def-ap — Christina A. Swarns, Office of the Appellate Defender, New York (Kami Lizarraga of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Yan Slavinskiy of counsel), for res — Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered January 11, 2016, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him to a term of two years, unanimously affirmed.The arresting officer’s knowledge that defendant was on a list of persons barred from entering The Polo Grounds, a Housing Authority complex, was enough to create probable cause to arrest him for criminal trespass (in violation of a no trespass notice) in such a building (Penal Law 140.10[f]). The officer was part of a team of officers that had arrested defendant two months earlier in The Polo Grounds, after which defendant ultimately pleaded guilty to trespass. In this previous interaction with defendant, the officer learned that defendant was in the “trespass program.”We note, however, that trespass notices (such as the one in the instant case) often have exceptions that allow recipients to visit family members who live in Housing Authority complexes. In those situations, since the person is legally authorized to be on site despite the trespass notice, he/she should be allowed to visit, with police intrusion aimed primarily at ascertaining that the person is headed to the right apartment. To this end, we note that probable cause is not decided by the “officer’s subjective evaluation” but by an “objective judicial determination of the facts in existence and known to the officer” at the time arrest (People v. Robinson, 271 AD2d 17, 24 [1st Dept 2000] [internal quotation marks omitted], affd 97 NY2d 341 [2014]). Thus, there must be a basis for an inference by the arresting officer, at the time of arrest, that the suspect “knowingly enters or remains unlawfully [on the premises]… in violation of a personally communicated request to leave the premises from a housing police officer or other person in charge thereof” (Penal Law §140.10[f]).We also reject defendant’s other suppression argument, relating to a visual body cavity search, on the merits. The hearing evidence established that this search was supported by “a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity” (People v. Hall, 10 NY3d 303, 311 [2008], cert denied 555 US 938 [2008]). The totality of the evidence supported the officers’ belief that defendant was hiding contraband in his buttocks, and we have considered and rejected defendant’s arguments to the contrary.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9193. PEOPLE, res, v. Ezequiel Rodriguez, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for res — An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Renee White, J.), rendered April 30, 2013,Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive,It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.Counsel for appellant is referred to§606.5, Rules of the AppellateDivision, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9194. Joseph Levine plf-res, v. Sunseet Singal def, First Capital Real Estate Advisors, LP, def-ap — Brinen & Associates, New York (Joshua D. Brinen of counsel), for ap — Wollmuth Maher & Deutsch LLP, New York (Nicole M. Clark of counsel), for res — Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about April 20, 2018, to the extent it granted plaintiff’s cross motion for entry of a default judgment against defendant First Capital Real Estate Advisors, LP (defendant) unanimously reversed, on the law, with costs, and the default vacated with leave for defendant to file an answer within 10 days of service of notice of entry of this order.Defendant’s time to answer the complaint was extended by virtue of its serving a notice of motion, together with its co-defendants, seeking dismissal of the causes of action asserted against the co-defendants, pursuant to CPLR 3211(f) (see also CPLR 320[a]; 3012[a], [c]). Generally, a CPLR 3211(a) motion to dismiss made against any part of a pleading extends the time to serve a responsive pleading to all of it (see Chagnon v. Tyson, 11 AD3d 325 [1st Dept 2004]). Here, Advisors did not default, but appeared by joining in defendants’ motion to dismiss the causes of action asserted against the individual named defendants, thereby extending its time to answer the complaint (see De Falco v. JRS Confectionary, 118 AD2d 752 [2d Dept 1986]). Thus, Advisors had ten days from service upon it of notice of entry of the order deciding the partial motion to dismiss, to answer the causes of action against it, pursuant to CPLR 3211(f).Defendant’s appeal from the order granting the default motion was proper, as it appeared and contested the application for entry of a default order below (Cole-Hatchard v. Eggers, 132 AD3d 718 [2d Dept 2015]; see also Spatz v. Bajramoski, 214 AD2d 436 [1st Dept 1995]). Accordingly, CPLR 5511, which generally prohibits an appeal from an order or judgment entered upon default, is inapplicable (id.).We have considered the remaining arguments and find them unavailing.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9195. In re Alisha A., A Child under Eighteen Years of Age, etc., Nelson V., res-ap, Administration for Children’s Services, pet-res — Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for ap — Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for res — Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child.—Order of fact-finding and disposition (one paper), Family Court, New York County (Jane Pearl, J.), entered on or about October 23, 2017, insofar as it determined that respondent Nelson V. was a person legally responsible for the subject child, and sexually abused her, unanimously affirmed, without costs.The determination that respondent sexually abused the child Alisha A. is supported by a preponderance of the evidence (see Family Ct Act §§1046[b][i]; 1012[e][iii][A]; Matter of Tammie Z., 66 NY2d 1 [1985]). The Family Court was in the best position to observe the witnesses and assess their demeanor, and there is no basis to disturb its credibility determinations (see Matter of Irene O., 38 NY2d 776, 777 [1975]; Matter of Nasir J., 35 AD3d 299 [1st Dept 2006]).The record supports the Family Court’s determination that, at the time of the abuse, respondent was a person legally responsible for the child, because he cared for her and assumed other household duties during the period in which the abuse occurred. He also held her out as his daughter, and arranged a family outing that included her with his then-girlfriend and her family. Appellant’s contentions that he had no relationship with Alisha A. were rebutted not only by the testimony of the child and her mother, but by the testimony of his girlfriend on his behalf. The fact that he may not have lived with the child consistently does not preclude the finding that he was legally responsible for the child’s well-being during the relevant period (see Matter of Yolanda D., 88 NY2d 790 [1996]; Matter of Christopher W., 299 AD2d 268 [1st Dept 2002]).We have considered appellant’s remaining contentions and find them unavailing.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9196. Sharon Neppl, Plaintiff, v. Fairway Pelham LLC, def-res, Levin Properties, L.P., def-ap — Milber Makris Plousadis & Seiden, LLP, White Plains (Vincent Camacho of counsel), for ap — Cerussi & Spring, P.C., White Plains (Gabrielle R. Lang of counsel), for res — Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about May 7, 2018, which granted the motion of defendant Fairway Pelham LLC (Fairway) for summary judgment dismissing the complaint and all cross claims against it, unanimously reversed, on the law, without costs, and the motion denied.The governing lease between defendant Levin Properties, L.P. (Levin), the landlord of a large shopping center, and Fairway, a commercial tenant in the shopping center, unambiguously allocates to Levin the duty to maintain the shopping center parking lot, including keeping it free of snow and ice (see Waverly Corp. v. City of New York, 48 AD3d 261, 264-65 [1st Dept 2008]). However, plaintiff does not allege where the accident occurred. Accordingly, at this stage, summary judgment was not appropriate.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Singh, JJ.9197. Yeshaya Averbuch, suing individually and derivatively on behalf of New York Budget Inn LLC plf-ap, v. New York Budget Inn LLC def, JBJB Associates LLC def-res — David E. Schorr, New York, for ap — Becker, Glynn, Muffly, Chassin & Hosinski LLP, New York (Andrea Likwornik Weiss of counsel), for res — Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered January 10, 2018, which denied plaintiffs’ motion for leave to amend the complaint, unanimously affirmed, without costs.Defendants argue that this appeal should be dismissed on standing grounds, because New York Budget Inn LLC, on whose behalf plaintiff Averbuch seeks to assert claims for conversion and breach of fiduciary duty in connection with certain lease settlement monies, was dissolved on March 20, 2018. However, defendants failed to show that New York Budget Inn’s business was completely wound up by the time the motion court addressed plaintiffs’ motion for leave to amend (see Singer v. Riskin, 137 AD3d 999 [2d Dept 2016], citing Tedesco v. A.P. Green Indus., Inc., 8 NY3d 243 [2007]; Limited Liability Company Law §703[b]).The motion was properly denied because the proposed claims are palpably devoid of merit, given the terms of the lease agreement at issue and the parties’ operating agreement for New York Budget Inn, which together provided that defendant JBJB Associates LLC was the sole lessee of the premises and that New York Budget Inn’s payment of the lease security and monthly rent, inter alia, could not operate to confer upon it a lease interest of any type, whether by assignment, sublet, or otherwise (see ID Beauty S.A.S. v. Coty Inc. Headquarters, 164 AD3d 1186 [1st Dept 2018]).We have considered plaintiffs’ remaining arguments and find them unavailing.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9198. Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP plf-ap, v. Matthew Bender & Company, Inc., a Member of LexisNexis Group, Inc., def-res — Fishmanlaw, PC, New York (James B. Fishman of counsel), and Anderson Kill, PC, New York (Jeffrey E. Glen of counsel), for ap — Skadden, Arps, Slate, Meagher & Flom LLP, New York (Anthony J. Dreyer of counsel), for res — Order, Supreme Court, New York County (Charles E. Ramos, J.), entered February 20, 2018, which granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211(a), unanimously affirmed, without costs.Plaintiffs allege that defendant Matthew Bender & Company Inc.’s New York Landlord-Tenant Law, commonly known as the Tanbook, is “rife with inaccuracies and omissions,” at least with respect to rent-regulated housing in New York City. The Tanbook is a compilation of statutes, regulations, and editorial contents such as summaries and commentaries, addressing New York rent regulation and landlord-tenant law. Plaintiffs allege that there have been such inaccuracies and omissions in annual editions of the Tanbook for at least six years preceding 2017.The breach of express warranty claim, based on the representations defendant made about the content of the Tanbook in the book’s “Overview” and on websites on which the book was sold, was correctly dismissed because the Terms and Conditions pursuant to which defendant sold the Tanbook to plaintiffs contain a merger clause and a disclaimer of warranties, which states, in bold type, “We do not warrant the accuracy, reliability or currentness of the materials contained in the publications” (see Uniform Commercial Code [UCC] §2-202; Potsdam Cent. Schools v. Honeywell, Inc., 120 AD2d 798, 800 [3d Dept 1986]). Contrary to plaintiffs’ contention, this is a specific, not a general, disclaimer. In addition, the complaint fails to allege that plaintiffs relied on the statements that they contend constitute an express warranty (see CBS Inc. v. Ziff-Davis Publ. Co., 75 NY2d 496, 503 [1990]; see also Murrin v. Ford Motor Co., 303 AD2d 475, 477 [2d Dept 2003] [the plaintiff failed to allege that he even was aware of the advertisements he claimed formed an express warranty]). Although this defect was cured with respect to plaintiff law firm by Samuel J. Himmelstein’s affidavit in opposition (see Rovello v. Orofino Realty Co., 40 NY2d 633, 635-636 [1976]), it was not cured with respect to the other plaintiffs.The disclaimer of warranties also precludes the claim for breach of the implied covenant of good faith and fair dealing (see Peter R. Friedman, Ltd. v. Tishman Speyer Hudson L.P., 107 AD3d 569, 570 [1st Dept 2013]), which in any event is duplicative of the breach of contract claim (Apogee Handcraft, Inc. v. Verragio, Ltd., 155 AD3d 494, 495-496 [1st Dept 2017], lv denied 31 NY3d 903 [2018]; Shilkoff, Inc. v. 885 Third Ave. Corp., 299 AD2d 253 [1st Dept 2002]). In addition, plaintiffs identified no contractual provisions that required defendant to update the 2016 edition of the book, notify publishers of errors in it, or issue the 2017 edition sooner that it did.The GBL §349 claim was correctly dismissed because the only injury alleged to have resulted from defendant’s allegedly deceptive business practices is the amount that plaintiffs paid for the book, which does not constitute an injury cognizable under the statute (see Small v. Lorillard Tobacco Co., 94 NY2d 43, 56 [1999]; Donahue v. Ferolito, Vultaggio & Sons, 13 AD3d 77, 78 [1st Dept 2004], lv denied 4 NY3d 706 [2005]; Rice v. Penguin Putnam, 289 AD2d 318 [2d Dept 2001], lv dismissed in part, denied in part 98 NY2d 635 [2002]). In addition, the complaint fails to allege that the individual plaintiff and plaintiff Housing Court Answers, Inc. ever saw the allegedly deceptive representations that purportedly harmed them (see Gale v. International Bus. Machines Corp., 9 AD3d 446, 447 [2d Dept 2004]).We do not reach plaintiffs’ argument, raised for the first time in their appellate reply brief, that defendant’s representations as to the contents of the book constitute a fraud (see Mehmet v. Add2Net, Inc., 66 AD3d 437, 438 [1st Dept 2009]).We have considered plaintiffs’ remaining contentions and find them unavailing.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9199. Juanita Young, plf-res, v. The Associated Blind Housing Development Fund Corporation, et al., def-res, Procida Construction Corp., def-ap — Rivkin Radler LLP, Uniondale (J’Naia L. Boyd of counsel), for ap — Burns & Harris, New York (Jason S. Steinberg of counsel), for Juanita Young, res — Manning & Kass, Ellrod, Ramirez, Trester LLP, New York (Marguerite L. Jonak of counsel), for the Associated Blind Housing Development Fund Corporation, Associated Blind Foundation, Inc., ARCO Management Corp. and Multifamily Management Services, res — Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered June 28, 2018, which denied the motion of defendant Procida Construction Corp. (Procida) for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.Plaintiff seeks to recover for injuries sustained when she tripped and fell on an alleged sidewalk defect. Procida, which had been hired to perform renovation work on the abutting premises, established that it did not perform any work on the sidewalk prior to plaintiff’s accident (see Torres v. Consolidated Edison Co. of N.Y. Inc., 127 AD3d 656 [1st Dept 2015]; Amini v. Arena Constr. Co., Inc., 110 AD3d 414 [1st Dept 2013]). Procida showed that it was only contracted to make repairs to the sidewalk after exterior scaffolding and a sidewalk shed were removed upon completion of the renovation project, and the evidence shows that at the time of plaintiff’s accident, the scaffolding and shed were still in place (see Flores v. City of New York, 29 AD3d 356 [1st Dept 2006]).In opposition, neither plaintiff nor the other defendants raised a triable issue of fact as to whether the subject sidewalk was narrowed, forcing plaintiff to walk onto the defect. The representative of the premises’ owner testified that the portion of the sidewalk where plaintiff fell was not narrowed, and plaintiff testified that she could not see the sidewalk where she was walking, due to a visual impairment and because a pizza box she was holding obstructed her view. The remaining record is bereft of evidence that the scaffolding and sidewalk shed diverted her toward the uneven sidewalk flag (see Roimesher v. Colgate Scaffolding & Equip. Corp., 77 AD3d 425 [1st Dept 2010]; see also Betances v. 700 W. 176th St. Realty Corp., 250 AD2d 504 [1st Dept 1998]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9200-9201. PEOPLE, res, v. Raymond Mayrant, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for ap — Darcel D. Clark, District Attorney, Bronx (Cynthia A. Carlson of counsel), for res — Judgment, Supreme Court, Bronx County (Alvin M. Yearwood, J.), rendered January 5, 2016, as amended February 11, 2016, convicting defendant, after a jury trial, of murder in the second degree and attempted murder in the second degree, and sentencing him to consecutive terms of 25 years to life and 25 years, respectively, unanimously affirmed.The court properly granted the People’s challenge for cause to a prospective juror. This issue turns on whether certain clearly disqualifying statements made by a panelist not identified in the record were, in fact, made by the panelist who was the subject of the challenge. The voir dire record, viewed as a whole, supports the inference that it was the panelist in question who made these statements. Accordingly, the court providently exercised its discretion in excusing the panelist for cause, because her answers cast “serious doubt on [her] ability to render an impartial verdict” (People v. Arnold, 96 NY2d 358, 363 [2001]).The verdict was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s credibility determinations. The surviving victim’s account of the incident was plausible, and was corroborated by other evidence, while defendant’s testimony was incredible.We perceive no basis for reducing the sentence.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9202. PEOPLE, res, v. Johnny Sydney, def-ap — Justine M. Luongo, The Legal Aid Society, New York (Ronald Alfano of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Francesca Bartolomey of counsel), for res — Judgment, Supreme Court, New York County (Juan M. Merchan, J. at suppression hearing; Kahn, J. at nonjury trial and sentencing), rendered February 23, 2016, convicting defendant of criminal possession of a controlled substance in the seventh degree, and sentencing him to time served and a conditional discharge, unanimously affirmed.The court properly denied defendant’s motion to suppress the drugs recovered from him. There was probable cause for an arrest, based on a detailed radioed description of defendant, which was sufficiently connected to a subsequent “positive buy” transmission, especially in that the arresting officer personally observed defendant interacting with the undercover officer who made the purchase (see People v. Ketcham, 93 NY2d 416, 419 [1999]; People v. Wilson, 260 AD2d 325 [1st Dept 1999], lv denied 93 NY2d 1007 [1999]). Accordingly, the police were entitled to arrest and search defendant, even before the undercover officer made a confirmatory identification.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9203. In re Elijah R., A Person Alleged to be a Juvenile Delinquent, ap — JJ. Dawne A. Mitchell, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for ap — Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for presentment agency.—Order of disposition, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about September 20, 2017, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of grand larceny in the fourth degree, petit larceny and criminal possession of stolen property in the fifth degree, and placed him on probation for a period of 12 months, unanimously modified, on the law, to the extent of dismissing the petit larceny count, and otherwise affirmed, without costs.The court’s finding was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court’s determinations concerning identification and credibility. The evidence established that the victim was very familiar with appellant, who was her fellow student.The court providently exercised its discretion in imposing probation rather than granting appellant’s request for an adjournment in contemplation of dismissal. Probation was the least restrictive alternative consistent with appellant’s needs and those of the community (see Matter of Katherine W., 62 NY2d 947 [1984]). The seriousness of the offense as well as appellant’s poor academic, attendance and disciplinary record at school and at home warranted a 12-month period of supervision.However, we dismiss the petit larceny count as a lesser included offense of grand larceny in the fourth degree.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9204. Debbie Pappas, as personal representative of the Estate of Louis Pappas, individually and derivatively on behalf of The 38-40 LLC, plf-ap, v. The 38-40 LLC def-res, Nick Glendis def — Camarinos Law Group, LLC, New York (John M. Mavroudis and Michael D. Camarinos of counsel), for ap — Rosenberg & Estis, P.C., New York (Bradley S. Silverbush of counsel), for the 38-40 LLC, res — Pryor Cashman LLP, New York (David C. Rose of counsel), for Philip Kirsh, res — Judgment, Supreme Court, New York County (Saliann Scarpulla, J.), entered May 4, 2018, dismissing the complaint, and bringing up for review an order, same court and Justice, entered February 23, 2018, which granted defendants’ cross motion to dismiss the derivative claims with prejudice and dismiss the individual claims without prejudice, and denied plaintiff’s motion for a preliminary injunction and appointment of a temporary receiver, unanimously affirmed, without costs.Under the terms of the LLC’s operating agreement, plaintiff is a successor in interest to her decedent’s membership interest in the LLC. As such, she is not a member of the LLC (see MFB Realty LLC v. Eichner, 2016 NY Slip Op 31242[U] [Sup Ct, NY County 2016), affd 161 AD3d 661 [1st Dept 2018]). Defendants’ grant of access to books and records and issuance of a K-1 did not constitute admissions by defendants that plaintiff was a member.Plaintiff, who held an interest only in decedent’s estate, was not the “legal or equitable owner” of a membership interest (Estate of Calderwood v. Ace Group International LLC, 157 AD3d 190, 194 [1st Dept 2017] [under the terms of the operating agreement, upon the death of a LLC member, the estate as successor-in-interest only retains the rights to distributions]).Because plaintiff’s individual claims were substantially identical to her derivative claims, the IAS court did not err in dismissing them without prejudice as impermissibly mingled (see Barbour v. Knecht, 296 AD2d 218, 227-228 [1st Dept 2002]).Since plaintiff’s complaint was dismissed, her motion was properly denied.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9205-9205A. PEOPLE, res, v. Luis Pena, a/k/a Manuel Pena, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for ap — Darcel D. Clark, District Attorney, Bronx (Ryan J. Foley of counsel), for res — Judgments, Supreme Court, Bronx County (Ethan Greenberg, J. at motions to controvert search warrants; Albert Lorenzo, J. at pleas and sentencing), rendered November 21, 2016, convicting defendant of two counts of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to concurrent terms of two years, unanimously affirmed.Regardless of whether defendant made a valid waiver of the right to appeal, we find, based on our in camera review of the sealed search warrant documents, that there was probable cause for the issuance of both warrants.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9207. Miriam Vazquez, etc. Plaintiffs, v. Beth Abraham Health Services def — Beth Abraham Health Services, Third-Party plf-ap, v. New York City Health and Hospital, etc., Third-Party def, Ross Friedman, M.D. Third-Party def-res — Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for ap — Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliot J. Zucker of counsel), for Ross Friedman, M.D., res — Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for Regional Physicians Services, P.C., res — Order, Supreme Court, Bronx County (George J. Silver, J.), entered on or about August 24, 2018, which granted third-party defendant Ross Friedman, M.D.’s motion for summary judgment dismissing the third-party complaint as against him and granted third-party defendant Regional Physicians Services d/b/a Matrix Medical Network’s (Matrix) motion for summary judgment to the extent of dismissing the third-party claims for common-law indemnification and contribution as against it, unanimously reversed, on the law, without costs, and the motions denied.Dr. Friedman failed to make a prima facie showing that he did not commit medical malpractice, because his expert’s affidavit was based on a disputed issue of fact (see Carey v. St. Barnabas Hosp., 162 AD3d 435 [1st Dept 2018]). The expert asserted that, although Nurse Hughes had noted in the medical chart that the patient was momentarily unresponsive upon returning from physical therapy, Dr. Friedman had never been so informed, and that Dr. Friedman also did not know that the patient had been given oxygen after physical therapy. The expert opined that Dr. Friedman reacted timely and appropriately.However, Nurse Hughes testified that she called Dr. Friedman at around noon, i.e., shortly after giving the unresponsive patient oxygen, and informed him of this. Dr. Friedman testified that he did not recall receiving a phone call advising him that decedent was dizzy and was not responsive. Dr. Friedman stated that has he received a call that the patient was unresponsive, even momentarily, he would have had the patient immediately transferred to the hospital. Accordingly, the third-party action should not have been dismissed as to Dr. Friedman.Matrix failed to make a prima facie showing that it is not liable for Dr. Friedman’s alleged malpractice, because it did not establish that Dr. Friedman was an independent contractor, rather than an employee (see Melbourne v. New York Life Ins. Co., 271 AD2d 296, 297 [1st Dept 2000]; Marino v. Vega, 12 AD3d 329 [1st Dept 2004]). The record shows both that Dr. Friedman reported to defendant/third-party plaintiff Beth Abraham Health Services’s medical director and that Matrix paid Dr. Friedman and was responsible for his employment benefits. Moreover, Matrix did not submit its contract with Dr. Friedman, a key piece of evidence in determining Dr. Friedman’s status as an employee or an independent contractor (see Felter v. Mercy Community Hosp. of Port Jervis, 244 AD2d 385, 386 [2d Dept 1997]).We have considered Dr. Friedman’s and Matrix’s remaining arguments and find them unavailing.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9208. PEOPLE, res, v. Noel Alfonso, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Nicolas Duque Franco of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), for res — Judgment, Supreme Court, New York County (Larry R.C. Stephen, J.), rendered November 30, 2016, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him to a term of seven years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to five years, and otherwise affirmed.We do not find that defendant made a valid waiver of his right to appeal, and we find the sentence excessive to the extent indicated.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9209-9210. Susan Forman, plf-ap, v. The Whitney Center for Permanent Cosmetics Corp def-res — Antin, Ehrlich & Epstein, LLP, New York (Melissa Kobernitski of counsel), for ap — Steinberg & Cavaliere, LLP, White Plains (Robert P. Pagano of counsel), for res — Judgment, Supreme Court, New York County (Lynn R. Kotler, J.), entered April 17, 2018, and bringing up for review an order, same court and Justice, entered on or about March 30, 2018, which granted defendants’ motion for summary judgment, unanimously affirmed, without costs. Appeal from aforementioned order, unanimously dismissed, as subsumed in the appeal from the judgment, without costs.Defendants’ motion for summary judgment was properly granted (see generally Zuckerman v. New York, 49 NY2d 557, 562 [1980]). Defendants established that plaintiff, who had been getting cosmetic eyebrow tattoos periodically for over twenty years, signed a consent form indicating that she understood the risks involved in getting eyebrow tattoos and that she was responsible for the placement and shape of her eyebrows. Prior to performing any pigmentation work, the eyebrows were drawn on and plaintiff explicitly approved of the proposed shape and location on her forehead. Defendants then tattooed plaintiff where she had approved. In opposition, plaintiff failed to raise a triable issue of fact concerning defendants’ alleged negligence.Even assuming that plaintiff preserved her argument that defendant Melany Whitney’s affidavit was invalid for lack of certification, as required by CPLR 2309(c), the trial court properly considered the affidavit. Courts are not rigid with this certification requirement. Provided that the oath was duly given (which it was here), authentication of the oathgiver’s authority may be secured later and given nunc pro tunc effect (Matapos Tech. Ltd v. Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [1st Dept 2009]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9211-9212. PEOPLE, res, v. John Wilson, def-ap — Seymour W. James, Jr., The Legal Aid Society, New York (Alan S. Axelrod of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for res — Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered June 27, 2014, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the first degree and conspiracy in the second degree, and sentencing him, as a second felony drug offender, to an aggregate term of 12 years, unanimously affirmed.The court correctly denied, on the ground of lack of standing as well as on the merits, defendant’s motion to controvert two search warrants. Defense counsel’s equivocal, vague and conclusory statements that defendant had standing to challenge the searches of two separate locations based upon information and belief that defendant resided in both of those premises failed to allege facts sufficient to demonstrate a reasonable expectation of privacy in either place (see CPL 710.60[1]; People v. Holder, 149 AD2d 325, 326 [1st Dept 1989], lv denied 74 NY2d 794 [1989]). Based on, among other things, our review of sealed materials, we also find that the warrants were based on probable cause.Defendant’s claim that his guilty plea was rendered involuntary by the court’s allegedly coercive remarks and inaccurate description of the sentencing exposure is unpreserved (see People v. Ali, 96 NY2d 840 [2001]; see also People v. Conceicao, 26 NY3d 375, 382 [2015]), and we decline to review it in the interest of justice. As an alternative holding, we find that the court made remarks that should have been avoided, but that the record as a whole, including the fact that defendant had already received an extensive opportunity to consider the plea offer and confer with counsel, establishes the voluntariness of the plea (see People v. Luckey, 149 AD3d 414, 415 [1st Dept 2017], lv denied 29 NY3d 1082 [2017]).Defendant was properly adjudicated a second felony drug offender. The record established the necessary sequentiality of convictions, and defendant’s argument to the contrary rests on a typographical error in the predicate felony offender statement as to the date of the predicate conviction.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9213. Sau-Kuen Shek, plf-res, v. Stefanie M. Gachineiro, def-ap, Nissan-Infinity, L.T., def — McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Carle Place (Barry L. Manus of counsel), for ap — Caesar and Napoli, P.C., New York (Kelsey M. Crowley of counsel), for res — Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about November 7, 2018, which granted plaintiff’s motion for partial summary judgment on the issue of liability as against defendant Gachineiro, unanimously reversed, on the law, without costs.Plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability.In opposition, Gachineiro’s affidavit raised a triable issue of fact. We note that depositions have not yet been held.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9215-9216N. Camille Hendrickson, plf-ap, v. New York City Housing Authority, def-res — Burns & Harris, New York (Jason S. Steinberg of counsel), for ap — Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for res — Orders, Supreme Court, Bronx County (Laura G. Douglas, J.), entered January 9, 2018, and November 8, 2018, which, to the extent appealed from as limited by the briefs, granted defendant’s motion for discovery-related penalties or sanctions to the extent of precluding plaintiff from offering evidence of head injury at trial, and denied plaintiff’s motion for leave to renew, unanimously affirmed, without costs.The motion court providently exercised its discretion in precluding plaintiff from presenting evidence of head injury at the trial of this action. In a June 15, 2017 stipulation, plaintiff represented that her claim for exacerbation and/or aggravation of preexisting injuries was confined to her asymptomatic back and neck injuries. In addition, plaintiff admitted that, despite court orders and so-ordered stipulations, she failed to timely provide defendant with authorizations to obtain medical records pertaining to a preexisting head injury. Plaintiff contends that her failures to provide the medical authorization and the stipulation limiting her claim were inadvertent errors; she stated that the medical authorization was inadvertently placed in the file and that the stipulation was signed by an attorney who was not assigned to the case. However, the extent of these errors and the time that elapsed before they were corrected fully justify the remedy imposed by the court (see Williams v. Shiva Ambulette Serv. Inc., 102 AD3d 598, 599 [1st Dept 2013]).Plaintiff admitted that she failed to present new facts in support of her motion to renew (see CPLR 2221[e][2]). She also failed to demonstrate that the denial of her motion resulted in the defeat of substantial fairness (see Rancho Santa Fe Assn. v. Dolan-King, 36 AD3d 460, 461 [1st Dept 2007]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Friedman, Manzanet-Daniels, Gesmer, Singh, JJ.9219. In re Juan M. Vazquez, [M-366]pet, v. By Curtis Farber, etc. res — Juan M. Vazquez, petitioner pro se. Letitia James, Attorney General, New York (Melissa Ysaguirre of counsel), for By Curtis Farber and Letitia James, res — Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), for Shira Arnow, res — The above-named petitioner having presented an application to this Court praying for an order, pursuant to article 78 of the Civil Practice Law and Rules,Now, upon reading and filing the papers in said proceeding, and due deliberation having been had thereon,It is unanimously ordered that the application be and the same hereby is denied and the petition dismissed, without costs or disbursements.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Acosta, P.J., Richter, Manzanet-Daniels, Webber, Kern, JJ.9347. &Angel Leonides Cashbamba, M-1611plf-ap, v. 1056 Bedford LLC def-res — [And a Third Party Action] Oresky & Associates, PLLC, Bronx (John J. Nonnenmacher of counsel), for ap — Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola (Gail L. Ritzert of counsel), for res — Order, Supreme Court, Bronx County (George J. Silver, J.), entered on or about November 21, 2018, which granted defendants’ post-note-of-issue motion for discovery-related relief to the extent of directing plaintiff to appear for an independent neurological examination, to provide authorization for the release of plaintiff’s employment file, and to respond to defendants’ demands for authorizations pursuant to Arons v. Jutkowitz (9 NY3d 393 [2007]), unanimously modified, on the law, to deny defendants’ request for an independent neurological examination and otherwise affirmed, without costs.Defendants failed to comply with the requirement of 22 NYCRR 202.7 to submit an affirmation of good faith in support of their disclosure-related motion. Contrary to their contention, their counsel’s affirmations are insufficient, because they do not include the time, place, and nature of the consultations that counsel had with plaintiff’s counsel to try to resolve the issues raised by the motion (22 NYCRR 202.7[c]; see 241 Fifth Ave. Hotel, LLC v. GSY Corp., 110 AD3d 470, 471-472 [1st Dept 2013]; see also Loeb v. Assara N.Y. I, L.P., 118 AD3d 457, 457-458 [1st Dept 2014]). To the extent defendants rely on letters exchanged between their counsel and plaintiff’s counsel, the letters are insufficient, because they relate to only one of the items sought by defendants and do not reference any discussions between counsel. Moreover, the record does not support defendants’ contention that the parties have historically been unable to resolve discovery disputes without court intervention.Furthermore, defendants failed to provide an adequate explanation for their delay in seeking to compel the examination after plaintiff failed to appear. They also failed to explain why they did not move to reargue and/or appeal the court’s decision of June 15, 2017, wherein it denied defendants’ motion to vacate the note of issue. In its decision, the court stated that the motion was denied as moot as “[a]ll discovery sought in the motion has now been provided.” Instead, defendants waited until August 27, 2018, to move to strike the complaint or to preclude plaintiff from providing evidence of his neurological injuries or for an order compelling plaintiff to appear for an independent neurological examination and to provide authorizations.This Court notes that at oral argument on April 24, 2019, plaintiff conceded his willingness to provide authorizations for the release of plaintiff’s employment file and as well as his obligation to respond to defendants’ demands for authorizations in accordance with Arons v. Jutkowitz, 9 NY3d at 393.M-1611 – Angel Leonides Cashbamba v. 1056 Bedford LLC Motion for a stay denied.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Sweeny, J.P., Tom, Webber, Kahn, Kern, JJ.8356. Foday Bajaha, plf-res, v. Mercy Care Transportation, Inc. def-ap, Robert Rivera, def — Cascone & Kluepfel, LLP, Garden City (Beth L. Rogoff Gribbins of counsel), for ap — Pollack, Pollack, Isaac & DeCicco, LLP, New York (Jillian Rosen of counsel), for res — Order, Supreme Court, Bronx County (Donald A. Miles, J.), entered on or about June 20, 2018, which granted plaintiff’s motion for partial summary judgment on the issue of liability, reversed, on the law and the facts, without costs, and the matter remanded for further proceedings.This personal injury action arises from an incident occurring on November 15, 2014 at shortly after 10 a.m. in an ambulette that was transporting a nonparty disabled patient from the Staten Island Care Center, a rehabilitation facility, to a hospital. Plaintiff was a health care aide employed by the facility. Defendant Rivera was employed as a driver for the ambulette by defendant Mercy Care Transportation, Inc. Plaintiff, who was assigned by the facility to accompany the patient to the hospital, testified that when he entered, the patient was already inside the ambulette in a wheelchair. The factual accounts of what occurred next diverge in a manner that precludes summary judgment as to liability against defendants.Plaintiff testified at his deposition that when he arrived at the ambulette, the driver was already seated inside and was using his phone. Plaintiff entered the compartment of the ambulette through the side door on the passenger side of the vehicle. The patient was in a wheelchair in the middle of the ambulette. Plaintiff testified that he did not have his seat belt on; subsequently, though, he testified that there was no seat belt, and that “it’s just a chair, you just sit.” He testified that as the vehicle pulled out fast he may not have been sitting yet, causing him to fall to the floor and the wheelchair to tip over onto him, at which point, plaintiff claimed, he blacked out for four or five seconds, impairing his memory. Plaintiff testified that he could not recall how the wheelchair came to fall onto him or the direction in which it fell, except that it flipped over, falling onto and scratching his left knee, and that the patient called out in fright.It took about a half block before the vehicle came to a gradual stop. When the driver opened the side door to see what had happened, plaintiff claimed that he had already uprighted himself, had lifted the wheelchair off of him and was sitting in his seat. The patient, who sustained a bump on his head and was screaming, had been strapped into the wheelchair and so had not fallen out. Plaintiff was unaware whether the wheelchair had been fastened to the vehicle. The driver called in the incident to a supervisor who, when plaintiff was handed the phone, tried to blame plaintiff for the accident.In his affidavit in support of his motion for summary judgment, plaintiff claimed that the driver had “abruptly started the ambulette, before I could secure myself within the vehicle causing me to be thrown violently and precipitously within the vehicle,” as a result of which he “came into contact with the patient’s wheelchair,” and thereby was injured.In stark contrast, Rivera, the driver, testified at his deposition that he had wheeled the patient into the ambulette, secured the wheelchair by locking the wheels and further secured it with four hooks attached to tie-downs fastening the wheelchair to the vehicle, which when tightened to prevent its movement in all four directions. After exchanging pleasantries, Rivera saw plaintiff enter the ambulette and sit down. He then showed plaintiff to his seat in the rear of the ambulette, and made certain he fastened his seatbelt. This is in factual conflict with plaintiff’s testimony that there were no seat belts, and, variously, that he had either been standing or sitting. Rivera testified that after plaintiff was seated, he left the ambulette for 5 to 10 minutes as he reentered the building to retrieve his cell phone. This, too, is factually inconsistent with plaintiff’s testimony. When Rivera returned, plaintiff and the patient were in the same place as when he had left and he reinspected the hooks. Here, too, a factual inconsistency is presented.Rivera testified that he pulled out of the parking lot slowly and turned right onto a street that had a sharp uphill gradient, but within a few seconds heard the patient shout “[W]hat the f— is going on here?” Rivera “tapped” on the brakes as he looked in the rear view mirror. He observed that the wheelchair had turned over backwards, with its back on the floor and the patient’s feet in the air. Rivera found a flat location about 30 to 50 feet ahead and pulled off of the road. When he opened the door he observed plaintiff, who seemed to still be sitting, engaging in a “pulling” motion and trying to pick up the patient in the wheelchair. The patient was still on his back with his feet still in the air at this time; plaintiff gave no indication that he, himself, felt any pain. Plaintiff and Rivera together returned the wheelchair to an upright position. Rivera observed that two hooks in the front of the wheelchair had been undone, but had no idea how that could have occurred. Upon inquiry about whether he was hurt, the patient responded, “I think I hit myself on the head.” By contrast, plaintiff responded “no” when Rivera inquired whether he had been injured. Plaintiff, who had been frightened rather than angry, became angered in a phone conversation with Rivera’s dispatcher, and then related to Rivera that the dispatcher was trying to blame plaintiff for the accident. Plaintiff told Rivera that since “nobody got hurt,” he had not intended to report the incident but, angered, now declared, “I’m injured.” Rivera testified that he filled out an accident report immediately thereafter.Rivera denied having pulled out of the parking lot at a high speed before plaintiff had a chance to sit down, and, rather, claimed that he had shown the plaintiff to his seat and made sure that the aide fastened his seat belt. Rivera further averred that when he returned from retrieving his cell phone in the building he checked that plaintiff was seated and reminded him to fasten his seat belt, after which the door was firmly closed. Rivera claimed that he had pulled out of the parking lot slowly and heard a shout after he had gone only a short distance. Rivera averred that both the patient and plaintiff assured him that they were okay.These two sworn accounts present unresolved factual inconsistencies in many respects that raised triable issues as to how the accident occurred and preclude summary judgment against defendants. Here, whether plaintiff’s alleged injuries were caused by Rivera’s driving, and whether he even suffered injuries as a consequence of the driver’s conduct, are contested issues requiring a trial.Plaintiff was not merely a passenger relatively immobilized in a vehicle’s rear seat; he had relative mobility in carrying out his responsibilities for a disabled third party, which requires further fact-finding, and potentially a credibility evaluation. The granting of summary relief with the existence of the above-noted factual issues could result in holding the driver liable without adequate proof of fault, and would be at the expense of fact-finding on a more complete record. Furthermore, the driver’s claimed absence from the vehicle during what may prove to be a consequential time period with respect to the wheelchair being secured, and even potential evidence pertaining to the structural soundness of the tie-downs attached to the wheelchair itself, which became undone without explanation, require further factual review and may also likely present triable issues of credibility. What transpired in the ambulette between plaintiff and the patient during the time Rivera left the vehicle and returned to the building to retrieve his cell phone is unknown. The record on appeal does not include either testimony or an affidavit by the patient, nor do we know if the patient will be a witness at trial.We disagree with the dissent’s statement that “defendants have failed to offer any explanation of the proximate cause of the accident.” It is plaintiff’s burden as the moving party for summary judgment to establish defendants’ negligence as a proximate cause of plaintiff’s injuries. Here, defendants adequately rebutted plaintiff’s claim of negligence on their part, and thus plaintiff has failed to establish defendants’ negligence and proximate cause. If a trier of fact finds defendants’ version of events to be credible, then no liability should be imposed on them.All concur except Sweeny, J.P. and Kahn, J. who dissent in a memorandum by Kahn, J. as follows:
