Appeals List released on: June 28, 2022 By Manzanet-Daniels, J.P., Oing, González, Scarpulla, Higgitt, JJ. 350060/18. ANONYMOUS, plf-res, v. ANONYMOUS, def-app — Mantel McDonough Riso, LLP, New York (Allan D. Mantel of counsel), for appellant — Krauss Shaknes Tallentire & Messeri LLP, New York (Caroline Krauss of counsel), for respondent — Order, Supreme Court, New York County (Matthew F. Cooper, J.), entered on or about October 18, 2021, which, to the extent appealed from, granted defendant wife’s motion for pendente lite maintenance, child support and interim attorneys’ and expert fees in amounts less than those sought and granted plaintiff husband’s motion to declare the “hiatus period” as set forth in the parties’ prenuptial agreement terminated, unanimously affirmed, with costs. Appeal from decision entered June 30, 2021, unanimously dismissed, without costs, as taken from a nonappealable paper. Defendant failed to establish that the pendente lite child support award was insufficient (see e.g. Spitzer v. Spitzer, 167 AD3d 417 [1st Dept 2018]). She argued that the award was inadequate in light of plaintiff’s wealth, but not that it was insufficient to meet the child’s actual needs or to support a lifestyle appropriate for the child (see DeNiro v. DeNiro, 185 AD3d 465 [1st Dept 2020]; Sykes v. Sykes, 43 Misc 3d 1220[A], 2014 NY Slip Op 50731[U], *22 [Sup Ct, NY County 2014]). The award of interim spousal support is appropriate under the parties’ prenuptial agreement, which requires plaintiff to pay all “ordinary and necessary expenses (consistent with past experience)” during the defined hiatus period. While the amount awarded by the court was less than plaintiff had been paying voluntarily, defendant failed to substantiate her contention that that amount was less than was “ordinary and necessary.” The court properly considered evidence that some of defendant’s claimed expenses were out of the ordinary (Hearst v. Hearst, 29 AD3d 395 [1st Dept 2006]). The fact that plaintiff had reduced the amounts of his voluntary payments after two years does not alter our conclusion that the amount awarded was appropriate (id.). The court properly concluded that the hiatus period had terminated, as the express terms of the prenuptial agreement provided that the hiatus period was not to exceed nine months, and plaintiff represented that he no longer agreed to continue it. Defendant’s argument that the hiatus period could be terminated only after equitable distribution had been calculated is without merit. The court providently exercised its discretion in setting counsel and expert fees. While we recognize that plaintiff’s income substantially exceeds defendant’s, defendant is not without assets, and she will gain significantly more by the sale of the marital residence and the commencement of her permanent maintenance. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ. 654275/19. JOEL BELTRAN ET AL., plf-app, v. COMMERCIAL BUILDING MAINTENANCE CORP., def, CARLTON CAMPBELL, def-res — The Law Office of Justin A. Zeller, P.C., New York (John M. Gurrieri of counsel), for appellants — Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about August 10, 2021, which, to the extent appealed from as limited by the briefs, denied plaintiffs’ motion for a default judgment against defendant Carlton Campbell and, on the court’s own motion, dismissed the complaint as against him, unanimously affirmed, without costs. The motion court correctly denied plaintiffs’ renewed motion for a default judgment against defendant Carlton Campbell, as plaintiffs failed, as they had failed on the prior motion, to submit a verified complaint or an affidavit by a person with knowledge of the facts constituting the claim (see Beltre v. Babu, 32 AD3d 722 [1st Dept 2006]; Utak v. Commerce Bank Inc., 88 AD3d 522, 523 [1st Dept 2011]). Since plaintiffs’ counsel’s firm was also a party to this action, the submission of an affirmation, instead of an affidavit, by counsel was improper (LaRusso v. Katz, 30 AD3d 240, 243 [1st Dept 2006]; John Harris P.C. v. Krauss, 87 AD3d 469 [1st Dept 2011]). To the extent plaintiffs object to the motion court’s sua sponte dismissal of the action, their proper course was to move that court to vacate the order or to seek leave to appeal from this Court, since there is no appeal as of right from a sua sponte order (Meng v. Allen, 117 AD3d 621 [1st Dept 2014]). In light of counsel’s repeated failure to properly prosecute this action, which would largely benefit his law firm, this Court will not deem the notice of appeal a motion for leave to appeal in the interest of justice (see New Globaltex Co., Ltd. v. Zhe Lin, 173 AD3d 434 [1st Dept 2019]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Manzanet-Daniels, J.P., Oing, González, Scarpulla, Higgitt, JJ. 650340/20. BUMBLE TRADING INC., plf-res, v. L&L NY 5, INC. DOING BUSINESS AS MISS PARADIS, def-app — Fox Rothschild LLP, New York (Alexandra L. Sobol of counsel), for appellant — Hughes Hubbard & Reed LLP, New York (Fara Tabatabai of counsel), for respondent — Order, Supreme Court, New York County (Arlene Bluth, J.), entered October 26, 2021, which, to the extent appealed from as limited by the briefs, granted plaintiff’s motion for summary judgment, unanimously affirmed, with costs. In March 2019, plaintiff identified a space located at 259 Mulberry Street in Manhattan where it intended to open a wine bar. On April 8, 2019, plaintiff signed a proposed sublease with defendant, the tenant of the premises, and wired a security deposit and first month’s rent. Defendant countersigned the proposed sublease on April 19, 2019. The proposed sublease incorporated provisions of the main lease, which provided that the sublease required the prior written approval of the landlord and that the failure to approve or disapprove within 30 days would be deemed an approval. Prior to the expiration of the 30-day period, the landlord informed defendant that it was unable to approve the proposed sublease because the request for approval did not include all the necessary information. Defendant did not provide the requisite information within the 30-day deadline. On June 4, 2019, plaintiff notified defendant that it was exercising its right to terminate the proposed sublease. On October 16, 2019, nearly six months after the deadline, defendant sent plaintiff a letter announcing the commencement of the sublease. The court properly rejected defendant’s contention that plaintiff unjustifiably terminated the lease and that the landlord was not required to approve the proposed sublease within 30 days. To the extent the lease and proposed sublease were ambiguous as to whether the 30-day deadline period applied when the landlord requested more information, the extrinsic evidence, including the parties’ emails, establish that the parties intended that the landlord approve or disapprove the proposed sublease within 30 days. That evidence resolved any ambiguity as to the lease and proposed sublease’s meaning (see GEM Holdco, LLC v. Changing World Tech., L.P., 127 AD3d 598, 598-599 [1st Dept 2015]; Jamie Towers Hous. Co., 294 AD2d 268, 271 [1st Dept 2002]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ. 154242/21. ANGELO CHAN ET AL., plf-res, v. 907 CORPORATION ET AL., def-app — Belkin • Burden • Goldman, LLP, New York (Magda L. Cruz of counsel), for 907 Corporation and the Board of Directors of 907 Corporation, appellants — Wasserman Grubin & Rogers, LLP, New York (Andrew K. Lipetz of counsel), for Abby Crisses and Andrew Crisses, appellants — Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Michael E. Fleiss of counsel), for respondents — Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about December 15, 2021, which granted plaintiffs’ motion for a preliminary injunction directing defendants 907 Corporation (the Co-op) and the Board of Directors of 907 Corporation (Board) to lift their directive that plaintiffs shut off the plumbing waste drain for their apartment, unanimously reversed, on the law, without costs, and the motion denied. Plaintiffs failed to demonstrate a likelihood of success on the merits of their breach of contract and breach of fiduciary duty claims, irreparable injury in the absence of injunctive relief, or a balance of equities in their favor (see CPLR 6301; Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]). As to the breach of contract claims, the alteration agreement empowers the Co-op and its architect to direct the replacement of pipes, does not expressly limit where the Co-op can direct pipes to be placed, and allows the Co-op to suspend work for plaintiff’s failure to comply with the Co-op’s directives. Similarly, the proprietary lease gives the Co-op discretion as to how to maintain the building and allows for the “failure, interruption or curtailment” of hot and cold water “due to…alterations or repairs desirable or necessary to be made.” Thus, shutting off the waste water line does not breach the Co-op’s duty to provide waste water drainage. Moreover, plaintiffs concede that they still have one functioning bathroom, indicating that they have water and waste water service. As to the breach of fiduciary duty claims, the letters from the Co-op’s architect demonstrate that the decision to reroute the waste line was made in good faith to avoid further leaks in the century-old pipes and joints (see Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 NY2d 530, 537-538 [1990]). Plaintiffs did not proffer “nonconclusory assertions of malevolent conduct” or evidence that they were “single[d] out … for harmful treatment,” and only speculated that the Board favored defendants Abby and Andrew Crisses over them (Levandusky, 75 NY2d at 540, 542; see also Cohen v. Kings Point Tenant Corp., 126 AD3d 843, 845 [2d Dept 2015]). Further, should plaintiffs prevail, the monetary damages they seek on their claims for deprivation of quiet enjoyment would provide an adequate remedy (see Harris v. Patients Med., P.C., 169 AD3d 433, 434-435 [1st Dept 2019]; Goldstone v. Gracie Terrace Apt. Corp., 110 AD3d 101, 105 [1st Dept 2013]). The balance of the equities does not weigh in plaintiffs’ favor. Although they proposed an alternative method of replacing the pipe, they failed to respond to the Crisseses’ assertions that this method would entail substantial work or that the pipe is not actually running above their dropped bathroom ceiling (see Goldstone, 110 AD3d at 106). 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 Manzanet-Daniels, J.P., Oing, González, Scarpulla, Higgitt, JJ. 157373/18. SHANE CRANDALL, plf-app, v. EQUINOX HOLDINGS, INC. DOING BUSINESS AS EQUINOX FITNESS CLUB DOING BUSINESS AS EQUINOX GREENWICH AVENUE, INC., ET AL., def-res — Held & Hines, LLP, Brooklyn (Marc Held of counsel), for appellant — LaRocca Hornik Rosen & Greenberg LLP, New York (David N. Kittredge of counsel), for respondents — Orders, Supreme Court, New York County (Arlene P. Bluth, J.), entered April 5, 2021 and April 26, 2021, which denied plaintiff’s motion to compel discovery, determined that six years was a sufficient discovery lookback period, and denied plaintiff’s request for the legal file from a 2007 lawsuit against defendant Equinox Holdings, Inc. d/b/a Equinox Fitness Club d/b/a Equinox, unanimously affirmed, without costs. The motion court providently exercised its discretion in denying as overbroad plaintiff’s motion to compel the disclosure of certain records related to all Equinox gyms in New York City (see Forman v. Henkin, 30 NY3d 656, 661 [2018]). In contrast to the “unified public housing complex” that was the site of the criminal activity in Jacqueline S. v. City of New York (81 NY2d 288, 295 [1993]), on which plaintiff relies, Equinox gyms are not party of a unified complex but are single facilities scattered throughout the city’s five boroughs. The court providently found that a six-year lookback period was appropriate and denied plaintiff’s motion for disclosure of the legal file from another litigation against Equinox on the grounds that plaintiff appeared to have obtained sufficient material already from that lawsuit and that the events were remote in time. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ. 2021-02690. IN THE MATTER OF SARA D., pet-app, A PERSON UNDER 21 YEARS OF AGE, ETC., v. LASSINA D. ET AL., res — The Door Legal Services Center, New York (Hannah Weichbrodt of counsel), for appellant — Order, Family Court, Bronx County (Aija M. Tingling, J.), entered on or about June 22, 2021, which to the extent appealed from as limited by the briefs, upon granting petitioner’s motion for appointment of respondent Seydou D. as her guardian and for an order making special findings for purposes of her application for special immigrant juvenile status (SIJS), denied the application to the extent it sought a special finding that reunification of petitioner with respondent father Lassina D. is not viable, unanimously reversed, on the law, without costs, the application granted to the extent appealed and the special findings order amended to further find that reunification with the father is not viable due to neglect. Petitioner is a 16-year-old, unmarried minor, who was born in the Ivory Coast and has been living with her cousin in the United States since 2019. We agree with Family Court’s special findings of fact that support petitioner’s application for SIJS relief pursuant to 8 USC §1101 (a) (27) (J), including that reunification of petitioner with one of her parents, her mother, is not viable because her mother is deceased (see Matter of Carlos A.M. v. Maria T.M., 141 AD3d 526, 528 [2d Dept 2016]). However, Family Court erred in not making any findings of fact as to reunification with petitioner’s father. Exercising our power to review the record and to make our own factual determinations (see Matter of Luis R. v. Maria Elena G., 120 AD3d 581, 581-582 [2d Dept 2014]), we find that the record supports a finding that reunification of petitioner with her father, respondent Lassina D., is not viable due to neglect within the meaning of Family Court Act §1012 (f)(i) (A)–(B). Petitioner’s testimony shows that the father did not meet the minimal degree of care since he did not provide for her medical and emotional needs while she was in the Ivory Coast, and has not contributed to her financial support or maintained regular contact with her since she has been in the United States (see Matter of Khan v. Shahida Z., 184 AD3d 506, 506-507 [1st Dept 2020]; Matter of LeVonn G. [Cecelia G.], 20 AD3d 530 [2d Dept 2005]). Her uncontroverted testimony also supports a finding of neglect based on the father’s excessive use of corporal punishment (see Matter of Aniya C. [Michelle C.], 99 AD3d 478, 479 [1st Dept 2012]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Manzanet-Daniels, J.P., Oing, González, Scarpulla, Higgitt, JJ. 653432/18. IRA GERZOG, plf-res, v. STEVEN GOLDFARB ET AL., def-app, SONIA HERNIA ET AL., def — Golenbock Eiseman Assor Bell & Peskoe LLP, New York (Michael M. Munoz of counsel), for Steven Goldfarb, appellant — Furman Kornfeld & Brennan LLP, New York (Christopher D. Skoczen of counsel), for Harvey Midgen, appellant — Schlam Stone & Dolan LLP, New York (Joshua Wurtzel of counsel), for respondent — Order, Supreme Court, New York County (Joel M. Cohen, J.), entered December 16, 2021, which, to the extent appealed from, denied defendants Steven Goldfarb’s and Harvey Migden’s motions for summary judgment dismissing the second amended consolidated complaint against them, unanimously modified, on the law, to grant Goldfarb’s motion as to the fraud claim, and otherwise affirmed, with costs against Goldfarb and Migden to be paid to plaintiff. Plaintiff was an attorney at the law firm of nominal defendant Goldfarb & Gerzog. He claims that he and defendant Goldfarb were partners at the firm and that he was entitled to a one-third share of the firm’s profits. Defendant Migden was the firm’s accountant. Issues of fact exist as to plaintiff’s partnership status and entitlement to a share of the firm’s profits (see generally M.I.F. Sec. Co. v. Stamm & Co., 94 AD2d 211, 214 [1st Dept 1983], affd in part 60 NY2d 936 [1983]). Evidence in the record — including plaintiff’s testimony, the firm’s filing of partnership tax returns and K-1s, and its representations to others — supports plaintiff’s claim that the firm was a partnership and that he was entitled to a percentage of the firm profits (see Rosen v. Efros, 258 AD2d 333, 333 [1st Dept 1999]; see also 26 CFR §301.7701-2 [a]; Peterson v. Neville, 58 AD3d 489, 489 [1st Dept 2009]). Although the K-1s and representations are not dispositive, they are still relevant (see Rakosi v. Sidney Rubell Co., LLC, 155 AD3d 564, 565 [1st Dept 2017]). The fact that the K-1s refer to plaintiff as a “limited partner” is not determinative of whether he had an equity stake, especially given that they also refer to Goldfarb as a limited partner. The evidence also shows that plaintiff may have made at least one capital contribution in the form of his share of the proceeds of two case settlements, and that, while Goldfarb managed the firm’s finances and marketing, plaintiff managed the firm’s caseload and daily operations. Although plaintiff never paid firm debts or expenses out-of-pocket, he testified that he was nonetheless responsible for them because the profits from which he was paid were net of costs. The evidence showing that plaintiff’s profit percentage varied by year does not defeat plaintiff’s claims. The claims are based on allegations of improper suppression of the total amount of firm profits, which would affect the amount distributed to plaintiff regardless of the percentage applied. As to Migden, plaintiff also raises an issue of fact as to the applicability of the exception to the general rule that accountants do not owe clients fiduciary duties. That exception applies “where the allegations include knowledge and concealment of illegal acts and diversions of funds and failure to withdraw in the face of a conflict of interest” (Nate B. & Frances Spingold Found. v. Wallin, Simon, Black & Co., 184 AD2d 464, 465-466 [1st Dept 1992]). Plaintiff has submitted evidence from which the factfinder could conclude that Migden falsely classified Goldfarb’s personal expenses as case preparation expenses on income tax returns, with knowledge that deducting these expenses would reduce the profits available to be paid to plaintiff and that classifying them in this way would conceal the wrongdoing. The fact that plaintiff had access to his K-1s and the firm’s tax returns is immaterial because his claim is that the true nature of Goldfarb’s personal expenses was not obvious on the face of those documents. Plaintiff also submitted evidence indicating that Migden was responsible for categorizing expenses as deductions and did not simply rely on Goldfarb’s assessment. The parties also offered conflicting expert opinions regarding whether an accountant’s duties run to all partners or only to the partner in charge of tax matters. However, whether Migden owed a duty to plaintiff personally is irrelevant to the accounting malpractice claim, which was asserted derivatively on behalf of the firm. Partial dismissal of the accounting malpractice claim on statute of limitations grounds (see CPLR 214 [6]) is precluded by issues of fact as to whether Migden is equitably estopped from asserting the defense because his alleged concealment of the misconduct induced plaintiff to refrain from filing a timely action (see Simcuski v. Saeli, 44 NY2d 442, 448-449 [1978]; Langston v. MFM Contr. Corp., 172 AD3d 583, 584 [1st Dept 2019]), whether the statute of limitations was tolled because Migden was in a fiduciary relationship with the firm (see Robinson v. Day, 103 AD3d 584, 586 [1st Dept 2013]), and whether it was tolled under the continuous representation doctrine (see Booth v. Kriegel, 36 AD3d 312, 314 [1st Dept 2006]). Although repetition of the same mistake on successive tax returns does not constitute continuous representation, the doctrine may apply where there is repeated intentional disregard of professional standards with respect to the same type of expense (see id. at 315; Ackerman v. Price Waterhouse, 252 AD2d 179, 205 [1st Dept 1998]). The fraud claim against Goldfarb should be dismissed. Plaintiff claims that Goldfarb repeatedly falsely represented to him that his annual compensation exceeded his one-third share of the firm’s profits. Even if that were true, plaintiff could not have justifiably relied on this misrepresentation because it was clear on the face of his K-1s that his income never exceeded one-third of the profits, except in 2012, even without accounting for the allegedly false expenses (see Sharma v. Walia, 201 AD3d 609, 609-610 [1st Dept 2022]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Manzanet-Daniels, J.P., Oing, González, Scarpulla, Higgitt, JJ. 150803/21. IN THE MATTER OF SHANI JETER, pet, v. SHEILA POOLE, AS COMMISSIONER OF THE NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, ET AL., res; THE BRONX DEFENDERS; BROOKLYN DEFENDER SERVICES; CENTER FOR FAMILY REPRESENTATION; CHILDREN’S DEFENSE FUND-NEW YORK; CHILDREN’S LAW CENTER; EMPIRE JUSTICE CENTER; FAMILY DEFENSE PRACTICUM, CUNY SCHOOL OF LAW; FAMILY LAW PRACTICE CLINIC, CUNY SCHOOL OF LAW, JMAC FOR FAMILIES; JUSTCAUSE; LEGAL SERVICES NYC; LEGAL SERVICES OF THE HUDSON VALLEY; MONROE COUNTY PUBLIC DEFENDER’S OFFICE; NEIGHBORHOOD DEFENDER SERVICE OF HARLEM; NEW YORK UNIVERSITY SCHOOL OF LAW FAMILY DEFENSE CLINIC; PARENT LEGISLATIVE ACTION NETWORK; RISE; SAFEHORIZON; SANCTUARY FOR FAMILIES; ST. JOHN’S UNIVERSITY SCHOOL OF LAW CHILD ADVOCACY CLINIC; THE LEGAL AID SOCIETY; THE LEGAL AID SOCIETY OF NASSAU COUNTY; URBAN JUSTICE CENTER; VOICES OF WOMEN AND WOMEN’S PRISON ASSOCIATION. AMICI CURIAE — Lansner & Kubitschek, New York (Carolyn A. Kubitschek of counsel), for petitioner — Letitia James, Attorney General, New York (Elizabeth A. Brody of counsel), for Sheila Poole, respondent — Sylvia O. Hinds-Radix, Corporation Counsel, New York (Rebecca L. Visgaitis of counsel), for Administration for Children’s Services, respondent — Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Erin Morgan and Audra J. Soloway of counsel), for amici curiae — Determination of respondent New York State Office of Children and Family Services (OCFS), dated September 22, 2020, which, after a hearing, denied petitioner’s request to amend and to seal an indicated report finding maltreatment of her adopted daughter, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Margaret A. Chan, J.], entered April 19, 2021) dismissed, without costs. The determination is supported by substantial evidence in the record (CPLR 7803[4]; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 179-182 [1978]). The investigative notes of respondent New York City Administration for Children’s Services (ACS) provide sufficient evidence that petitioner struck the subject child with an extension cord, given the child’s consistent story as recounted to a teacher, police officer, and ACS on several occasions over the span of a week, and the observation by multiple people of the child’s injuries (see Matter of Solvin M. v. New York State Off. of Children & Family Servs., 181 AD3d 412, 413 [1st Dept 2020]; Social Services Law §§371[4-a][i][B], 412[2][a]; 18 NYCRR 432.1[b][1]). As this Court held in Matter of R.B. v. New York State Off. of Children & Family Servs., “[t]he adjournment in contemplation of dismissal in Family Court, [ ] does not ‘create a presumption that there is a lack of a fair preponderance of the evidence to prove that a child has been abused or maltreated’” (199 AD3d 429, 430 [1st Dept 2020], quoting 18 NYCRR 434.10[f]). It was also rational to conclude that the indicated report is “relevant and reasonably related” to childcare employment, given the nature of the allegations here (Social Services Law §422[8][a][ii]). Contrary to petitioner’s contention, OCFS properly relied upon the ACS intake and progress notes (see Matter of Rosa v. New York City Hous. Auth., Straus Houses, 160 AD3d 499, 500 [1st Dept 2018] ["It is well-settled that hearsay is admissible in administrative proceedings, that it may be the basis for an administrative determination, and --- if sufficiently relevant and probative --- may constitute substantial evidence alone"]). In addition, “OCFS was not required to credit petitioner’s version of events’” (Matter of Rosengarten, 202 AD3d at 641, quoting Matter of Velez v. New York State Off. of Children, 157 AD3d 575, 575-576 [1st Dept 2018]). Nor did the exclusion from the hearing record of an unsigned, undated and unnotarized note purportedly written by the child to the Family Court in the related abuse or neglect proceeding, in which she appeared to retract the allegation of abuse, violate due process. “OCFS was not required to credit the child’s recantation, since it is accepted that such a reaction is common among abused children” (Matter of R.B. v. New York State Off. of Children & Family Servs., 199 AD3d 429, 430 [1st Dept 2021] [internal quotation marks omitted]). Petitioner’s constitutional right to due process was not violated by the failure to assign her counsel. In administrative proceedings before OCFS, the individual need only be “provided with an adequate opportunity to obtain legal representation” (Matter of Gell v. Carrion, 81 AD3d 953, 954 [2d Dept 2011] [internal quotation marks omitted]). The record shows that she was advised of her rights several months before the hearing, and she concedes that her husband, in seeking to amend the same indicated report as against him, obtained representation. Further, while these proceedings may impact petitioner’s employment options (see Social Service Law §424-a[1][a][i]-[ii], [2][a]; Matter of Lee TT. v. Dowling, 87 NY2d 699, 710 [1996]), they do not implicate “the liberty of the child” or his or her “care or control” (Matter of Ella B., 30 NY2d 352, 356-357 [1972]). Contrary to petitioner’s contention, the change in the Social Services Law does not impact her case, as the fair hearing was held on August 27, 2020 and the agency decision was rendered on September 22, 2020 (see Social Services Law §422[8][b][ii]). A statute “is presumed to apply only prospectively” (Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, 35 NY3d 335, 370 [2020]), and will not be given retroactive effect “unless the language expressly or by necessary implication requires it” (Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584 [1998]). The statutory amendment here, which passed in 2020, specifies that it “shall take effect January 1, 2022,” well after petitioner’s fair hearing before the agency (L 2020, ch 56, part R, §§6, 11), and the stated legislative purpose of the amendment does not mandate a different result. (id. at 589). We have considered petitioner’s remaining contentions and find them unavailing. M-1881 – In the Matter of Shani Jeter v. Sheila Poole, etc., et al. Motion for leave to file a second supplemental appendix, denied. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ. 154653/21. IN THE MATTER OF PATRICK J. LYNCH ETC., ET AL., pet-app, v. NEW YORK CITY CIVILIAN COMPLAINT REVIEW BOARD ET AL., res-res; THE NEW YORK CIVIL LIBERTIES UNION FOUNDATION AND THE AMERICAN CIVIL LIBERTIES UNION, WOMEN’S RIGHTS PROJECT, AMICI CURIAE — Golenbock Eiseman Assor Bell & Peskoe LLP, New York (Matthew C. Daly of counsel), for appellants — Sylvia O. Hinds-Radix, Corporation Counsel, New York (Kevin Osowski of counsel), for respondents — Guadalupe Victoria Aguirre and Christopher Dunn, New York, for the New York Civil Liberties Union Foundation, amicus curiae — Sandra S. Park, New York, for the American Civil Liberties Union, Women’s Rights Project, amicus curiae — Judgment, Supreme Court, New York County (Laurence Love, J.), entered on or about November 9, 2021, to the extent appealed from as limited by the briefs, denying the petition brought pursuant to CPLR article 78 to the extent it sought declarations that changes to the rules of the Civilian Complaint Review Board (CCRB), approved by vote on February 10, 2021, were void under Public Officers Law §107, that the CCRB’s Statement of Basis and Purpose for the rules was defective, and that the CCRB’s definition of “abuse of authority” was invalid; and to the extent it sought an award of costs and attorneys’ fees under Public Officers Law §107(2), unanimously affirmed, without costs. In a prior proceeding, this Court determined that a resolution from the CCRB, announcing that it would begin investigating allegations of sexual misconduct by civilians against police officers, was a nullity because the CCRB did not follow the public vetting processes required by the City Administrative Procedure Act (CAPA) for adopting new rules (Matter of Lynch v. New York City Civilian Complaint Review Bd., 183 AD3d 512, 518 [1st Dept 2020], lv denied 36 NY3d 901 [2020]). Following 0ur order, the Chair of the CCRB issued a statement that the CCRB was “committed to pursuing the rulemaking process expeditiously” so that an independent entity could review NYPD sexual misconduct. The CCRB’s General Counsel drafted a set of proposed revisions to the CCRB’s rules and a statement of purpose, which he shared with the members of the CCRB. On July 1, 2020, the General Counsel advised the CCRB’s members on the process for revising the CCRB’s rules after our decision. The CCRB’s members voted to authorize the rulemaking process but did not discuss the substance of the revised rules. On December 1, 2020, the CCRB issued a notice of public hearing and opportunity to comment. Among the proposed changes to the CCRB’s rules was a definition of “abuse of authority.” This term was defined as “misusing police powers,” including certain specified conduct (see Rules of City of NY Civilian Complaint Review Bd [38-A RCNY] §1-01). As relevant here, the specified conduct included “intentionally untruthful testimony and written statements made against members of the public in the performance of official police functions, and sexual misconduct.” Sexual misconduct was further defined elsewhere in the revised rules (see id.). The CCRB held a public hearing (by videoconference) on January 13, 2021. After responding to all questions and comments, the CCRB members voted to enter executive session. The only planned discussion of the rulemaking, which lasted less than 10 minutes, was the General Counsel’s legal advice. Comments about the substance of the revised rules were not invited. Although a few brief comments were made, these did not address particular comments or text of the rules or propose any changes. One CCRB member expressed some concern about the revised rules but declined to specify the nature of that concern during an executive session. The CCRB did not discuss the proposed rules in any other executive session. On February 10, 2021, the CCRB publicly voted to approve the revised rules in their entirety. On February 24, 2021, the CCRB issued a notice of adoption. The statement of basis and purpose summarized the revised rules and indicated that they would “incorporate the Charter changes, comply with the court ruling, modify the Board meeting schedule, and clarify certain language to make the rules more understandable.” Supreme Court properly denied petitioners’ request for a declaration that the CCRB’s enactment of the revised rules was invalid based upon an allegedly defective statement of basis and purpose. While the statement of basis and purpose for the revised rules was succinct, it satisfied the requirements set forth in New York City Charter §1043(d)(1)(iv) by stating the purpose of the rules, and by providing a clear explanation of those rules and the requirements they would impose. New York City Charter §1043(d)(1)(iv) does not require that the agency fully explain its rationale for adopting a rule, nor is there any requirement that the agency articulate its rationale at the time of promulgation as long as the record reveals that the rule had a rational basis (see Matter of Tri-City, LLC v. New York City Taxi & Limousine Commn., 189 AD3d 652, 652-653 [1st Dept 2020]). As to the content of the revisions, petitioners have “failed to meet their heavy burden” of showing the revised rules to be “so lacking in reason that [they were] essentially arbitrary” (id. at 652). Given the CCRB’s expertise in studying and investigating police disciplinary matters, we defer to its interpretation of the term “abuse of authority,” unless that definition is irrational, unreasonable, or inconsistent with the governing statute (see Matter of Toys “R” Us v. Silva, 89 NY2d 411, 418-419 [1996]). The CCRB’s interpretation of that term—defining “abuse of authority” as “misusing police power,” which encompasses both sexual misconduct by officers against civilians and the making of false statements against civilians—is consistent with the plain language of the governing statute (see New York City Charter §440[c][1]). Moreover, the record before the CCRB provided ample basis to conclude that sexual misconduct against civilians and making false statements against civilians both fall within the meaning of the term “abuse of authority.” Contrary to petitioners’ contention, the governing statute does not prohibit the CCRB from investigating matters that may touch upon criminal conduct (see New York City Charter §440[f]). While the CCRB had a prior practice of referring such matters to the Police Department’s Internal Affairs Bureau, that prior practice does not render the CCRB’s current interpretation arbitrary, especially where the CCRB has set forth a rational basis for changing its approach (see Matter of Juarez v. New York State Off. of Victim Servs., 36 NY3d 485, 496 [2021]; Matter of Mount Bldrs., LLC v. Perlmutter, 200 AD3d 616, 616 [1st Dept 2021] lv denied 38 NY3d 906 [2022]; Matter of Punnett v. Evans, 26 AD2d 396, 398 [1st Dept 1966]). Although petitioners established that the CCRB violated the Open Meetings Law (see Public Officers Law §103), courts are vested with discretion to grant remedial relief, and not every violation of the Open Meetings Law requires sanctions (see Public Officers Law §107; Matter of New York Univ. v. Whalen, 46 NY2d 734, 735 [1978]). Here, the court providently exercised its discretion in denying remedial relief. The Open Meetings Law prohibits public bodies from conducting business in executive session, outside of public view (see Public Officers Law §103; Matter of Lancaster v. Incorporated Vil. of Freeport, 22 NY3d 30, 40 [2013]). Its purpose is to prevent governments from deciding, in private, matters which should be subject to debate and decided in public (see Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 NY2d 668, 686 [1996]; Public Officers Law §100). If a court finds that an agency violated the Open Meetings Law, it may, “in its discretion, [and] upon good cause shown,” void the agency’s action (Public Officers Law §107[1]). Courts also have the discretion to award costs and attorney’s fees (id. at [2]). A showing of “good cause” generally requires intentional wrongdoing or, at least, a showing that petitioners were aggrieved or prejudiced by the violation (see Matter of Fichera v. New York State Dept. of Envtl. Conservation, 159 AD3d 1493, 1498 [4th Dept 2018]; Matter of Chenkin v. New York City Council, 72 AD3d 548, 549 [1st Dept 2010], lv denied 16 NY3d 703 [2011]; Matter of Specht v. Town of Cornwall, 13 AD3d 380, 381 [2d Dept 2004]). Petitioners have not demonstrated that the CCRB intentionally excluded them from its meetings (see Fichera, 159 AD3d at 1498; Chenkin, 72 AD3d at 549). Neither have petitioners demonstrated that they were aggrieved or prejudiced by the CCRB’s executive sessions, at which it did not discuss the substance of the revised rules (see Fichera, 159 AD3d at 1498; Specht, 13 AD3d at 381). Therefore, petitioners have not established good cause to void the CCRB’s actions (see Whalen, 46 NY2d at 735). We have considered petitioners’ remaining arguments and find them unavailing. M-02131 — Matter of Lynch v. New York City Civilian Complaint Review Bd. Motion by The American Civil Liberties Union, Women’s Rights Project, and the New York Civil Liberties Union Foundation, to file an amicus curiae brief, granted. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Manzanet-Daniels, J.P., Oing, González, Scarpulla, Higgitt, JJ. 102117/12. MARBRU ASSOCIATES, ET AL., plf-app, v. WILLIAM J. WHITE, ET AL., def-res — Kaufman Friedman Plotnicki & Grun, LLP, New York (Howard Grun of counsel), and Law Office of Frank A. Scanga, New York (Frank A. Scanga of counsel), for appellants — Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about June 23, 2021, which denied plaintiffs’ motion to strike defendants’ second amended answer and preclude defendants from offering evidence at trial and for a money judgment and a judgment of possession for unpaid use and occupancy, and stayed the action pending plaintiff’s compliance with the Administrative Order 160/21 of the Chief Administrative Judge of the Courts, unanimously modified, on the facts and in the exercise of discretion, to grant plaintiffs’ motion to the extent of precluding defendants from relying at trial on any information sought in plaintiff’s discovery demands to which defendants have not meaningfully responded unless defendants provide the information in verified form within 30 days after service of this order with notice of entry, and to vacate the stay of the action, and otherwise affirmed, without costs. In the exercise of our own discretion (see Maxim, Inc. v. Feifer, 161 AD3d 551, 554 [1st Dept 2018]), we find, contrary to the motion court, that defendants’ discovery abuses warrant sanctions under CPLR 3126. Defendants have engaged in a pattern of obstructive conduct since the commencement of this action in 2012, including noncompliance with multiple discovery orders issued between January 2017 and February 2020. The court acknowledged in those orders that defendants’ conduct was sanctionable, but afforded defendants further opportunities to comply. Defendants’ delay tactics are even more evident in light of their repeated obstructions of plaintiffs’ efforts to gain access to their apartment to make repairs to cure the violations. We cannot countenance any further such conduct. All unpaid use and occupancy due through March 2020 shall be paid, without exception, within 20 days of service of this order with notice of entry. All unpaid use and occupancy accruing from April 2020 through the date of service of this order with notice of entry must also be paid unless defendants move within 30 days and establish that the protections of the Tenant Safe Harbor Act (L 2020, ch 127) apply. A failure to comply with any of these directives will result in ejectment and an award of a judgment of possession to plaintiffs (see Park Terrace Gardens, Inc. v. Penkovsky, 100 AD3d 577 [1st Dept 2012]; Rose Assoc. v. Johnson, 247 AD2d 222, 223 [1st Dept 1998]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Renwick, J.P., Kapnick, Singh, González, Kennedy, JJ. 2019-00091. IN THE MATTER OF PAMELA S. ROTH (ADMITTED AS PAMELA SUSAN ROTH), AN ATTORNEY AND COUNSELOR-AT LAW: ATTORNEY GRIEVANCE COMMITTEE FOR THE FIRST JUDICIAL DEPARTMENT, pet, PAMELA S. ROTH, (OCA ATTY. REG. NO. 2422483), res — Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on June 26, 1991. Appearances: Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Remi E. Shea, Esq., of counsel), for petitioner. Thomas J. Foley, Esq., Foley Griffin, LLP, for respondent. PER CURIAM Respondent Pamela S. Roth was admitted to the practice of law in the State of New York by the Second Judicial Department on June 26, 1991, under the name Pamela Susan Roth. She was engaged in the practice of law within the First Judicial Department during certain of the events at issue. In January 2021, the Attorney Grievance Committee (AGC) served respondent with a notice and petition of amended and supplemental charges (35 charges) alleging professional misconduct stemming from her representation of seven clients. The AGC and respondent now jointly move pursuant to the Rules for Attorney Disciplinary Matters (22 NYCRR) §1240.8(a)(5) for discipline by consent and request the imposition of a two-year suspension, and for her successful completion of the New York City Bar Association’s Lawyer Assistance Program (LAP). The motion is supported by a joint affirmation containing a statement of facts, conditional admissions of professional misconduct, factors in aggravation, mitigation, and agreed upon discipline. The motion is also accompanied by respondent’s affidavit acknowledging her admission to the stipulated facts, her consent to the agreed upon discipline, which she has freely and voluntarily given, and her full awareness of the consequences of such consent (22 NYCRR 1240.8[a][5][i] and [iii]). In March 2017, client DT wrote to respondent requesting that she represent him in a personal injury matter. However, between April and August 2017, respondent failed to respond to DT’s letters about his case and to send a written retainer agreement. After DT complained to the AGC, respondent sent DT a retainer agreement in March 2018, which DT signed and returned. Respondent later commenced an action on DT’s behalf in October 2018 by filing a summons with notice. The defendant demanded a complaint in December 2018, which respondent did not serve until March 2021. By failing to communicate with DT, respondent violated Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.4(a)(4); and, by failing to timely serve DT’s complaint, she failed to act with reasonable diligence in violation of rule 1.3(a) and neglected a legal matter entrusted to her in violation of rule 1.3(b). On April 20, 2018, respondent wrote a $210 check from her operating account to the Kings County Clerk’s Office to purchase an index number in a case for client WR, which was dishonored. On that same date, respondent filed a summons with notice. The Clerk’s Office repeatedly notified respondent between May and August 2018 of the dishonored check. Although respondent represented to the Clerk’s Office that she would replace the dishonored check, she did not do so until October 2018, when the Clerk’s Office complained to the AGC. Further, respondent failed to serve the summons with notice. By failing to promptly replace the dishonored check and failing to timely serve the summons with notice, respondent failed to act with reasonable diligence in violation of rule 1.3(a) and neglected a legal matter in violation of rule 1.3(b). Client ED retained respondent sometime in 2016 to represent him in three separate personal injury matters. Respondent commenced two of the actions in state court but failed to timely serve a summons with notice or to comply with the defendant’s demand for a complaint in each action. Respondent also informed ED that she filed suit in federal court regarding the third personal injury matter. However, respondent did not file suit in federal court and waited until 2019 to inform ED that she did not file his claim because she did not believe that she could prove notice and liability. By failing to timely serve the summonses with notice and failing to serve the complaints, respondent failed to act with reasonable diligence in violation of rule 1.3(a) and neglected a legal matter entrusted to her in violation of rule 1.3(b). Further, respondent misrepresented the status of a legal matter to her client in violation of rules 1.4(a)(3) and 8.4(c). In December 2016, client AC retained respondent to represent him in a personal injury action. Respondent did not file a summons with notice on AC’s behalf until 2019, after the AGC contacted respondent with AC’s complaint to the AGC. By waiting approximately 2½ years to file a summons with notice, respondent neglected a legal matter entrusted to her in violation of rule 1.3(b). Client RD retained respondent in May 2016 to represent him in a personal injury action. In August 2017, respondent commenced the action on RD’s behalf by filing a summons with notice. Respondent did not respond to RD’s requests for paperwork and did not inform RD that she changed her address. Further, respondent took no action on RD’s case from August 2017 until March 2021, when she filed a complaint on his behalf. By failing to inform RD of her change of address and failing to provide paperwork requested by RD, respondent failed to keep a client reasonably informed about the status of the matter in violation of rule 1.4(a)(3) and failed to respond to reasonable requests for information in violation of rule 1.4(a)(4). Further, by filing a summons with notice in August 2017, and failing to take further action on RD’s case until the March 2021 filing of the complaint, respondent neglected a legal matter in violation of rule 1.3(b). In April 2014, client JC retained respondent to represent her in a personal injury matter. Respondent commenced the lawsuit the following year. The defendant moved for summary judgment in January 2018. Respondent failed to submit opposition papers or to appear for oral argument, notwithstanding several adjournments. The court subsequently dismissed JC’s action with prejudice. After the time to move to renew and reargue had expired, respondent filed such motion. Respondent was granted several adjournments to submit reply papers, but again failed to submit such papers or to appear for oral argument. The court marked her motion off the calendar without a decision or order. Respondent then filed a second motion to renew and reargue, which was substantially identical to the first motion.1 Respondent was granted two adjournments but still failed to submit reply/response papers. The court issued an order and decision on default, which granted the defendant’s motion insofar as directing respondent to pay $200 in costs and enjoined her from filing further motions in the matter without prior leave of the court. In December 2019, respondent moved by order to show cause for vacatur of the court’s order and to restore JC’s matter to the calendar. The court adjourned the matter and directed respondent to submit a reply to the defendant’s opposition seven days before the return date, which she failed to do.2 In failing to appropriately attend to court matters on behalf of JC, respondent neglected a legal matter entrusted to her in violation of rule 1.3(b). Further, by failing to timely move to reargue, respondent failed to act with reasonable diligence, in violation of rule 1.3(a). In November 2017, client KJ retained respondent to represent him in a section 1983 wrongful arrest action. In April 2018, respondent filed suit on KJ’s behalf in the U.S. District Court for the Southern District of New York, but the action was closed on April 13, 2018 because respondent did not file a complaint. In September 2018, respondent requested the case be reopened and a summons be issued as to the defendant. On October 1, 2018, the Clerk of the Court directed respondent to refile her request for a summons because of deficiencies in her first request, but she failed to do so. On March 19, 2019, the court ordered respondent to show cause why KJ’s case should not be dismissed pursuant to Federal Rules of Civil Procedure rule 4(m) and warned that failure to respond would result in dismissal of the action. Respondent did not respond, and the court dismissed the action on March 28, 2019. By letter of the same date, respondent requested that the action be restored to the active calendar and asserted that she intended to fully proceed with her client’s case and would “timely adhere to all court orders and scheduling orders issued by this Court on this case.” The court denied her request. In April 2019, respondent filed a second action, for the same matter, in the Southern District. The action was dismissed without prejudice in October 2019 after respondent failed to respond to the court’s two prior directives to file proof of service of the summons and complaint. In November 2019, respondent filed a third action, for the same matter, in the Southern District. Respondent subsequently failed to serve defendant with information required by the Southern District’s section 1983 case plan.3 In July 2020, defendant submitted a letter to the court requesting a pre-motion to dismiss conference. Respondent did not respond to defendant’s pre-motion letter notwithstanding the court’s individual rules requiring her to respond within three business days. On October 6, 2020, the court directed respondent to show cause why she should not be sanctioned for failure to comply with its individual rules. Respondent was also ordered to inform the court if she intended to amend the complaint and warned that this would be her last opportunity to do so in response to the defendant’s motion to dismiss. By October 8, 2020 letter, respondent asked the court not to sanction her, asserting that she intended to fully proceed with her client’s case and promised that she would “timely adhere to all court ordered and scheduling orders….” By October 13, 2020 letter, respondent informed the court that she would amend the complaint by October 29, 2020, but she failed to do so. The court then ordered respondent to appear for a November 19, 2020 hearing to show cause why she should not be sanctioned for failure to comply with its orders and failure to prosecute her client’s case. She was also directed to inform her client in advance of the hearing that further failures to comply with the court’s orders may result in dismissal of the case with prejudice. Respondent waited until the morning of the hearing, where both she and KJ appeared, to inform him. The court ordered respondent to file the amended complaint by November 20, 2020, which she did.4 In her representation of KJ, respondent violated rule 1.3(a) by failing to act with reasonable diligence; violated rule 1.3(b) by neglecting a legal matter entrusted to her; violated rule 1.4(a)(1)(iii) by failing to inform a client of a material development; and violated rule 1.4(a)(3) by failing to promptly inform a client about the status of his case. By continuing to disregard court orders after assuring the court in March 2019 and in October 2020, that she would “adhere to all court orders and scheduling orders,” respondent engaged in conduct prejudicial to the administration of justice, in violation of rule 8.4(d). Further, by engaging in a pattern of neglect over a period of years with multiple clients, respondent engaged in conduct that adversely reflects on her fitness as a lawyer, in violation of rule 8.4(h). In aggravation, the parties cite to respondent’s four prior Admonitions issued by the Second Department, which extended from 2010 through 2016 and included much of the same type of conduct as she committed herein. In 2010, respondent was admonished for failing to enter into a written retainer agreement with a client or to provide the client with a letter of engagement, failing to timely cooperate with the Second Department AGC, and providing the committee with inaccurate and misleading information. In 2013, respondent was admonished for failing to communicate with, and timely respond to requests for information and documents from a U.S. bankruptcy trustee regarding a debtor whom respondent represented in a personal injury matter. In 2014, respondent was admonished for failing to communicate with, and timely respond to requests for information and documents from the bankruptcy trustee, and for a lack of diligence in, and neglect of, the debtor’s personal injury matter. In 2016, respondent was admonished for lack of diligence and neglect in connection with a client’s personal injury matter, failing to communicate with the client, and failing to timely cooperate with the committee. Further, we note that the Second Department issued respondent an Advisement in 2003 for failing to communicate with a client; and a Letter of Caution in 2006 for neglecting a legal matter and for failing to communicate with a client. In mitigation, the parties cite to respondent’s substantial personal stress and adversity that occurred from 2005 to 2020. Respondent’s 18-year marriage ended in divorce and respondent relocated her practice to be closer to her home and to her son of whom she had custody following the divorce. Respondent also became her mother’s primary caregiver during this time. Respondent’s mother experienced a number of health and financial issues, including loss of sight in her left eye and dementia, before she passed away on September 21, 2020. On December 20, 2021, respondent signed a Mental Health Monitoring Agreement with LAP. The agreement requires respondent to, inter alia, obtain a comprehensive psychiatric evaluation, attend all recommended treatment sessions, execute HIPAA forms permitting the flow of information between mental health care providers and LAP, contact her monitor on a weekly basis, and meet with the monitor once a month. The parties attest that a two-year suspension along with successful completion of LAP is the appropriate sanction for respondent’s “long-term pattern of neglect beginning in 2014 and continuing through 2020″ where she, among other things, neglected seven client matters, failed to communicate with clients, failed to act with reasonable diligence, misrepresented the status of a case to a client and had a prior disciplinary history. This Court’s precedent in disciplining attorneys who exhibited a pattern of neglect towards client matters and who made misrepresentations to clients has generally ranged from a two- to four- year suspension, depending on the magnitude of the misconduct and the factors in mitigation and aggravation (see Matter of Joffe, 158 AD3d 11 [1st Dept 2018] [two-year suspension for, inter alia, neglect of two immigration matters, false statements, submission of falsified documents to AGC, lack of sincere remorse, and three prior Admonitions, one of which was for neglect]; Matter of Samuely, 80 AD3d 163 [1st Dept 2010] [two-year suspension for, inter alia, neglect of four immigration matters, repeated misrepresentations to the affected clients to conceal such neglect, submission of falsified document to Virginia's DMV, prior Admonition, treatment for anxiety]; Matter of Segal, 190 AD2d 295 [1st Dept 1993] [two-year suspension for, inter alia, neglect of nine matters, four of which were criminal appeals, prior Admonition for neglect, and, in mitigation, attorney's obsessive compulsive disorder which reportedly prevented him from acknowledging errors]). The parties acknowledge that lengthier suspensions of three and four years have been imposed for arguably comparable misconduct (see e.g., Matter of Topal, 77 AD3d 152 [1st Dept 2010] [four-year suspension for, inter alia, neglect of five personal injury matters over 10-year period and lying to clients to conceal such misconduct]; Matter of Kreitzer, 229 AD2d 188 [1st Dept 1997] [three-year suspension for neglect of 12 matters and misrepresentations to at least one client concerning the status of her case, four prior Admonitions]). However, we note that respondent has accepted responsibility for her misconduct, cooperated with the AGC, and that the parties herein jointly move for discipline by consent. While respondent’s lack of diligence and neglect of client matters over a decade is indeed troubling, her misconduct directly overlapped with significant personal adversity, and she has taken measures to improve her mental health by enrolling in LAP. Accordingly, the motion for discipline by consent pursuant to 22 NYCRR 1240.8(a)(5) should be granted, respondent is suspended from the practice of law for a period of two years and is directed to successfully complete LAP for such duration as directed by the program. The petition of charges is denied as moot. All concur. IT IS ORDERED that the joint motion for discipline by consent pursuant to 22 NYCRR 1240.8(a)(5) is granted, and respondent Pamela S. Roth, admitted as Pamela Susan Roth, is suspended from the practice of law in the State of New York for a period of two years, effective July 29, 2022 and until further order of this Court, and is directed to successfully complete the New York City Bar Association’s Lawyer’s Assistance Program for such duration as directed by the program, and IT IS FURTHER ORDERED that, pursuant to Judiciary Law §90, during the period of suspension and until further order of this Court, respondent Pamela S. Roth, admitted has Pamela Susan Roth, shall desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other pubic authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding herself out in any way as an attorney and counselor-at-law, and IT IS FURTHER ORDERED that respondent Pamela S. Roth, admitted has Pamela Susan Roth, shall comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 12540.15), which are made part of hereof; and IT IS FURTHER ORDERED that if respondent Pamela S. Roth, admitted has Pamela Susan Roth, has been issued a secure pass by the Office of Court Administration, it shall be returned to the issuing agency, and IT IS FURTHER ORDERED that the petition of charges is denied as moot.
1. The defendant opposed and filed a cross motion seeking costs, arguing that such were warranted because respondent’s postjudgment motions were frivolous. Although the court granted the motion insofar as it sought costs, the court opined that respondent’s conduct did not rise to the level required for sanctions. 2. Respondent ultimately settled JC’s case with the defendant. 3. The Southern District’s section 1983 case plan requires a plaintiff to serve a release under New York CPL 160.50 for the plaintiff’s sealed arrest records for the arrest at issue and a list of the plaintiff’s prior arrests, when the plaintiff files a complaint. 4. The case was later dismissed for failing to state a claim upon which relief can be granted. By Manzanet-Daniels, J.P., Oing, González, Higgitt, JJ. 500123/19. IN THE MATTER OF THE APPLICATION OF HOWARD MUSER, pet-res, FOR THE APPOINTMENT OF A GUARDIAN OF THE PERSON AND PROPERTY OF JUDITH BROOK, ED.D., AN ALLEGED INCAPACITATED PERSON. ADAM BROOK, M.D., PD.D., Cross-pet-app, ETC — Adam Brook, appellant pro se — Huth Reynolds, LLP, Huntington (Karl C. Huth of counsel), for respondent — Orders, Supreme Court, New York County (Kelly O’Neill Levy, J.), entered September 24, 2020, which, respectively, denied the motion of cross petitioner Adam Brook, M.D., PD.D. (petitioner), the son of the late incapacitated person, Judith Brook, ED.D., to compel respondent Howard Muser to comply with discovery demands, and declined to sign subpoenas that petitioner had emailed to chambers, unanimously affirmed, with costs. The majority of petitioner’s appeal is directed at challenging the appointment of a guardian in the first instance. However, the merits of the underlying guardianship application have already been the subject of an unsuccessful appeal before this Court (Matter of Muser v. Muser, 192 AD3d 429 [1st Dept 2021], lv denied 37 NY3d 914 [2021]), which we will not now disturb. As to the merits of this appeal, Supreme Court providently exercised its discretion in denying the motion to compel and declining to sign the subpoenas emailed to chambers (see Matter of Bramble v. New York City Dept. of Educ., 125 AD3d 856, 857 [2d Dept 2015]). The discovery sought was related to the fee applications of private attorneys and other court appointees in this guardianship proceeding, which is a matter that falls within the court’s discretion (see Matter of Audrey J.S., 34 AD3d 820, 821 [2d Dept 2006]). With respect to both orders, the court properly determined that the documents requested are not necessary in determining a fee award, were not tailored to obtaining any relevant information, and that the requested information would have unduly delayed the proceeding (see Matter of City of Glen Cove Indus. Dev. Agency v. Doxey, 79 AD3d 1038, 1038 [2d Dept 2010]; Bramble, 125 AD3d at 857). We have considered petitioner’s remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Manzanet-Daniels, J.P., Oing, González, Scarpulla, Higgitt, JJ. 2021-03717. IN THE MATTER OF ESTHER N. AND OTHERS, CHILDREN UNDER EIGHTEEN YEARS OF AGE, ETC., ONYEBUCHI N., res-app, ADMINISTRATION FOR CHILDREN’S SERVICES, pet-res — Steven N. Feinman, White Plains, for appellant — Sylvia O. Hinds-Radix, Corporation Counsel, New York (Jeremy Pepper of counsel), for respondent — Dawne A. Mitchell, The Legal Aid Society, New York (Marcia Egger of counsel), attorney for the children — Order of fact-finding and disposition (one paper), Family Court, Bronx County (E. Grace Park, J.), entered on or about September 23, 2021, insofar as it determined, after a hearing, that respondent father neglected the four subject children, unanimously affirmed, without costs. The findings of neglect were supported by a preponderance of the evidence that the father committed acts of domestic violence in the presence of two of the children and while the other two children were in the apartment (see Family Ct Act §§1012[f][i][B]; 1046[b][i]; Matter of Tammie Z., 66 NY2d 1, 3 [1985]). The credited testimony of the mother and the caseworker at the fact-finding hearing demonstrated that the father punched the mother with a closed fist while he was arguing with her about the family’s expenses in the living room where two of the children were present, and then continued fighting with her behind a closed bedroom door, leading the children to ask him to stop and to summon the police (see Matter of J.R.M.-C. [Antonio M.], 176 AD3d 623, 624 [1st Dept 2019]). The two children’s out-of-court statements that after they saw the father punch the mother with a closed fist, the eldest daughter summoned the police to stop the altercation as testified to by the caseworker was supported by the mother’s testimony about the incident (see Matter of Zamir D. [Peter J.D.], 201 AD3d 403 [1st Dept 2022]; Matter of Jamya C. [Jermaine F.], 165 AD3d 410, 410 [1st Dept 2018]). A single instance of domestic violence may be a proper basis for a finding of neglect (see Matter of Bobbi B. [Bobby B.], 165 AD3d 587, 587 [1st Dept 2018]). Contrary to the father’s contention, the record, including the mother’s testimony that those children told her that they summoned the police because they were scared of what he was going to do to her, supports the finding that the two older children were in danger of or were emotionally impaired by the domestic violence that he inflicted upon the mother while they were present (see Matter of Jamya C. [Jermaine F.], 165 AD3d 410, 410 [1st Dept 2018]; Matter of Isaiah D. [Mark D.], 159 AD3d 534, 535 [1st Dept 2018]). Furthermore, the two younger children, who were in their own bedroom when the incident occurred, were in imminent danger of physical impairment due to their proximity to the violence directed at the mother even in the absence of evidence that they were aware of the incident or emotionally affected by it (see Matter of Athena M. [Manuel M.T.], 190 AD3d 644, 644 [1st Dept 2021]; Matter of Andru G. [Jasmine C.], 156 AD3d 456, 457 [1st Dept 2017]). There is no basis for disturbing the credibility determinations of the Family Court, which found that it was the father who was the aggressor that day and started the altercation by punching the mother in the face and rejected his testimony concerning her use of a taser as incredible (see Matter of Kelly A. [Ghyslaine G.], 95 AD3d 784, 784 [1st Dept 2012]; Matter of Jared S. [Monet S.], 78 AD3d 536 [1st Dept 2010], lv denied 16 NY3d 705 [2011]; Matter of Ilene M., 19 AD3d 106, 106 [1st Dept 2005]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ. 657055/20. NEW YORK CITY WATERFRONT DEVELOPMENT FUND II, LLC, plf-app, v. PIER A BATTERY PARK ASSOCS., LLC ET AL., def-res — Weil, Gotschal & Manges LLP, New York (Gregory Silbert of counsel), for appellant — Akerman LLP, New York (Benjamin Joelson of counsel), for respondents — Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered on or about August 31, 2021, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss the fraudulent inducement, fraud, aiding and abetting fraud, negligent misrepresentation, and veil-piercing claims, unanimously affirmed, without costs. This dispute arises from plaintiff’s $16.5 million loan to defendant borrower Pier A LLC (Borrower) for premises known as “Pier A.” There are two agreements at issue on this appeal — first is the loan agreement1 between plaintiff and defendant borrower Pier A LLC (Borrower); second is the lease agreement2 between Borrower and non-party Battery Park City Authority (BPCA). The complaint alleges that defendants fraudulently induced plaintiff to extend the loan to Borrower by furnishing false financial projections. However, Borrower expressly represented in section 3.10 of the loan agreement that those projections were prepared in good faith upon assumptions believed to be reasonable at the time (see Thomas v. McLaughlin, 276 AD2d 440 [1st Dept 2000]). As the essence of the allegations is that defendants did not comply with that provision, the only claim stated is breach of contract (see MMCT, LLC v. JTR Coll. Point, LLC, 122 AD3d 497, 499 [1st Dept 2014]). Thus, we need not reach the issue of whether the court properly credited defendants’ written request to prepay the loan as irrefutable proof of absence of intent to defraud. The complaint states that on November 1, 2018, Borrower and BPCA amended their lease agreement. Plaintiff contends that defendants fraudulently induced it to consent to the lease amendments and forbear from enforcement actions with false assertions that Borrower was committed to honoring its obligations and taking steps to enable it to do so. The sixth cause of action sounding in fraud with respect to the pre-loan misrepresentations is duplicative of the breach of contract claim (see e.g. MMCT, LLC v. JTR Coll. Point, LLC, 122 AD3d 497 [1st Dept 2014]; OP Solutions, Inc. v. Crowell & Moring, LLP, 72 AD3d 622 [1st Dept 2010]). The seventh cause of action, for fraud as to the alleged misrepresentations prior to entering into the lease amendments is, similarly duplicative. Finally, the representations that were allegedly made after entering into the lease amendments are not misrepresentations of defendants’ ability to perform (cf. Shear Enters. LLC v. Cohen, 189 AD3d 423 [1st Dept 2020]; Man Advisors, Inc. v. Selkoe, 174 AD3d 435 [1st Dept 2019]). Moreover, plaintiff does not allege that it sustained damages that would not be recoverable under the breach of contract cause of action (Shear Enters., 189 AD3d at 309; Mañas v. VMS Assoc. LLC, 53 AD3d 451, 454 [1st Dept 2008]). Absent a fraud-based claim, there can be no claim for aiding and abetting fraud (see El Toro Group, LLC v. Bareburger Group, LLC, 190 AD3d 536, 542 [1st Dept 2021]). As to the negligent misrepresentation claims, the arm’s length transaction between the sophisticated parties did not give rise to a “special relationship” requiring defendants to speak with care about Borrower’s financial condition (Kimmell v. Schaefer, 89 NY2d 257, 264 [1996]). Plaintiff’s reliance on the “special facts” doctrine is unavailing because, even though the complaint adequately alleges defendants’ superior knowledge of the facts, the allegations that plaintiff could not have discovered the information through the exercise of ordinary intelligence are conclusory (see Jana L v. West 129th St. Realty Corp., 22 AD3d 274, 278 [1st Dept 2005]; P.T. Bank Cent. Asia, N.Y. Branch v. ABN AMRO Bank N.V., 301 AD2d 373, 378 [1st Dept 2003]; Swersky v. Dreyer & Traub, 219 AD2d 321, 327-328 [1st Dept 1996]). The complaint fails to allege facts sufficient to hold the non-Borrower defendants liable under an alter ego theory. Even if it adequately alleges that they dominated and controlled Borrower, the allegations show only that they used this domination and control to cause Borrower to breach its contractual obligations, which is insufficient to pierce the corporate veil (see Parlux Fragrances, LLC v. S. Carter Enters., LLC., 204 AD3d 72, 91 [1st Dept 2022]; Kahan Jewelry Corp. v. Coin Dealer of 47th St. Inc., 173 AD3d 568, 569 [1st Dept 2019]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. 1. According to the complaint, the loan documents consist of the loan agreement, the promissory note and the leasehold mortgage. 2. The complaint alleges that the lease was amended six times, culminating with the Sixth Amendment to Lease, dated November 1, 2018. By Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ. 654257/21. ODONATA LTD. DOING BUSINESS AS COWLICKS JAPAN, plf-app, v. BAJA 137 LLC, def-res — Dilworth Paxson, New York (Ira N. Glauber of counsel), for appellant — Hamra Law Group, P.C., Great Neck (Kevin S. Johnson of counsel), for respondent — Order, Supreme Court, New York County (Melissa Crane, J.), entered on or about February 7, 2022, which, to the extent appealed from as limited by the briefs, granted, in part, defendant’s motion to dismiss the complaint, unanimously affirmed, without costs. The motion court properly dismissed the causes of action for breach of contract, specific performance, breach of the implied covenant of good faith and fair dealing, and promissory estoppel. The documentary evidence, including email correspondence, shows that there was no valid and enforceable agreement between the parties (see CPLR 3211[a][1]; Kolchins v. Evolution Mkts., Inc., 128 AD3d 47, 58-59 [1st Dept 2015], affd 31 NY3d 100 [2018]). Furthermore, there is no basis for promissory estoppel because plaintiff failed to show that it reasonably relied on a draft agreement as being a binding lease agreement between the parties, although it was the only party that signed it (In re Estate of Hennel, 29 NY3d 487, 495 [2017]). In March 2021, plaintiff, the operator of a hair salon, notified defendant that it would be surrendering the premises effective July 7, 2021, a month before the lease was due to expire, because it could no longer afford the rent. In response, defendant offered to forgive certain rent and late fees. It also relayed to plaintiff that it would consider a third modification to the lease, at a lesser rent and on more favorable terms, stating that tenant had been a “great” tenant. Plaintiff replied that it had already found new spaces to rent at lower base rents and that it was prepared to move. Plaintiff then presented defendant with a counteroffer of an even lower base rent, and other more favorable terms, stating that it was more in line with “generous” offers it had received from other property owners. Defendant acknowledged receipt of the counteroffer and advised plaintiff that it would provide a “formal reply” to its counteroffer and that it was subject to a lease amendment signed by both parties. The parties entered into negotiations, aided by an advisor affiliated with defendant. Over the course of several weeks, the parties exchanged redlined versions of a proposed third lease amendment. After several drafts were exchanged, plaintiff sent defendant the latest copy of its proposal and defendant’s advisor asked for a “clean” copy of it. Plaintiff forwarded a clean copy of the document, bearing its signature. The document included a signature block for defendant. Two weeks later, plaintiff inquired about the status of the proposed lease and asked for an “update.” It then sent another email, asking whether there were “any issues?” A few days later, defendant emailed plaintiff that it had rejected the proposed amended lease. Notwithstanding defendant’s unequivocal rejection, plaintiff sent defendant a check purporting to be a payment of rent under the third amended lease. Defendant promptly rejected the check and sent it back to plaintiff, stating there was no agreement because both sides had not signed the third amended lease to lease and it had not agreed to its terms. The commercial lease and the second amendment to the lease expressly provided that any changes to the agreement could only be made in writing and signed by the party against whom enforcement of any modification is sought. The purported third amended lease not only modified plaintiff’s rent obligations, defendant would have also forgiven some unpaid rent and late fees. The email exchanges unequivocally demonstrate that plaintiff was informed and was aware that the signature of all parties was required to amend the lease a third time. Contrary to plaintiff’s contention, there was no meeting of the minds. Defendant rejected the proposed amendment and immediately sent back the check that plaintiff tendered as “rent payment” under the purportedly new amendment (cf. Newmark & Co. Real Estate Inc. v. 2615 E. 17 St. Realty LLC, 80 AD3d 476, 477 [1st Dept 2011] ["the record contain[ed] no evidence that defendant…rejected any of the provisions in the last version of the agreement”]). Although the amended lease allowed for its execution in counterparts, it did not eliminate the need for both parties’ signature on the amended lease in order for it to be a binding agreement. Furthermore, a lease is the conveyance of real property by the landlord to the tenant, and in order for it to be effective it must be in writing subscribed by the party to be charged (General Obligations Law §5–703[2]). Because the third amendment was intended to be for a time period longer than one year, it required a signed agreement to satisfy the Statute of Frauds (General Obligations Law §5-703[1]). Plaintiff nonetheless urges us to apply equitable principles of promissory estoppel, which is not dependent on whether the writing satisfies the Statute of Frauds requirements. Plaintiff describes various financial losses and missed opportunities it suffered as a result of its reliance on the third amendment to the lease that defendant did not sign and then rejected. The elements of promissory estoppel are a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise (DelMestro v. Marlin, 168 AD3d 813, 816 [2d Dept 2019]). Plaintiff has not shown that its reliance on the document bearing only its signature was “reasonable.” The amendment had to be approved by defendant and then signed by both parties. Even if plaintiff agreed to each of the terms defendant requested during their negotiations, the lease was still subject to defendant’s final approval and it required both parties’ signatures. These requirements were a constant thread throughout the parties’ emails and negotiations. It was, therefore, unreasonable for plaintiff to have relied on the document it sent to defendant as being a binding, enforceable lease agreement accepted by defendant. Viewing the facts in the light most favorable to plaintiff, which is that it lost a seemingly favorable lease, passed up on other opportunities and incurred financial losses, the result does not “shock the conscious and confound the judgment of any person of common sense” (In re Estate of Hennel, 29 NY3d at 497). Defendant offered plaintiff a lease modification, plaintiff counteroffered, and ultimately their negotiations did not result in a mutually signed agreement. Plaintiff had no reasonable basis to believe it had a binding agreement with defendant. It is unclear what distinguishes this case from ordinary negotiations to modify a lease to warrant equitable relief. Promissory estoppel is “reserved for that limited class of cases where the circumstances are such as to render it unconscionable to deny the promise upon which the plaintiff relied” (In re Estate of Hennel, 29 NY3d at 495). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Manzanet-Daniels, J.P., Oing, González, Scarpulla, Higgitt, JJ. 151068/18. CAROL PARK, plf-app, v. KURTOSYS SYSTEMS, INC. ET AL., def-res — Rafkin Esq., PLLC, New York (Seth A. Rafkin of counsel), for appellant — Jackson Lewis P.C., White Plains (Michael A. Frankel of counsel), for respondents — Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered October 8, 2021, which granted defendants’ motion for summary judgment dismissing the complaint alleging discrimination and retaliation under the State and City Human Rights Laws, unanimously affirmed, without costs. Defendants demonstrated a legitimate, nondiscriminatory reason — poor performance — for terminating plaintiff’s employment (see Hudson v. Merrill Lynch & Co., Inc., 138 AD3d 511, 514-515 [1st Dept 2016], lv denied 28 NY3d 902 [2016]). They showed that, based on her previous experience generating sales and building a pipeline of clients, plaintiff was hired as the director of enterprise sales at defendant Kurtosys and was expected “very quickly” to “start doing while learning.” However, despite those expectations, during her time at Kurtosys, plaintiff entered only 11 activities into Salesforce, the company’s customer relationship management software, attended no in-person meetings with potential clients, and had $0 in forecasted recurring and one-time fees from closed deals. In opposition, plaintiff failed to raise an issue of fact whether defendants’ reasons for terminating her employment were a pretext for discrimination on the basis of gender (see Hudson, 138 AD3d at 515-516). While plaintiff cited a male coworker as a comparator, the record shows that his salary was about half of hers, that he was brought into the company in an entry-level position, and that he was promoted to his role managing mid-market accounts that had the lowest revenue probability. Moreover, as reflected in the company’s Salesforce data, his performance significantly surpassed hers. In support of dismissing her retaliation claim, defendants demonstrated that plaintiff did not engage in any protected activity (see Franco v. Hyatt Corp., 189 AD3d 569, 571 [1st Dept 2020]). Her complaints about feeling excluded from meetings and conferences fail to indicate that her coworkers’ conduct was motivated by her gender, particularly as she acknowledged that female coworkers were included. In any event, as indicated, defendants established a legitimate nonretaliatory reason for terminating her employment, and plaintiff failed to counter their showing (see Brightman v. Prison Health Serv., Inc., 108 AD3d 739, 740-741 [2d Dept 2013]). In the absence of evidence that plaintiff was discriminated against or retaliated against, her claims that the individual defendants aided and abetted one another must be dismissed (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 314 [2004]). Moreover, defendant Abramson, plaintiff’s supervisor, could not aid and abet his own alleged discriminatory conduct, and there is no evidence that defendant Gellman was aware of any discriminatory conduct (see Tirschwell v. TCW Group Inc., 194 AD3d 665, 667 [1st Dept 2021]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Manzanet-Daniels, J.P., Oing, González, Scarpulla, Higgitt, JJ. 194/17. THE PEOPLE OF THE STATE OF NEW YORK, res, v. DAQUAN KING, def-app — Janet E. Sabel, The Legal Aid Society, New York (Nicholas Raskin of counsel), for appellant — Alvin L. Bragg, Jr., District Attorney, New York (David Gagne of counsel), for respondent — Judgment, Supreme Court, New York County (Robert M. Stolz, J. at suppression hearing; Barry E. Warhit, J. at plea and sentencing), rendered May 29, 2019, convicting defendant of manslaughter in the first degree, and sentencing him to a term of 17 years, unanimously affirmed. Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 NY3d 545 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]; People v. Bryant, 28 NY3d 1094 [2016]). The plea court neither conflated the right to appeal with the rights forfeited by pleading guilty nor mischaracterized the appellate rights defendant would retain notwithstanding the waiver. Moreover, defendant expressly acknowledged that he had consulted with counsel and knew which appellate rights he would be either waiving or keeping. This waiver precludes defendant’s suppression and excessive sentence claims. In the alternative, we find that each of defendant’s appellate arguments is unavailing. The record supports the hearing court’s findings that defendant was not arrested in violation of Payton v. New York (445 US 573 [1980]), but rather was arrested after he voluntarily came out of his mother’s home accompanied by her. Alternatively, we would find that defendant’s statement was in any event attenuated from any illegality; and, that defendant did not unequivocally assert his right to remain silent nor did he request counsel, requiring that all further questioning cease. Finally, we perceive no basis for reducing the sentence. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ. 2694/00. THE PEOPLE OF THE STATE OF NEW YORK, res, v. GONZALO AGUILAR, def-app — Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant — Alvin L. Bragg, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent — Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered March 25, 2002, as amended, July 27, 2012, convicting defendant, after a jury trial, of murder in the second degree, attempted murder in the second degree and assault in the first degree, and sentencing him to an aggregate term of 25 years to life, unanimously affirmed. The court properly granted the People’s reverse-Batson application (see People v. Kern, 75 NY2d 638 [1990], cert denied 498 US 824 [1990]). The record supports the court’s finding that the race-neutral reasons provided by defense counsel for the peremptory challenge at issue were pretextual. We find no basis to disturb the court’s finding of pretext, which is based primarily on the court’s assessment of counsel’s credibility and is entitled to great deference (see Snyder v. Louisiana, 552 US 472, 477 [2008]; People v. Hernandez, 75 NY2d 350 [1990], affd 500 US 352 [1991]). The first reasons given by counsel amounted to a vague and meaningless dissatisfaction with the juror, and counsel’s later reason was plainly an afterthought. The court responded meaningfully to a note from the deliberating jury requesting “All Definitions discussed: Murder II, Manslaughter I, Depraved Murder II, etc.” by rereading its instructions on the elements of the offenses submitted to the jury, without mentioning the defense of justification (see People v. Almodovar, 62 NY2d 126, 131 [1984]). The jury did not ask for reinstruction on justification, which was not included in the elements of the crimes, or for “definitions” of anything but the crimes. The court also providently exercised its discretion in declining to qualify a defense psychiatrist as an expert on the effects of ketamine, a drug that the victims and their companions had been using at the time of the incident. An expert witness “should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” (Matott v. Ward, 48 NY2d 455, 459 [1979]). The proposed expert had only limited clinical experience with a few patients who had taken ketamine, and had never conducted any research, written articles or given lectures or presentations on ketamine. The court appropriately determined that the doctor’s readings and his treatment of patients who had taken a different drug did not qualify him as an expert on the effects of ketamine. Likewise, the court providently exercised its discretion in precluding the testimony of two witnesses who had an altercation with an unidentified group of allegedly drunk and belligerent men earlier on the night of, and in the vicinity of, the incident at issue. The evidence did not establish that this group was the same group that included the victims, and the court providently excluded evidence of “conjectural significance” (see People v. Rodriguez, 149 AD3d 464, 466 [1st Dept 2017], lv denied 29 NY3d 1085 [2017]). Even if they were the same men, defense counsel, who conceded that the proffered testimony was not relevant to defendant’s justification defense, did not establish any other relevance for evidence of the group’s behavior earlier that night. Defendant did not preserve his constitutional arguments regarding the above-discussed evidentiary rulings (see People v. Lane, 7 NY3d 888, 889 [2006]; see also Duncan v. Henry, 513 US 364, 366 [1995]), or any objection, constitutional or otherwise, to the court’s interested witness charge, and we decline to review any of these claims in the interest of justice. As an alternative holding, we find that the evidentiary rulings did not violate defendant’s right to present a defense (see Crane v. Kentucky, 476 US 683, 689-690 [1986]), and that the interested witness charge was not constitutionally deficient (see People v. Blake, 39 AD3d 402, 403 [1st Dept 2007], lv denied 9 NY3d 873 [2007]; see also Reagan v. United States, 157 US 301, 305-311 [1895]) We perceive no basis for reducing the sentence. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Manzanet-Daniels, J.P., Oing, González, Scarpulla, Higgitt, JJ. 3221/14. THE PEOPLE OF THE STATE OF NEW YORK, res, v. JASSEY SULAYMAN, def-app — Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant — Alvin L. Bragg, Jr., District Attorney, New York (Diana Wang of counsel), for respondent — Judgment, Supreme Court, New York County (Maxwell Wiley, J. at suppression hearing; Mark Dwyer, J. at jury trial and sentencing), rendered September 20, 2016, convicting defendant of robbery in the first degree and grand larceny in the fourth degree (three counts), and sentencing him to an aggregate term of 11 years, unanimously reversed, on the law, defendant’s motion to suppress a photo identification granted, and the matter remanded for a new trial preceded by an independent source hearing. The hearing court should have granted defendant’s motion to suppress the victim’s identification of defendant in a photo array. The photo array was unduly suggestive because defendant was the only person shown wearing “distinctive clothing…which fit the description” of the suspect (People v. Owens, 74 NY2d 677, 678 [1989]). Moreover, the distinctive clothing was an outstanding feature of the identifying witness’s description of the robber (see Raheem v. Kelly, 257 F3d 122, 137 [2d Cir 2001], cert denied sub nom. Donnelly v. Raheem, 534 US 1118 [2002]). The victim told the police that he “fixated” on the “unusual shirt” the r0bber was wearing during the incident, a white shirt with a distinctive black design. In the photo array, the visible part of defendant’s shirt closely matched the robber’s shirt as described by the victim. The fillers, on the other hand, all wore shirts that, to the extent visible in the photos, were solid-colored shirts without any markings or designs. Accordingly, defendant is entitled to a new trial, preceded by an independent source hearing (see e.g. People v. Perry, 133 AD3d 410 [1st Dept 2015], lv denied 26 NY3d 1148 [2016]). In light of this disposition, we do not reach defendant’s remaining arguments. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Manzanet-Daniels, J.P., Oing, González, Scarpulla, Higgitt, JJ. 4633/17. THE PEOPLE OF THE STATE OF NEW YORK, res, v. ROBERT PRUDEN, def-app — Robert S. Dean, Center for Appellate Litigation, New York (Elizabeth G. Caldwell of counsel), for appellant — Alvin L. Bragg, Jr., District Attorney, New York (Catherine Marotta of counsel), for respondent — Judgment, Supreme Court, New York County (Melissa C. Jackson, J.), rendered June 7, 2018, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of two years, unanimously affirmed. The court properly denied defendant’s suppression motion. There is no basis for disturbing the court’s credibility determinations, which are supported by the record (see People v. Prochilo, 41 NY2d 759, 761 [1977]). A combination of factors provided the police with, at least, a founded suspicion of criminality that justified a common-law inquiry. In the Port Authority Bus Terminal, officers saw defendant and another man engaging in a transaction involving money, after which the officers heard defendant talking on his phone, saying he had just sold some “sneakers.” Based on his experience, an officer recognized this as code for narcotics, which was corroborated by the fact that neither defendant nor the other man was holding sneakers or any packages. In addition, defendant was in a part of the Terminal that, according to posted signs, at least appeared to be restricted to ticket holders (see People v. Carter, 16 AD3d 188, 189 [1st Dept 2005], lv denied 4 NY3d 852 [2005]), and defendant responded to the officers’ lawful request for information by admitting that he was not a bus passenger. These circumstances amply supported a founded suspicion of criminality permitting a level two inquiry. Accordingly, the officer properly asked defendant whether he had anything that he should not have, which led to defendant’s admission that he had narcotics, which in turn led to a lawful search incident to arrest. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ. 3910/17. THE PEOPLE OF THE STATE OF NEW YORK, res, v. ZAHMEIL WASHINGTON, def-app — Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant — Alvin L. Bragg, Jr., District Attorney, New York (John T. Hughes of counsel), for respondent — Judgment, Supreme Court, New York County (Stephen M. Antignani, J.), rendered June 27, 2019, convicting defendant, after a nonjury trial, of attempted murder in the first degree and robbery in the first degree, and sentencing him to an aggregate term of 15 years to life, unanimously affirmed. Defendant’s legal sufficiency claim regarding his attempted murder conviction is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). The evidence established attempted first-degree murder under a theory of attempting to cause the victim’s death in the course of a robbery. Defendant’s homicidal intent was inferable from his actions, which included stabbing the victim in the back of his neck, and then chasing the injured victim and stabbing him several more times (see People v. Quattrocchi, 190 AD3d 653, 653 [1st Dept 2021], lv denied 37 NY3d 959 [2021]). The evidence also supports an inference that defendant’s actions came dangerously close to causing the victim’s death, even though no life-threatening wounds were actually inflicted (see id.). The court properly denied defendant’s motion to suppress evidence derived from his arrest. There was ample evidence that defendant’s arrest was supported by probable cause. In this robbery of a food delivery worker, defendant’s phone number matched the number used to order food for the purpose of luring the victim to the scene of the crime. In addition, the victim’s description of his assailant matched a photograph of defendant that a detective obtained. Furthermore, the detective testified that this photo also matched the robber’s appearance on a surveillance videotape, and under all these circumstances the People were not required to produce the videotape to demonstrate the legality of the police conduct (see People v. Clarkson, 292 AD2d 207, 208 [1st Dept 2002]). Defendant’s ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record, including counsel’s reasons for requesting the court in this nonjury trial to consider certain lesser included offenses but not others (see People v. Rivera, 71 NY2d 705, 709 [1988]; People v. Love, 57 NY2d 998 [1982]). Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v. Washington, 466 US 668 [1984]). Defendant has not shown that counsel’s failure to request the court to consider the lesser included offenses proposed on appeal fell below an objective standard of reasonableness, or that the court would have granted either of both of those requests, or that upon such consideration it would have reached a different verdict. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Kapnick, J.P., Webber, Mendez, Pitt, Higgitt, JJ. 2148/18. THE PEOPLE OF THE STATE OF NEW YORK, res, v. DANIEL WILLIAMS, def-app — Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant — Alvin L. Bragg, Jr., District Attorney, New York (Karen Schlossberg and Alice Wiseman of counsel), for respondent — Defendant appeals from a judgment of the Supreme Court, New York County (Ann E. Scherzer, J.), rendered November 12, 2019, as amended January 24, 2020, convicting him, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of five years. WEBBER, J. Defendant was charged by indictment with attempted robbery in the second degree. Specifically, it was alleged that in May 2018, between 167th and 168th Streets on Amsterdam Avenue in New York County, defendant approached the complainant who had just completed his shift as a livery driver, pulled a gun out of his pocket, pointed the gun at the complainant and repeatedly said, “Give me the money.” The complainant later identified defendant, who was wearing a hoodie, standing on the sidewalk near West 168th Street and Amsterdam Avenue as the individual who attempted to rob him. No gun was recovered from defendant’s person or a search of the area. Surveillance videos showed an interaction between the complainant and defendant. Prior to the termination of the hearing to suppress physical evidence, defendant stated that he wished to represent himself for the remainder of the hearing. The hearing court discussed with defendant his reasons for the request. The court also advised defendant that “it was not a good idea” to represent himself and that one factor to be considered in deciding whether defendant could represent himself was his “ability to conduct himself properly.” Based upon defendant’s insistence, the court then relieved counsel and adjourned the case for new counsel to be assigned. New counsel was assigned the same day and after speaking with defendant reiterated that defendant wanted to represent himself. Defendant stated that he was prepared to go forward with argument. The case was adjourned for the new counsel to speak further with defendant and to familiarize himself with the case. On the adjourn date, following argument by the prosecutor and defendant, the court denied defendant’s motion to suppress evidence. In advance of the commencement of trial, defendant informed the trial court that he wished to represent himself at trial. The trial court engaged in an extensive colloquy with defendant, inquiring into his education and knowledge of the legal system. The trial court advised defendant that if he were to represent himself, he would have to conduct himself the same as an attorney, and that he was to be respectful to everyone in the courtroom. Defendant assured the court he would do so. The court stated that it would provide counsel to act as defendant’s legal advisor, in order to answer any questions he may have. Defendant conducted the cross-examination of the People’s witnesses. After the People presented their evidence, defendant testified on his own behalf. He did so in narrative form. In sum and substance, defendant testified that he was selling drugs in midtown Manhattan when a man with a tattooed face asked him for money. After defendant gave him money, the man started following defendant. Defendant walked away and saw three other men walking on Eighth Avenue, staring at defendant. He was worried that the men were pursuing him because he entered other drug sellers’ territory. Defendant then took a taxi to 116th Street, near his brother’s home. While exiting the taxi, defendant saw other cars pulling over, so he got back into the taxi and rode to 125th Street. Then he took a bus to Amsterdam Avenue, near 167th Street. After he exited the bus, he saw the men from earlier, still following him. When he walked away from them, he saw a van following him on 167th Street, which was deserted other than the men following him. Defendant saw the complainant walking toward him and carrying a bag, which the complainant claimed contained food for his family. Defendant feared for his life and acted as if he were armed but did not ask for money. The complainant fled. Midway through defendant’s testimony, for reasons discussed herein, the court curtailed his testimony and subsequently terminated defendant’s self-representation. Defendant’s legal advisor was directed to proceed with the remainder of the trial. The court gave an instruction to the jury that they were not to draw any negative inference from counsel now taking over. Following three days of deliberation, the jury returned a verdict of guilty on the charge of attempted robbery in the second degree. Discussion The trial court providently terminated defendant’s self-representation and directed counsel to proceed with the trial. It is well settled that a criminal defendant has a constitutional right to represent him/herself (Faretta v. California, 422 US 806, 819-821 [1975]; People v. Arroyo, 98 NY2d 101, 103-104 [2002]; People v. Smith, 92 NY2d 516, 520 [1998]). However, that right is not absolute. A trial court may deny or revoke defendant’s self-representation where the defendant engages in “disruptive or obstreperous conduct” (People v. McIntyre, 36 NY2d 10, 17-19 [1974], revg 41 AD2d 776 [2d Dept 1973]). Contrary to defendant’s arguments, McIntyre does not require a finding that defendant intended to disrupt or manipulate the proceedings. There, the court found denial of the defendant’s motion to defend pro se was improper. It stated that the trial court’s inquiry of the defendant was conducted in what it described as “an abusive manner calculated to belittle a legitimate application” (id. at 19). It was for these reasons that the Court concluded that the defendant’s disruptive behavior did not justify forfeiture of the right of self-representation. Similarly, this Court has also held that disruptive conduct disqualifies a defendant from self-representation (see People v. Irick, 203 AD3d 517 [1st Dept 2022] [trial court providently denied the defendant's request to proceed pro se, noting the defendant's escalating disruptive behavior during the early trial proceedings as well as the defendant's use of profanity and threats to the court and counsel]; People v. Williams, 134 AD3d 639 [1st Dept 2015], lv denied 27 NY3d 970 [2016] [the court providently exercised its discretion in ejecting the pro se defendant from the courtroom and thus precluding him from continuing to represent himself, due to the defendant's persistently obstreperous and disruptive conduct]; People v. Cooks, 28 AD3d 362 [1st Dept 2006], lv denied 7 NY3d 787 [2006]) [the trial court acted properly in revoking permission for the defendant to represent himself when the defendant was disruptive, feigned mental illness, feigned physical ailments and repeatedly asked to leave the courtroom and claimed illness when summoned back to the courtroom]. Here, the record supports a determination that defendant’s conduct prevented the fair and orderly exposition of the issues and was disruptive to the proceedings (see McIntyre at 17). During the examination of the People’s witnesses, defendant was repeatedly told by the court to “calm down,” to not get agitated, to not argue and be combative with the witnesses, and to not argue with the court regarding its rulings. The record also reflects instances where the court explained its rulings to defendant, defendant stated he understood and would then immediately engage in the same conduct. Moreover, during his testimony, the court repeatedly admonished defendant to stop making arguments to the jury. When asked twice by the court to sit down, he refused to do so. Defendant also repeatedly ignored the direction of the court officer to sit down. Instead, defendant remained standing, continued his argument and questioned the court’s ruling. Defendant also made reference to his over one-year period of pretrial detention as well as that he had a teenage son. It is clear from the record that the court’s termination of defendant’s self-representation was not, as asserted by defendant, based upon an isolated incident during defendant’s testimony. Rather, it was the culmination of defendant’s escalating, agitated behavior. Further, defendant was previously instructed by the trial court that were he allowed to represent himself he was to conduct himself as an attorney would and was to be respectful of everyone in the courtroom yet failed to do so. Contrary to defendant’s argument, his absence from a colloquy conducted by the court did not violate his right to be present at a material stage in the proceedings. As stated above, midway through his narrative testimony, the court curtailed defendant’s testimony. The record indicates that during defendant’s testimony, the court repeatedly told defendant to calm down, to slow down, and to stop arguing and putting forth arguments to the jury. Ultimately the court announced that the proceedings would end for the day (Friday) and resume on Monday morning. After the jury exited, the court explained that it had taken these actions because defendant was extremely agitated and as a result, he was not “telling a coherent story.” The court then asked that defendant be “taken in the back for a few minutes to calm down.” It was during defendant’s absence that the following colloquy took place: (Record suspended) “THE COURT: I will order a psychiatric evaluation. I don’t think this is a fair proceeding with the defendant being in the state of mind that he appears to be in right now. So I will order a psychiatric evaluation. I hope that is done over the weekend, and I will do whatever it takes to make sure we get the results of it. Mr. Nathanson, do you know if he was on medication during the proceeding until today? You don’t think he’s been on medication today, other than today, on psychiatric medication? “MR. NATHANSON (Defense Counsel): I do not. I have – - I do not. This Harlem Hospital report is from about two weeks before we discussed. It says no medication. That was a year — plus ago, so I don’t know, Judge. “MS. SMITH (Assistant District Attorney): Judge, while I understand that Mr. Williams was obviously very upset this afternoon toward the end here, he understands what is going on. He understands the roles of everyone. He is making — – his arguments are good arguments. He has a defense. I don’t know that a psychiatric exam is necessary. I think having him get the weekend to cool off is good. Up to point he has a very clear defense of what he is trying to say. He’s been making his arguments. He knows the roles of everybody here. I understand that he gets easily worked up, but I’m not sure at this point in the trial a psychiatric exam is necessary. I think we should continue with the trial as moving forward from here. “THE COURT: I know that’s your position. I assumed that would be the DA’s position. However, I am looking at the global picture and looking at a defense which is paranoid by its very nature. My job is only to make sure that the case goes forward as quickly and as expeditiously as possible, but also to make sure we are not doing injustice to a person suffering from a very serious mental illness. So I don’t exactly know how I’m supposed to proceed in a situation like this. And I certainly can’t subject the jury to this type of spectacle in my opinion where the defendant is just shooting himself in the foot over and over again. So maybe — ultimately I will do research on it and decide if that’s what I have to do. But based on his behavior in the courtroom and the things he saying and seems to believe, I think it’s incumbent upon me to take a pause and figure out the best way to proceed. “MS. SMITH: Judge, the only other thing I want to put on the record — – “THE COURT: I will — no, I will bring the defendant out and speak to him. What is it that you want to put on the record? “MS. SMITH: He testified in the Grand Jury three weeks after he was arrested and there was nothing in his statement that indicated on the night this happened that he was paranoid. He was anything other than perfectly fine. The statement that he gave to the Grand Jury was much different, but much clearer. And there was– so if we are talking about the mental state at the time versus today – “THE COURT: Could I see the Grand Jury minutes, please. “MS. SMITH: Yes. “THE COURT: Off the record. (Discussion of the record) Defendant was then brought back to the court whereupon the following colloquy occurred: “THE COURT: All right, Mr. Williams, have you calmed down a little bit? “DEFENDANT PRO SE: Yes.” The court again admonished defendant regarding his behavior and stated that his testimony would resume on Monday morning. There was no further discussion of a psychiatric examination, and no psychiatric examination of defendant was ordered. Defendant argues that his absence during the above colloquy was violative of his right to counsel and his right to be present at a material stage in the proceedings and therefore requires reversal. Preliminarily, contrary to defendant’s characterizations, this was not a hearing to determine whether defendant was no longer competent to stand trial. The court never stated that it was considering ordering an examination pursuant to CPL 730. It specifically stated that it was considering a psychiatric examination based upon defendant’s agitated state. There was no statement or suggestion by the court that defendant did not understand the proceedings, only that defendant continually ignored the court’s rulings and attempted to offer arguments to the jury during the trial testimony. There is no doubt that a defendant has a right to be present for any material stage of a trial (CPL 260.20; People v. Roman, 88 NY2d 18, 25-26 [1996]). A “pro se defendant must be allowed…to argue points of law,…and to address the court…at appropriate points in the trial” (People v. Rosen, 81 NY2d 237, 244 [1993] [citation and internal quotation marks omitted]). The defendant may not be excluded from those proceedings where his or her absence would be appropriate because he or she is acting as counsel (id. at 244). However, not every interaction is “a material stage” requiring the defendant’s presence or a “critical stage” at which there is a right to have counsel present (see People v. Garcia, 92 NY2d 726 [1999]; People v. Rodriguez, 85 NY2d 586, 590-591 [1995]; People v. Joseph, 168 AD3d 877 [2d Dept 2019], lv denied 33 NY3d 977 [2019]; People v. Torres, 61 AD3d 489 [1st Dept 2009], lv denied 12 NY3d 921 [2009]). “The right to be present under CPL 260.20 extends to every ancillary proceeding that is a material stage of the trial, that is, proceedings in which a defendant’s presence could have a substantial effect on his or her ability to defend against the charges” (People v. Roman, 88 NY2d at 25-26 [internal quotation marks omitted]). The Court in Roman stated that “[a] defendant’s presence is substantially and materially related to the ability to defend when the defendant ‘can potentially contribute to the proceedings’ under scrutiny (citing People v. Sprowal, 84 NY2d 113, 118 [1994]); or when a defendant’s ‘presence would have been useful in ensuring a more reliable determination’ of the particular proceeding at issue” (citing People v. Morales, 80 NY2d 450, 454 [1992]). The Court went on to state that “[i]nvocation of the statutory right to be present will be rejected, however, when the claim that a defendant’s presence would have had an impact on the outcome of the trial is ‘speculative’” (People v. Roman, 88 NY2d at 26). It is clear from the record that defendant’s presence would have been “useless, or the benefit but a shadow” (People v. Morales, 80 NY2d at 454, quoting Snyder v. Massachusetts, 291 US 97, 106–107 [1934]). Defendant has made no showing as to how he could have “potentially contribute[d] to the proceeding,” or how his “presence would have been useful in ensuring a more reliable determination” (People v. Roman, 88 NY2d at 26). As stated, the court made no ruling and took no action regarding its ruminations as to whether a psychiatric examination of defendant should be ordered. While such an examination could have impacted the trial, no examination was ordered. Given this, it is unclear as to how defendant’s presence could have afforded him any meaningful opportunity to affect the outcome (see id.). Defendant argues that a colloquy with him was necessary to “answer the question of his fitness.” However, the court never suggested defendant was unfit to proceed with the trial. Defendant also asserts that he may have argued that a “730 examination would not have delayed trial.” Again, there was never a mention of a 730 examination. This argument is incongruous with defendant’s predominate argument that his self-representation was improperly terminated. Finally, the suggestion by defendant that the ultimate termination of his self-representation was the result of the above colloquy is baseless speculation and belied by the record of defendant’s behavior throughout the proceedings. The Court properly declined to excuse Juror No. 2, finding that he was not grossly unqualified. CPL 270.35[1] states in pertinent part: “If at any time after the trial jury has been sworn and before the rendition of its verdict, a juror is unable to continue serving by reason of illness or other incapacity, or for any other reason is unavailable for continued service, or the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature, but not warranting the declaration of a mistrial, the court must discharge such juror…” During deliberations, the court was informed that Juror No. 2 stated that he did not wish to return to the trial and to resume deliberation. The juror was directed to appear and the court, in the presence of counsel and defendant, engaged in a colloquy with the juror. It was noted that during the direct examination of the complainant, the complainant identified Juror No. 2 as the individual who had attempted to rob him. However, on cross-examination by defendant, the complainant retracted his statement and identified defendant as the individual who attempted to rob him. Once presented with information indicating that a sworn juror may be grossly unqualified, a trial court must conduct a ” ‘probing and tactful inquiry’ of the juror” (People v. Kuzdzal, 31 NY3d 478, 486 [2018], quoting People v. Buford, 69 NY2d 290, 299 [1987]). “[T]he standard for discharging a sworn juror…is satisfied only when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict”; this standard “is higher than that required for the removal of a prospective juror” (Kuzdzal, 31 NY3d at 483 [emphasis in original; internal quotation marks and citation omitted]). Here, the record indicates that the court conducted a probing and tactful inquiry of Juror No. 2 and properly found that the juror was not grossly disqualified. While the juror initially said he could not be “fair,” further inquiry elicited that the complainant’s testimony that the juror looked like the individual who attempted to rob him did not “give [the juror] an opinion” but merely “helped base [his] opinion”. The juror gave no indication that he could not consider the case with an open mind. Defendant’s argument that the court improperly precluded defense counsel from asking Juror No. 2 what happened in the jury room is without merit. The juror’s vague reference to what had been said in the jury room did not warrant undermining “[t]he strong public policy favoring the absolute confidentiality of jury deliberations,” which “is not lightly to be disregarded” (People v. Bouton, 50 NY2d 130, 138 [1980]). We note also that counsel ultimately declined to consent to the removal of the juror. Under these circumstances, the juror’s “declaration regarding emotions alone d[id] not render [him] grossly unqualified” (People v. Batticks, 35 NY3d 561, 566 [2020] [internal quotation marks and citation omitted]) and the court properly declined to excuse the deliberating juror. We have considered defendant’s remaining contentions and find them unavailing. Accordingly, the judgment of the Supreme Court, New York County (Ann E. Scherzer, J.), rendered November 12, 2019, as amended January 24, 2020, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of five years, should be affirmed. Judgment, Supreme Court, New York County (Ann E. Scherzer, J.), rendered November 12, 2019, as amended January 24, 2020, affirmed. Opinion by Webber, J. All concur. Kapnick, J.P., Webber, Mendez, Pitt, Higgitt, JJ. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ. 2507/18. THE PEOPLE OF THE STATE OF NEW YORK, res, v. JONATHAN MALDONADO, def-app — Janet E. Sabel, The Legal Aid Society, New York (Hilary Dowling of counsel), for appellant — Darcel D. Clark, District Attorney, Bronx (Daniel Young of counsel), for respondent — An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, Bronx County (Bahaati Pitt, J.), rendered December 20, 2018, 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. By Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ. 65/16. THE PEOPLE OF THE STATE OF NEW YORK, res, v. RODNEY CHADWICK, def-app — Janet E. Sabel, The Legal Aid Society, New York (Steven J. Miraglia of counsel), for appellant — Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered September 14, 2016, unanimously affirmed. Application by defendant’s counsel to withdraw as counsel is granted (see Anders v. California, 386 US 738 [1967]; People v. Saunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed this record and agree with defendant’s assigned counsel that there are no non-frivolous points which could be raised on this appeal. Pursuant to Criminal Procedure Law §460.20, defendant may apply for leave to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Division of the Supreme Court of this Department on reasonable notice to the respondent within thirty (30) days after service of a copy of this order. Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ. 5001387/09; 160295/15. IN THE MATTER OF JOSE VERDUGO, ETC. ROCIO PIETERNELLE, ETC., plf-res, v. SMILEY & SMILEY, LLP, def, FLOMENHAFT & CANNATA, LLP, ET AL., def-app; SCHWARTZ GOLDSTONE CAMPISI & KATES, LLP, Nonparty res — The Flomenhaft Law Firm, PLLC, New York (Andrew MacNeill Wanger of counsel), for appellants — Schwartz Goldstone Campisi & Kates, LLP, New York (Herbert Rodriguez Jr. of counsel), for Schwartz Goldstone Campisi & Kates, LLP, respondent — Order, Supreme Court, New York County (Carol Sharpe, J.), entered August 11, 2021, which, to the extent appealed from as limited by the briefs, denied defendants Flomenhaft & Cannata, LLP, Flomenhaft Law Firm, PLLC, and Michael Flomenhaft’s (collectively, Flomenhaft) motion for summary judgment dismissing the complaint as against them on statute of limitations grounds and summary judgment, upon the dismissal of the complaint, dismissing nonparty Schwartz Goldstone Campisi & Kates, LLP’s (SGCK) petition for apportionment of attorneys’ fees as barred by the doctrine of res judicata or collateral estoppel, and directed that a hearing be held on the issue of the tolling of the statute of limitations for insanity (CPLR 208), unanimously modified, on the law and the facts and in the exercise of discretion, to vacate the directive that a hearing be held pursuant to CPLR 208 and the determination that, if the malpractice complaint is dismissed as against Flomenhaft on statute of limitations grounds, the fee petition will not be barred by the doctrine of res judicata or collateral estoppel, appeal therefrom to the extent it denied Flomenhaft’s motion for summary judgment dismissing the malpractice complaint affirmed, and appeal therefrom to the extent it denied Flomenhaft’s motion for summary judgment dismissing the fee petition dismissed, without costs. Flomenhaft was retained by defendant Smiley & Smiley, LLP, as trial counsel in a 2004 personal injury action brought by the subject incapacitated person (IP) before a guardian was appointed. On January 5, 2006, nonparty counsel referred by Flomenhaft requested that a guardianship petition filed for the IP by his relatives be marked off the calendar, and the petition was marked off the following month. On March 2, 2007, March 6, 2007, April 3, 2007, and January 18, 2008, the IP entered into loan agreements with Peachtree. In April 2009, SGCK was substituted for Flomenhaft, and in 2015 the personal injury action settled. Plaintiff commenced this action on behalf of the IP against Flomenhaft and Smiley & Smiley asserting breach of fiduciary duty and related causes of action (the malpractice action). SGCK brought a petition to allocate fees in which it argued that Flomenhaft was discharged for cause (the fee petition). The parties do not dispute that Flomenhaft established prima facie that this action asserting breach of fiduciary duty and related causes of action (the malpractice action) was commenced after the applicable statutes of limitations had expired. However, plaintiff raised an issue of fact whether the statutes of limitations were tolled for “insanity” (see Cox v. Kingsboro Med. Group, 88 NY2d 904 [1996]; Rodriguez v. Mount Sinai Hosp., 96 AD3d 534, 535 [1st Dept 2012]; CPLR 208[a]). Viewed in the light most favorable to plaintiff, the record presents issues of fact as to the IP’s ability to protect his legal rights and his overall ability to function in society at the time his claims against Flomenhaft accrued, i.e., in January 2006, when nonparty counsel referred by Flomenhaft requested that the guardianship petition filed for the IP by his relatives be marked off the calendar, and in March 2007, April 2007, and January 2008, when the IP entered into loan agreements with Peachtree Funding Northeast, LLC (Peachtree) (see McCarthy v. Volkswagen of Am., 55 NY2d 543, 548 [1982]). The record shows that the IP suffered a traumatic brain injury in 2003, after which some physicians found that he suffered from memory and cognitive deficits. Most notably, in November 2006, a neuropsychological independent medical examination showed a deficient cognitive profile, and between 2006 and 2008, the IP’s treating neuropsychiatrist consistently observed memory and cognitive deficits. A court-appointed evaluator supported guardianship in 2006 and again in 2009. In addition, the Peachtree loans were vacated based on the IP’s incapacity, and, in 2009, guardians were appointed after the IP was determined to be incapacitated under Mental Hygiene Law article 81. These two legal determinations are not conclusive as to insanity (cf. Matter of Goussetis v. Young Adults with Special Abilities, Inc., 198 AD3d 761, 762 [2d Dept 2021] [evidence of appointment of guardians was sufficient to demonstrate that petitioner was "intellectually disabled" within meaning of SCPA 1750, but not that she was "insane"]; see Mental Hygiene Law §81.29[b] [appointment of guardian shall not be conclusive evidence that the incapacitated person lacks capacity for any other purpose]). However, they augment the above-cited evidence in placing the IP’s ability to function in issue. None of the cases cited by Flomenhaft involved a previous head injury, resulting in documented cognitive and memory deficiencies observed in temporal proximity to the accrual of the causes of action, and related legal findings of incapacity. Nevertheless, the disputed issue of the IP’s sanity, necessary to resolve the statute of limitations issue, should not be heard at a pretrial hearing, but rather it should be heard at the same time as the underlying trials of these matters. This is because both the malpractice action and the fee petition turn in part on the IP’s capacity. Any resolution of the sanity issue at a pre-trial hearing could potentially deprive the parties of a right to a jury trial. Flomenhaft’s appeal from the denial of its motion for summary judgment dismissing the fee petition is dismissed on the ground that it would result in an advisory opinion (see Cuomo v. Long Is. Light. Co., 71 NY2d 349, 354 [1988]; e.g. Cheng v. Oxford Health Plans, Inc., 15 AD3d 207, 208 [1st Dept 2005]). We, however, exercise our discretion to vacate the motion court’s determination that, if the malpractice complaint against Flomenhaft is dismissed based on the statute of limitations, then the fee petition would not be barred by the doctrines of res judicata or collateral estoppel. Having denied Flomenhaft’s motion to dismiss the malpractice complaint on statute of limitations grounds, the court should not have considered whether the fee petition would be barred by the doctrine of res judicata or collateral estoppel. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Manzanet-Daniels, J.P., Oing, González, Scarpulla, Higgitt, JJ. 654340/18. JOHN QUEALY IRREVOCABLE LIFE INSURANCE TRUST, ISRAEL GROSSMAN SUCCESSOR TRUSTEE, plf-app, v. AXA EQUITABLE LIFE INSURANCE COMPANY, def-res — Boris Kogan & Associates, P.C., New York (Boris Kogan of counsel), for appellant — Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered on or about February 3, 2021, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs. Plaintiff trustee Israel Grossman’s daughter, Esther Berkowitz (Berkowitz), was the trustee of the life-insurance-holding trust. The policy was issued by defendant on the life of John Quealy, a stranger to Berkowitz and her father. After the death of the insured, the trust submitted a claim on the policy to defendant, which defendant denied. Berkowitz commenced the prior action seeking payment of the death benefit, which she eventually discontinued with prejudice pursuant to a stipulation she executed as trustee. Grossman subsequently commenced the present action, as the purported successor trustee, seeking vacatur of the stipulation of discontinuance. He alleged that Berkowitz did not have authority to effectuate the stipulation of discontinuance because she had resigned as trustee prior to its execution. In dismissing this action, Supreme Court found that Grossman had manufactured evidence that was submitted in connection with the prior action, and, therefore, upheld the validity of the stipulation of discontinuance. We agree with Supreme Court’s conclusion that dismissal of the complaint is called for based on Grossman’s misconduct. In CDR Creances S.A.S. v. Cohen (23 NY3d 307 [2014]), the Court of Appeals recognized “that where a court finds, by clear and convincing evidence, conduct that constitutes fraud on the court, the court may impose sanctions including, … striking pleadings and entering default judgment against the offending parties to ensure the continuing integrity of our judicial system” (23 NY3d at 311). “Fraud on the court involves willful conduct that is deceitful and obstructionist, which injects misrepresentations and false information into the judicial process ‘so serious that it undermines the integrity of the proceeding’” (id. at 318, quoting Baba-Ali v. State of New York, 19 NY3d 627, 634 [2012]). Here, Grossman fabricated evidence on material issues to further a scheme designed to conceal critical matters from the court and the defendant in the prior action. He concealed his role in procuring the life insurance policy and attempted to recover the death benefit thereunder by employing a straw person — his daughter. No lesser sanction than dismissal of this action, therefore, would have sufficed to correct Grossman’s misconduct. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ. 305209/13. LEON SIMON ET AL., plf-res, v. BERNARD LEWIS ET AL., def-app — Bernard Lewis, appellant pro se — Coleen Weaver, as Administrator of Ethans Estate Trust, appellant pro se — Albert A. Hatem, P.C., White Plains (Albert A. Hatem of counsel), for respondents — Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.) entered on or about January 22, 2019 which, to the extent appealed from as limited by the briefs, denied defendant Bernard Lewis’s motion to dismiss the complaint, unanimously affirmed, without costs. Order, same court and Justice, entered on or about July 5, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motion to stay a second landlord-tenant proceeding commenced by defendant Coleen Weaver and vacate the warrant of eviction, unanimously affirmed, without costs. Order, same court and Justice, entered on or about September 16, 2019, which denied Weaver’s motion to strike certain allegedly scandalous matters from the record and granted plaintiffs’ cross motion to the extent of barring defendants from making further motions related to any of the issues previously decided by the court, unanimously affirmed, without costs. Order, same court and Justice, entered on or about August 10, 2020, which, to the extent appealed from as limited by the briefs, relieved plaintiffs’ counsel from representation in the action, unanimously affirmed, without costs. Order, same court and Justice, entered on or about August 25, 2020, which, in effect, denied defendants’ motion to disqualify plaintiff’s counsel, vacate the prior orders of the court, and dismiss the amended complaint, unanimously affirmed, without costs. Supreme Court correctly denied Lewis’s CPLR 3211 motion to dismiss the original complaint, made more than five years after the litigation commenced. Lewis waived his arguments based on documentary evidence and lack of capacity to sue by failing to raise them within the time to answer the complaint (see CPLR 3211[e]; Dougherty v. City of Rye, 63 NY2d 989, 991-992 [1984]). In any event, the documentary evidence did not conclusively establish a defense to the action. Further, contrary to Lewis’s contention, his assertion that plaintiffs did not live on the property does not divest the court of subject matter jurisdiction (NY Const, art VI, §7[a]; see A&L 1664 LLC v. Jaspar Hospitality LLC, 201 AD3d 512, 512 [1st Dept 2022]). Rather, it goes to the merits of plaintiffs’ claim for adverse possession. To the extent defendants’ arguments on appeal are directed to the alleged failure by plaintiffs’ counsel to notify them that plaintiffs were filing orders to show cause seeking interim relief, those arguments are not properly before us, as no appeal as of right lies from an order that does not result from a motion on notice under CPLR 5701(a)(2) (see Parlux Fragrances, LLC v. S. Carter Enters., LLC, 204 AD3d 72, 92 [1st Dept 2022]). Turning to defendants’ assertion that plaintiffs were not entitled to a stay of a second landlord-tenant proceeding commenced by Weaver, Supreme Court had issued an earlier order, dated March 11, 2019, intended to stay a prior Civil Court litigation so as to determine the common questions of law and fact in this action, and Weaver failed to inform the court that she had filed a second proceeding. Because the landlord-tenant proceedings would circumvent plaintiffs’ request in this action for a declaration that they own the property by virtue of adverse possession — a declaration that cannot be obtained in Civil Court — the stay of both landlord-tenant proceedings was proper (see Chaplin v. National Grid, 171 AD3d 691, 692 [2d Dept 2019]). To the extent the March 11, 2019 order was insufficient to consolidate the landlord-tenant proceedings with this action under CPLR 602, plaintiffs are free to seek consolidation before the motion court. Defendants’ motion to disqualify plaintiffs’ counsel, for vacatur, and to dismiss the complaint was correctly denied, as there was no basis to disqualify plaintiff’s counsel. At the time of the court’s decision on the motion to disqualify counsel, the court had already relieved counsel. Therefore, the motion was moot. Furthermore, defendants have not shown that the testimony of plaintiff’s counsel would be necessary and prejudicial to plaintiffs (see Ullmann-Schneider v. Lacher & Lovell-Taylor PC, 110 AD3d 469, 470 [1st Dept 2013]). With respect to the branch of defendants’ motion that sought to dismiss the amended complaint, failure to maintain an office under Judiciary Law §470 does not mandate dismissal of the action (see Arrowhead Capital Fin., Ltd. v. Cheyne Specialty Fin. Fund L.P., 32 NY3d 645, 650 [2019]). Finally, the branch of defendants’ motion for vacatur under CPLR 5015(a)(2) based on newly discovered evidence and under CPLR 5015(a)(3) based on fraud, misrepresentation, or other misconduct was properly denied based on the court’s earlier orders rejecting those same arguments; the alleged additional evidence submitted would not have resulted in a different outcome (see Woori Am. Bank v. Winopa Intl. Ltd., 63 AD3d 490, 491 [1st Dept 2009]). We have considered defendants’ remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Manzanet-Daniels, J.P., Oing, González, Scarpulla, Higgitt, JJ. 652604/18. SKY COVERAGE INC., ET AL., plf-app, v. AL-WEX INC., ET AL., def-res — Goldsmith & Fass, New York (Robert Fass of counsel), for appellants — Goldberg Segalla LLP, New York (Matthew S. Trokenheim of counsel), for respondents — Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered June 25, 2021, which granted defendants’ motion to vacate (1) the court’s prior order, dated May 21, 2020, directing that money remain in escrow, and (2) the court’s prior order, dated March 14, 2018, enjoining plaintiff Sky Coverage, Inc. and defendant Alwex, Inc. from disparaging each other, and denied plaintiffs’ cross motion for leave to file an amended complaint and for a declaratory judgment, unanimously affirmed, with costs. Supreme Court properly denied the cross motion for leave to amend. Plaintiff’s proposed amended complaint, which sought to add a cause of action for rescission of the parties’ settlement agreement, is devoid of merit given this Court’s dismissal of that claim in a prior appeal (Sky Coverage Inc. v. Alwex Inc., 194 AD3d 587, 587 [1st Dept 2021]; see also Sahmanovic v. Kingsbridge Realty Assoc, LLC, 197 AD3d 1077, 1077 [1st Dept 2021]). Supreme Court also correctly declined to permit plaintiffs to seek a declaratory judgment because this Court determined in the prior appeal that plaintiffs had an adequate remedy at law under their breach of contract claim (Sky Coverage Inc., 194 AD3d at 587; see Ithilien Realty Corp v. 180 Ludlow Dev LLC, 140 AD3d 621. 622 [1st Dept 2016]). For the same reason, the court correctly vacated the nondisparagement injunction, which it had issued sua sponte (see Credit Index, LLC v. RiskWise Intl., LLC, 282 AD2d 246, 247 [1st Dept 2001]). Moreover, the injunction was issued before the parties memorialized their settlement in a written form, and insofar as the formal settlement agreement of March 20, 2018 obliges the parties not to disparage each other, a separate injunction is unnecessary. Finally, the escrow order was correctly vacated because the original terms of the escrow were premised on the potential for an order of recission¬-a basis that no longer exists in view of this Court’s dismissal of the recission claim. The escrow order is therefore moot, as plaintiffs may seek monetary damages for any economic loss and have failed to demonstrate entitlement to prejudgment attachment (CPLR 6201). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Manzanet-Daniels, J.P., Oing, González, Scarpulla, Rodriguez, JJ. 154735/20. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, plf-app, v. ALL CITY FAMILY HEALTHCARE CENTER, INC. ET AL., def, ATLAS PHYSICAL THERAPY, INC. ET AL., def-res — Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant — Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about June 24, 2021, which denied plaintiff’s motion for a default judgment on its claims seeking a declaration of noncoverage against all defaulting defendants, unanimously reversed, on the law, without costs, the motion granted, and it is so declared. This declaratory judgment action concerns claims for no-fault insurance benefits made in connection with an automobile crash that occurred on February 5, 2019. Contrary to the court’s ruling, plaintiff established, as to the first cause of action, that the individual claimants, who assigned their claims for no-fault insurance benefits to the defaulting medical service provider defendants, failed to appear for properly-noticed examinations under oath. A review of the court’s order indicates that it based its decision on plaintiff’s receipt of a NF-2 form (application for no-fault benefits), rather than the verification forms (e.g., NF-3 or NF-4 forms). The 15-business day timeframe is not measured based on receipt of the NF-2 application, but on the receipt of the verification forms (11 NYCRR 65-3.5[a], [b]); see Hertz Vehicles, LLC v. Best Touch PT, P.C., 162 AD3d 617 [1st Dept 2018]). Accordingly, plaintiff’s notices were timely and the failure to appear was a breach of a condition precedent to coverage and voids the policy ab initio (see State Farm Mut. Auto Ins. Co. v. Surgicore of Jersey City, LLC, 195 AD3d 454, 455-456 [1st Dept 2021]; Unitrin Advantage Ins. Co. v. Dowd, 194 AD3d 507 [1st Dept 2021]). As to the second cause of action, seeking a declaration of noncoverage because the crash was intentional or staged, plaintiff submitted sufficient evidence warranting entry of a default judgment (see CPLR 3215[f]; Surgicore, 195 AD3d at 455). Plaintiff’s submissions were sufficient to determine that a viable declaratory judgment cause of action of noncoverage exists and, by failing to answer, the defaulting defendants are deemed to have admitted the factual allegations in the complaint (see generally Woodson v. Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Surgicore, 195 AD3d at 455). Finally, as to the third cause of action, seeking a declaration of noncoverage based on the named insured’s failure to cooperate with the investigation of the claim, plaintiff also submitted sufficient evidence warranting entry of a default (CPLR 3215[f]; see generally Pryor v. New York Prop. Ins. Underwriting Assn., 18 AD3d 361, 362 [1st Dept 2005]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. By Gische, J.P., Kern, Mazzarelli, Singh, Rodriguez, JJ. 652373/18. TODD ENGLISH ENTERPRISES LLC, FOR SERVICES OF TODD ENGLISH, plf-app, v. HUDSON HOME GROUP, LLC, def-res — Pastore LLC, New York (Leanne M. Shofi of counsel), for appellant — Law Offices of Gilbert A. Lazarus, PLLC, New York (Gilbert A. Lazarus of counsel), for respondent — Order, Supreme Court, New York County (Shawn Kelly J.), entered November 22, 2021, which denied plaintiff’s motion for summary judgment on its breach of contract cause of action and for dismissal of defendant’s breach of contract counterclaim, unanimously affirmed, without costs. On April 29, 2014, plaintiff and defendant entered a licensing agreement with a term until the end of 2018. Defendant agreed to develop a line of cookware, inspired by celebrity chef Todd English, which plaintiff agreed to promote. Defendant guaranteed royalties to plaintiff during specified time periods. Section 12.10 required that any modification or waiver be in writing. Section 5.2.2 of the agreement permitted defendant to terminate the agreement under specified circumstances. These circumstances included: if defendant reasonably decided that English’s conduct during the term of the agreement, or previous conduct that came to light during that term, damaged his opinion or reputation; if any such conduct was perceived to be offensive by the general public; if he was arrested for, or charged with, a felony or crime of moral turpitude; and if English made any favorable public display for a competitive product. In March 2014, while the parties were negotiating the agreement, The New York Post published an article featuring a picture of English in a hot tub with three topless women. English remained the subject of much press coverage throughout the term of the agreement. In August 2014, only a few months after the agreement became effective, English was arrested and charged with drunk driving. In November 2015, lawyers who had represented English sued him to collect a bill of over $270,000. In October 2017, employees at one of English’s businesses filed a lawsuit alleging repeated sexual harassment. Shortly afterwards, a server accused English personally of sexually harassing her. All of these events were reported by the media. They also raised doubts as to whether English would legally be able to enter Canada, as required to promote the products, which led English to consider attempting to enter Canada without a visa. Additionally, in August 2016, English promoted competing products on television. It does not appear that defendant disputes knowing of these events shortly after they occurred, or that it did not take action to terminate the agreement at that time. On February 19, 2018, defendant terminated the agreement. As justification for this termination, it cited: public reporting of English’s “inappropriate and unprofessional behavior,” including claims of sexual harassment; lawsuits filed against English, including his former attorneys’ claim for legal fees; that English was arrested for driving while intoxicated; and English’s public promotion of competing products in August 2016. Plaintiff sued defendant in New York County, alleging that defendant breached its contractual obligation to pay royalties. Defendant counterclaimed for breach of contract. Plaintiff moved for summary judgment and to dismiss defendant’s counterclaim. Supreme Court denied plaintiff’s motion. We agree with Supreme Court that there are triable issues of fact as to both plaintiff’s claim and defendant’s counterclaim. There are questions of fact as to whether English’s conduct breached the contract, whether defendant properly terminated the contract, and the damages suffered by either party. Plaintiff’s invocation of the election of remedies doctrine is unavailing. Under this doctrine, when one party breaches a bilateral contract, the other party “must make an election between declaring a breach and terminating the contract or, alternatively, ignoring the breach and continuing to perform under the contract” (Rebecca Broadway L.P. v. Hotton, 143 AD3d 71, 80-81 [1st Dept 2016]). On learning of the breach, the other party “has a reasonable time” to elect its remedy (Parlux Fragrances, LLC v. S. Carter Enters., LLC, 204 AD3d 72, 86 [1st Dept 2022]). Here, defendant could have attempted to terminate the agreement as soon as it knew of English’s purported misconduct. It did not do so until February 2018, years after it learned of some of the conduct at issue. Therefore, there are triable issues of fact as to whether defendant elected to continue performance rather than to declare a breach (see id. at 86, 90). Moreover, given the agreement’s no waiver clause, there is a question as to whether defendant’s acceptance of earlier conduct would preclude termination based on later conduct (see Awards.com v. Kinko’s, Inc., 42 AD3d 178, 188-189 [1st Dept 2007], affd 14 NY3d 791 [2010]). Although the no waiver clause may itself be waived (see Paramount Leasehold, L.P. v. 43rd St. Deli, Inc., 136 AD3d 563, 568 [1st Dept 2016]), lv denied in part and dismissed in part 28 NY3d 1024 [2016]), such a waiver “will not be lightly presumed” and is generally determined by the trier of fact (Parlux Fragrances, 204 AD3d at 87). We have considered plaintiff’s remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. Motions List released on: June 28, 2022 By Kern, J.P., Mazzarelli, Gesmer, Oing, Moulton, JJ. 850189/21. 25TH STREET MULTIFAMILY LLC, plf-res, v. 208-14 E. 25TH ST., LLC, STEVEN CROMAN, def-app, CRIMINAL COURT OF THE CITY OF NEW YORK, ET AL., def — An appeal having been taken to this Court from an order of the Supreme Court, New York County, entered on or about May 11, 2022, And defendants-appellants having moved to stay enforcement of the aforesaid order pending hearing and determination of the appeal taken therefrom, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion is denied. By Acosta, P.J., Renwick, Manzanet-Daniels, Gische, Kapnick, JJ. 2022-02209. IN THE MATTER OF BERLIN B. O., A CHILD UNDER EIGHTEEN YEARS OF AGE ALLEGED TO BE NEGLECTED BY SHAKIRA O., res-app, ADMINISTRATION FOR CHILDREN’S SERVICES, pet-res; JUSTINE M. LUONGO, ESQ., THE LEGAL AID SOCIETY, ATTORNEY FOR THE CHILD — Respondent-appellant having moved for leave to prosecute, as a poor person, the appeal taken to this Court from an Order of Disposition of the Family Court, New York County, entered on or about May 05, 2022, for the assignment of counsel, a free copy of the transcript, and for related relief, Now, upon reading and filing the papers with respect to the motion, and the certification of Khadija Foda, Esq., dated May 12, 2022, and due deliberation having been had thereon, it is Ordered that the motion is granted to the extent of (1) assigning, pursuant to Article 18b of the County Law and Section 1120 of the Family Court Act, Daniel Robinson, Esq., 11 Park Place – Suite 711, New York, New York, 10007, Telephone No. 917-830-7529, as counsel for purposes of prosecuting the appeal; (2) directing the Clerk of said Family Court to have transcribed the minutes of the proceedings held therein, for inclusion in the record on appeal, the cost thereof to be charged against the City of New York from funds available therefor1 within 30 days (FCA 1121[7]) of service of a copy of this order upon the Clerk; (3) permitting appellant to dispense with any fee for the transfer of the record from the Family Court to this Court; and (4) directing appellant to perfect this appeal, in compliance with Section 1250.9 of the Practice Rules of the Appellate Division, within 60 days of the filing of the transcripts. Assigned counsel is directed to immediately serve a copy of this order upon the Clerk of the Family Court. The Clerk of the Family Court shall transfer the record upon receipt of this order.
