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By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. 730 J & J LLC, plf-res, v. FILLMORE AGENCY, INC., def- res, KERWICK & CURRAN, INC., OF NEW JERSEY, ap def – (INDEX NO. 5415/01)In an action, inter alia, to recover damages for negligence in procuring insurance coverage, the defendant Kerwick & Curran, Inc., of New Jersey appeals from an order of the Supreme Court, Kings County (Held, J.), dated March 12, 2002, which denied its motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it and the cross claim asserted against it by the defendant Fillmore Agency, Inc. ORDERED that the order is affirmed, with one bill of costs. A motion to dismiss pursuant to CPLR 3211(a)(1) “may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326, citing Leon v. Martinez, 84 NY2d 83, 88; see 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152). The Supreme Court properly found that the appellant failed to submit sufficient evidence conclusively demonstrating that it was not in a relationship “so close as to approach that of privity” with the plaintiff so as to defeat liability to the plaintiff for any negligent failure to provide it with the insurance coverageit requested (Ossining Union Free School Dist. v. Anderson LaRocca Anderson, 73 NY2d 417, 423, quoting Ultramares Corp. v. Louche, 255 NY 170, 182-183; see Credit Alliance Corp. v. Andersen & Co., 65 NY2d 536, 551; Lyons v. Medical Malpractice Ins. Assn., 286 AD2d 711, 712; International Fid. Ins. Co. v. Gaco W., 229 AD2d 471). In light of our determination, we need not reach the parties’ remaining contentions. SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Ritter, J.P.; McGinity, Townes and Mastro, JJ. A & J CORPORATION III d/b/a DUNKIN DONUTS, ET AL., res, v. VW II, L.P., ap (and a third-party action). (INDEX NO. 4589/01)In an action, inter alia, for reapportionment of common charges, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated May 21, 2002, as denied its motion for summary judgment dismissing the complaint and on its counterclaims for common charges due and owing. ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant’s motion which was for summary judgment dismissing so much of the complaint as sought reapportionment of common charges and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. The plaintiffs are tenants of a shopping center owned by the defendant. The lease of each tenant contains a provision requiring payment of a portion of certain common charges based on the percentage of each tenant’s demised grade-level leasable floor space in relation to the total gross grade-level leasable floor space in the shopping center. The plaintiffs commenced this action alleging, inter alia, that the completion of a self-storage facility in the basement of the shopping center that was leased to a new tenant required the defendant to reapportion each plaintiff’s respective share of the subject common charges. Further, they argued, the amount of the common charges levied was unreasonable and exorbitant. Thedefendant counterclaimed against each plaintiff seeking, inter alia, a money judgment for unpaid common charges. The Supreme Court, inter alia, denied the defendant’s motion for summary judgment, finding issues of fact. Each of the leases provides as follows concerning the apportionment of common charges: “In measuring the aggregate gross leasable floor area of the Shopping Center, all areas within the Shopping Center devoted to Lessor’s storage, use, management and operation of the Shopping Center, Lessor’s equipment installations servicing portions of the Shopping Center and office use shall be excluded, as shall areas located in mezzanines, and basement areas.” This language, which is clear and unambiguous, expressly excludes basement areas from the calculation of the aggregate gross leasable floor area of the shopping center for purposes of apportioning common charges. Such an interpretation is in conformity with the calculation of each tenant’s share of common charges based on the tenant’s proportionate share of the “aggregate gross grade level floor area of the Shopping Center” (emphasis added). Thus, the provision is to be enforced as written (see W.W.W. Assocs. v. Giancontieri, 77 NY2d 157; Unisys Corp. v. Hercules Inc., 224 AD2d 365; Federal Deposit Ins. Corp. v. Herald Sq. Fabrics Corp., 81 AD2d 168, 180). The plaintiffs’ argument that this provision may be read to exclude only those basement areas that are dedicated to use by the defendant for the maintenance and operation of the shopping center is contrary to a plain reading of the provision and would render the phrase “as shall areas located in mezzanines, and basement areas” redundant and meaningless, as the provision already excluded “all areas within the Shopping Center” dedicated to the defendant’s use (see generally Two-Guys from Harrison-N.Y. v. S.F.R. Realty Assocs., 63 NY2d 396, 404-405). The plaintiffs do not argue that the mezzanine and the basement were not areas “within the Shopping Center.” Similarly, a plain reading of the leases does not support the plaintiffs’ assertion that there has been an increase in the gross leasable floor area of the shopping center within the meaning of paragraph one of the leases. Accordingly, the plaintiffs are not entitled to a reapportionment of their common charges. However, the defendant failed to proffer evidence to establish prima facie that the unpaid common charges were reasonable (see Atkin’s Waste Materials v. May, 34 NY2d 422, 427; Total Spectrum Mfg. v. Frassetto, 172 AD2d 747; Tantleff v. Truscelli, 110 AD2d 240, 244-245, affd 69 NY2d 769). Thus, the defendant was properly denied summary judgment on its counterclaims. RITTER, J.P., McGINITY, TOWNES and MASTRO, JJ., concur. By Feuerstein, J.P.; Smith, Krausman and Cozier, JJ. AFSHARIMEHR, ETC., a/k/a AFSHARI, ap, v. BARER, ETC., res – (INDEX NO. 27007/97)In an action to recover damages for legal malpractice, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (DeMaro, J.), entered September 19, 2001, which, upon granting the defendant’s oral motion at trial to dismiss the complaint on the grounds of res judicata and collateral estoppel, dismissed the complaint. ORDERED that the judgment is affirmed, with costs. Contrary to the plaintiff’s contention, the legal malpractice action was barred by the defendant attorney’s successful prosecution of a prior action to recover fees for the same legal services that the plaintiff alleges were negligently performed (see Pirog v. Ingber, 203 AD2d 348; Grace & Co. v. Tunstead, Schecter & Torre, 186 AD2d 15). Accordingly, the Supreme Court properly dismissed the complaint. FEUERSTEIN, J.P., SMITH, KRAUSMAN and COZIER, JJ., concur. By Gail Prudenti, P.J.; Feuerstein, McGinity and Miller, JJ. ALLSTATE INSURANCE COMPANY, res, v. DEPASQUALE, ap – (INDEX NO. 9009/00)In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to defend and/or indemnify the defendant in an underlying action entitled Leno v. DePasquale, pending in the Supreme Court, Nassau County, under Index No. 5050/00, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Segal, J.), dated December 24, 2001, which granted the plaintiff’s motion, inter alia, for summary judgment and denied his cross motion for summary judgment declaring that the plaintiff is obligated to defend and indemnify him in the underlying action, and (2) a judgment of the same court, entered January 15, 2002, which, in effect, declared that the plaintiff is not obligated to defend and/or indemnify the defendant in the underlying action. The notice of appeal from the order is also deemed to be a notice of appeal from the judgment (see CPLR 5501[c]). Presiding Justice Prudenti has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the appeal from the order is dismissed; and it is further, ORDERED that the judgment is affirmed; and it is further, ORDERED that one bill of costs is awarded to the plaintiff. The appeal from the intermediate order must be dismissed because the right ofdirect appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1]). The plaintiff established that the allegations contained in the underlying complaint do not constitute an occurrence under the insurance policy it issued to the defendant (see Miller v. Continental Ins. Co., 40 NY2d 675; Syvertsen v. Great Am. Ins. Co., 267 AD2d 854, 856). The plaintiff demonstrated that the policy’s intentional acts exclusion applies to the defendant’s claim (see Allstate Ins. Co. v. Mugavero, 79 NY2d 153; Syvertsen v. Great Am. Ins. Co., supra). The defendant’s remaining contentions are without merit. PRUDENTI, P.J., FEUERSTEIN, McGINITY and H. MILLER, JJ., concur. By Feuerstein, J.P.; McGinity, Miller and Crane, JJ. ALPERT, ap, v. ALPERT, res – (INDEX NO. 19946/00)In an action, in effect, for a judgment declaring that the defendant is obligated to indemnify the plaintiff in an underlying action entitled Alpert v. Alpert, brought in the Supreme Court, New York County, under Index No. 28490/85, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Burke, J.), dated November 27, 2001, which granted the defendant’s motion, inter alia, pursuant to CPLR 3211(a)(4) to dismiss the complaint, and (2) an order of the same court, entered June 13, 2002, which denied his motion for leave to reargue. Justice Crane has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the appeal from the order entered June 13, 2002, is dismissed, as no appeal lies from an order denying reargument; and it is further, ORDERED that the order dated November 27, 2001, is affirmed; and it is further, ORDERED that one bill of costs is awarded to the respondent. The relief which the plaintiff seeks in this action is “substantially the same”(Kent Development Co. v. Liccione, 37 NY2d 899, 901) as the relief which he seeks in a cross complaint in another action pending between the parties. Therefore, the Supreme Court properly granted the defendant’s motion to dismiss the complaint in this action (see CPLR 3211[a][4]; Benenson v. SKEK Assoc., 293 AD2d 694]). FEUERSTEIN, J.P., McGINITY, H. MILLER and CRANE, JJ., concur. By Goldstein, J.P.; Adams, Townes and Crane, JJ. BARATTA, ETC., plf-res, v. HOME DEPOT USA, INC. defs- res, FRAGALA LANDSCAPE CONTRACTING CORP., ap – (INDEX NO. 9505/98)In an action to recover damages for personal injuries, etc., the defendant Fragala Landscape Contracting Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated November 29, 2001, as, upon reargument, adhered to so much of an order dated May 9, 2001, as denied its prior motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. ORDERED that order is modified, on the law, by deleting the provisions thereof which, upon reargument, adhered to so much of the order dated May 9, 2001, as denied those branches of the motion which were for summary judgment dismissing (1) the complaint insofar as asserted against Fragala Landscape Contracting Corp., and (2) so much of the first cross claim of the defendant Home Depot USA, Inc., which was for contribution insofar as asserted against Fragala Landscape Contracting Corp., and substituting therefor provisions, upon reargument, granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. The infant plaintiff Leonard Baratta allegedly was injured when his father slipped and fell on a patch of ice in the parking lot of the defendant Home Depot USA, Inc. (hereinafter Home Depot), causing the shopping cart in which the infant was seated to tip over. The plaintiffs commenced the instant action against, inter alia, Home Depot and FragalaLandscape Contracting Corp. (hereinafter Fragala), the snow removal contractor hired by Home Depot. Home Depot asserted cross claims against Fragala for contribution and contractual and common law indemnification. Fragala established its prima facie entitlement to summary judgment dismissing the plaintiffs’ complaint insofar as asserted against it. In response, the plaintiffs failed to raise a triable issue of fact. A limited contractual undertaking to provide snow removal services generally does not render the contractor liable in tort for the personal injuries of third parties (see Espinal v. Melville Snow Contractors, 98 NY2d 136, 141-142; Javurek v. Gardiner, 287 AD2d 544; Murphy v. M.B. Real Estate Dev. Corp., 280 AD2d 457; Pavlovich v. Wade Assocs., 274 AD2d 382; Girardi v. Bank of New York Co., 249 AD2d 443). Nor is there any evidence that the injured plaintiff detrimentally relied on Fragala’s performance or that its actions “launched a force or instrument of harm” (H.R. Moch Co. v. Rensselaer Water Co., 247 NY 160, 168; see Murphy v. M.B. Real Estate Dev. Corp., supra; Pavlovich v. Wade Assocs., supra at 383). Fragala also established its entitlement to summary judgment dismissing so much of Home Depot’s first cross claim as sought contribution. To sustain its claim for contribution, Home Depot was required to show that Fragala owed it a duty of reasonable care independent of its contractual obligations (see Phillips v. Young Men’s Christian Assn., 215 AD2d 825, 827; cf. Sommer v. Federal Signal Corp., 79 NY2d 540, 551-552), or that a duty was owed to the plaintiffs as injured parties and that a breach of this duty contributed to the alleged injuries (see Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., 125 AD2d 754, 756, affd 71 NY2d 599). Fragala owed no duty of reasonable care to the plaintiffs under the circumstances of this case. Because Home Depot failed to assert an independent duty owed to it by Fragala, the Supreme Court erred in failing to dismiss so much of the first cross claim as sought contribution. However, the Supreme Court correctly denied that branch of Fragala’s motion which was for summary judgment dismissing so much of the first cross claim as sought common-law indemnification, and the second cross claim for contractual indemnification. Fragala failed to establish its entitlement to judgment as a matter of law dismissing that branch of the first cross claim which was for common-law indemnification. A triable issue of fact exists as to whether the plaintiff’s injuries were attributable to the nonperformance of an act that was solely within the province of Fragala (see Mitchell v. Fiorini Landscape, 284 AD2d 313, 314; Murphy v. M.B. Real Estate Dev. Corp., supra at 457-458). Moreover, Fragala failed to sustain its burden in the first instance on the issue of contractual indemnification since a question of fact exists with respect to whether it breached the contract by failing to perform one or more of the services for which Home Depot retained it (see Boskey v. Gazza Properties, 248 AD2d 344, 346). If the plaintiffs are successful against Home Depot for negligent failure to maintain the parking lot, Fragala may be required to indemnify Home Depot (see Coyle v. Long Is. Sav. Bank, 248 AD2d 350, 351; Phillips v. Young Men’s Christian Assn., supra at 827). GOLDSTEIN, J.P., ADAMS, TOWNES and CRANE, JJ., concur. By Santucci, J.P.; Goldstein, Miller and Cozier, JJ. BARR res, v. DEMATTEIS OAK PARK ASSOCIATES, LP ap – (INDEX NO. 10776/99)In an action to recover damages for personal injuries, etc., the defendants Oak Park at Douglaston Unit Owners Association, Inc., and Oak Park at Douglaston Unit Owners Association, Inc., II appeal from so much of (1) an order of the Supreme Court, Queens County (Polizzi, J.), dated February 27, 2002, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and (2) an order of the same court, dated May 6, 2002, as, upon renewal, adhered to the original determination, and the defendants DeMatteis Oak Park Associates, LP, and Leon D. DeMatteis Construction Corp. appeal from so much of the order dated February 27, 2002, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. Justice Howard Miller has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the appeal by Oak Park at Douglaston Unit Owners Association, Inc., and Oak Park at Douglaston Unit Owners Association, Inc., II from the order dated February 27, 2002, is dismissed, as the portion of that order appealed from by those defendants was superseded by the order dated May 6, 2002, made upon renewal; and it is further, ORDERED that the order dated February 27, 2002, is affirmed insofar as appealed from by DeMatteis Oak Park Associates, LP, and Leon D. DeMatteis Construction Corp.; and it is further, ORDERED that the order dated May 6, 2002, is modified, on the law, by deleting the provision thereof, upon renewal, denying that branch of the motion of Oak Park at Douglaston Unit Owners Association, Inc., and Oak Park at Douglaston Unit Owners Association, Inc., II, which was for summary judgment dismissing the complaint insofar as asserted against Oak Park at Douglaston Unit Owners Association, Inc., and substituting therefor a provision, upon renewal, granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, the order dated February 27, 2002, is modified accordingly, the complaint and all cross claims are dismissed insofar as asserted against Oak Park at Douglaston Unit Association, Inc., and the action against the remaining defendants is severed; and it is further, ORDERED that one bill of costs is awarded to the plaintiffs, payable by DeMatteis Oak Park Associates, LP, and Leon D. De Matteis Construction Corp. DeMatteis Oak Park Associates, LP, and Leon D. DeMatteis Construction Corp. (hereinafter collectively DeMatteis) failed to establish their entitlement to judgment as a matter of law on the issue of whether they created a dangerous condition in the driveway where the accident occurred and, if so, whether it was a proximate cause of the accident (see Winegrad v. New York Univ. Med. Center, 64 NY2d 851). Oak Park at Douglaston Unit Owners Association, Inc. (hereinafter Oak Park I), and Oak Park at Douglaston Unit Owners Association, Inc., II (hereinafter Oak Park II) failed to establish as a matter of law that the area where the accident occurred was owned by DeMatteis. The offering plan for Oak Park II indicates that driveways are “common elements” to be maintained by the “Condominium.” The “Condominium” is defined as Oak Park II. Accordingly, it appears that Oak Park II may have had an obligation to maintain the driveway where the accident occurred. However, there is no basis in the record to impose liability upon Oak Park I. The plaintiffs allege that Oak Park II, not Oak Park I, owned the premises where the accident occurred. Surveys in the record show the accident occurred in the Oak Park II portion of the complex where the common properties should have been conveyed by the builder to Oak Park II. Oak Park I and Oak Park II have one site manager, Henry Rafferty, and one unified staff. Oak Park I and Oak Park II were jointly responsible for snow removal and cleaning. However, there is no evidence that Oak Park I assumed “a comprehensive and exclusive property maintenance obligation intended to displace the duty of [the] landowner to maintain the property in a safe condition” (Telford v. Laro Maintenance Corp., 288 AD2d 302, 303). Therefore, Oak Park I cannot be held liable based upon the theory that it assumed the maintenance obligations of Oak Park II. In view of the foregoing, Oak Park I was entitled to summary judgment dismissing the complaint and all cross claims insofar as asserted against it. SANTUCCI, J.P., GOLDSTEIN, H. MILLER and COZIER, JJ., concur. By Feuerstein, J.P.; Smith, Cozier and Mastro, JJ. BHOJ res, v. BARGOLD STORAGE SYSTEMS, LLC aps def – (INDEX NO. 17465/98)In an action to recover damages for malicious prosecution, false arrest, and intentional infliction of emotional distress, the defendants Bargold Storage Systems, LLC, Vestpro Management Corporation, Jay Paretsky, and Gerald Goldman appeal from an order of the Supreme Court, Kings County (Barasch, J.), dated March 21, 2002, which denied their motion for leave to renew their prior motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with costs. A motion for leave to renew is based upon new facts which were previously unavailable (see CPLR 2221; Nelson v. RPH Constr. Corp., 278 AD2d 465; Bulis v. Di Lorenzo, 142 AD2d 707). The Supreme Court properly denied the appellants’ motion for leave to renew their prior motion for summary judgment. Contrary to the appellants’ contention, the plaintiffs’ deposition testimony did not establish a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853), and consequently did not constitute “new facts that would change the prior determination” (CPLR 2221[e]). The appellants’ remaining contentions are without merit. FEUERSTEIN, J.P., SMITH, COZIER and MASTRO, JJ., concur. By Florio, J.P.; Feuerstein, Krausman and Crane, JJ. BIGLER, ap, v. BIGLER, res – (INDEX NO. 26732/93)In a matrimonial action in which the parties were divorced by judgment dated May 13, 1994, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Marks, J.H.O.), dated March 21, 2001, as, after a hearing, granted those branches of the defendant’s motion which were to direct him to pay child support arrears in the amount of $55,525 for the period prior to October 17, 2000, and $30,979.74 for the period from October 17, 2000, through March 21, 2001, and to pay future child support based on an imputed annual income of $100,000. By decision and order dated November 18, 2002, this court remitted the matter to the Supreme Court, Kings County, to state the factors considered and the reasons for its calculation of child support arrears, and the appeal was held in abeyance in the interim (see Bigler v. Bigler, 299 AD2d 435). The Supreme Court has now filed its report. ORDERED that the order is modified, on the facts, (1) by deleting the provision thereof directing the plaintiff to pay the defendant $55,525 in child support arrears for the period prior to October 17, 2000, and substituting therefor a provision directing the plaintiff to pay the defendant $48,000 in child support arrears for that period, and (2) by deleting the provision thereof directing the plaintiff to pay the defendant $30,979.74 in child support arrears for the period from October 17, 2000, through March 21, 2001, and substituting therefor a provision directing the plaintiff to pay the defendant $7,040.85 in child support arrears for that period; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. In her report, Judical Hearing Officer Marks (hereinafter the JHO) acknowledged that neither a transcript of the hearing nor her original notes and calculations regarding the arrears awarded for the time period prior to October 17, 2000, were available toher to assist with review upon remittitur. Consequently, she suggested that arrears be set at $48,650, the amount requested by the plaintiff upon summation. However, we find that arrears for the relevant period are properly set at $48,000, the amount advocated by the plaintiff on appeal, as the defendant did not oppose this request. The JHO also explained that the arrears for the time period from October 17, 2000, through March 12, 2001, were erroneously set as though her monthly order had been a weekly order. Accordingly, arrears for that period are set at $7,040.85, to correct the Supreme Court’s computation error. FLORIO, J.P., FEUERSTEIN, KRAUSMAN and CRANE, JJ., concur. By Krausman, J.P.; McGinity, Schmidt and Mastro, JJ. C. K. REHNER, INC., res-ap, v. ARNELL CONSTRUCTION CORP., ap- res – (INDEX NO. 20183/95)In an action to recover damages for breach of contract, the defendant appeals from so much of a judgment of the Supreme Court, Queens County (Kitzes, J.), entered October 18, 2001, as, upon granting the plaintiff’s oral application pursuant to CPLR 4401 for judgment as a matter of law at the close of evidence, is in favor of the plaintiff and against it in the principal sum of $70,000, and the plaintiff cross-appeals from the same judgment. ORDERED that the cross appeal is dismissed as withdrawn; and it is further, ORDERED that the judgment is reversed insofar as appealed from, on the law, the plaintiff’s oral application for judgment as a matter of law pursuant to CPLR 4401 is denied, and the matter is remitted to the Supreme Court, Queens County, for a new trial, with costs to abide the event. In the spring of 1990 the New York City School Construction Authority (hereinafter the Construction Authority) awarded the defendant, Arnell Construction Corp., a contract to renovate a high school in Brooklyn. Under the terms of the contract, the Construction Authority assumed the responsibility of procuring general liability and workers’ compensation insurance coverage for the defendant and all subcontractors working on the project. It is undisputed that the plaintiff, C. K. Rehner, Inc., successfully bid to become the plumbing subcontractor on the school renovation project, and that its winning bid price was $1,850,000. However, the defendant claims that the plaintiff agreed to reduce its price by the amount it would save because of the Construction Authority’s assumption of insurance costs. Although the plaintiff and the defendant never executed a written contract, the plaintiff performed all of the plumbing work required for the renovation project, as well as certain extra work approved by the Construction Authority. After the project was completed, the defendant refused to pay the plaintiff’s final invoice, primarily upon the ground that it was entitled to a credit of approximately $65,000, which would reflect the plaintiff’s insurance savings. The plaintiff subsequently commenced this breach of contract action against the defendant seeking, inter alia, to recover payment of its final invoice. At trial, the parties presented conflicting testimony as to whether the plaintiff’s president had indeed agreed to give the defendant a credit for the cost of insurance coverage. However, at the close of evidence, the trial court granted the plaintiff’s motion for judgment as a matter of law pursuant to CPLR 4401, finding that there was no proof that the plaintiff had agreed to give the defendant a credit for the cost of insurance. The defendant appeals. A motion for judgment as a matter of law pursuant to CPLR 4401 may be granted where the trial court determines that, upon the evidence presented, there is no rational process by which the jury could base a finding in favor of the nonmoving party (see Szczerbiak v. Pilat, 90 NY2d 553, 556). In considering such a motion, the trial court must “afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” (Szczerbiak v. Pilat, supra at 556). The motion must be denied where the facts are in dispute, where different inferences may be drawn from the evidence, or where the credibility of the witnesses is in question (see Noyes v. Galen, 267 AD2d 365; Marrero v. 720 DeGraw Funding Corp., 199 AD2d 248; Dolitsky v. Bay Isle Oil Co., 111 AD2d 366). Here, since the parties offered conflicting evidence as to whether the plaintiff’s president agreed to reduce the bid price to reflect the insurance savings, a disputed factual question exists which requires a credibility determination to be made. Accordingly, it cannot be said that there is no rational process by which the jury could have found for the defendant had the case been submitted to it (see Fenton v. Ives, 229 AD2d 704). Moreover, contrary to the plaintiff’s contention, its alleged agreement to give the defendant a credit equal to the sum it would have expended if it had been required to obtain its own workers’ compensation and liability insurance is sufficiently definite to be enforceable (see Cobble Hill Nursing Home v. Henry & Warren Corp., 74 NY2d 475, cert denied 498 US 816; Abrams Realty Corp. v. Elo, 279 AD2d 261; Kenneth D. Laub & Co. v. Bear Stearns Cos., 262 AD2d 36; Salerno v. Leica, Inc., 258 AD2d 896). Under these circumstances, the Supreme Court improperly directed a verdict in the plaintiff’s favor. KRAUSMAN, J.P., McGINITY, SCHMIDT and MASTRO, JJ., concur. By Altman, J.P.; Florio, Miller and Adams, JJ. CRANSTON, ETC. aps, v. NYACK PUBLIC SCHOOLS, res – (INDEX NO. 5796/99)In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Rockland County (Bergerman, J.), dated April 3, 2002, which granted the defendant’s motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with costs. The infant plaintiff was placed by the defendant in a special education class for children with behavioral problems. On February 11, 1999, he and two other students were being instructed and supervised by at least one teacher and one teaching assistant. At some point in time, two of the students, “Drew” and “Michelle,” were interacting. According to the infant plaintiff’s deposition testimony, he went over to “Drew” and asked him to stop bothering “Michelle.” “Drew” responded by suddenly and without warning kicking the infant plaintiff in the chest, hitting and breaking the infant plaintiff’s “medi port” and injuring him. The Supreme Court granted the defendant’s motion for summary judgment dismissing the complaint. We affirm. The defendant made out a prima facie case demonstrating its entitlement to summary judgment. It showed that the level of supervision it provided for the students was at least that which a prudent parent would have provided and was in accordance with the applicable State and Federal regulations (see Mirand v. City of New York, 84 NY2d 44). Italso showed that the incident happened so suddenly that no amount of supervision could have prevented it (see Ancewicz v. Western Suffolk BOCES, 282 AD2d 632; Marshall v. Cortland Enlarged City School Dist., 265 AD2d 782). Finally, we agree with the defendant that the affidavit of the plaintiffs’ expert was speculative and conclusory, and thus could not be relied upon (see Speirs v. Dick’s Clothing & Sporting Goods, 268 AD2d 581). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint (see generally Alvarez v. Prospect Hosp., 68 NY2d 320). ALTMAN, J.P., FLORIO, H. MILLER and ADAMS, JJ., concur. By Feuerstein, J.P.; Smith, Miller and Cozier, JJ. CRAWFORD, ap, v. MCBRIDE, ETC., res – (INDEX NO. 8211/99)In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Orange County (McGuirk, J.), dated March 20, 2002, which granted the defendant’s motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with costs. For a defendant in a legal malpractice case to succeed on a motion for summary judgment, evidence must be presented in admissible form establishing that the plaintiff is unable to prove at least one of the essential elements (see Ostriker v. Taylor, Atkins & Ostrow, 258 AD2d 572; Ippolito v. McCormack, Damiani, Lowe & Mellon, 265 AD2d 303). The defendant met her burden of establishing entitlement to judgment as a matter of law by demonstrating that the plaintiff would be unable to establish that John McBride’s negligence, if any, was the proximate cause of the plaintiff’s damages, and that, but for such negligence he would have prevailed in the underlying action (see Shopsin v. Siben & Siben, 268 AD2d 578). The plaintiff, in opposition, failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment. The plaintiff’s remaining contentions are without merit. FEUERSTEIN, J.P., SMITH, H. MILLER and COZIER, JJ., concur. By Gail Prudenti, P.J.; Feuerstein, McGinity and Miller, JJ. CURRADO, ETC. res, v. WALDBAUM, INC., def third-party plf-ap def; UNARCO COMMERCIAL PRODUCTS, ETC., third-party def – (INDEX NO. 12401/95)In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Gigante, J.), dated March 7, 2002, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it. Presiding Justice Prudenti has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff Alexa Marie Currado (hereinafter the infant plaintiff) was injured when a shopping cart in which she was riding overturned in a store operated by the defendant Waldbaum, Inc. (hereinafter Waldbaum). The plaintiffs commenced this action against Waldbaum and the infant plaintiff’s grandmother, who was pushing the shopping cart. Waldbaum then commenced a third-party action against Unarco Commercial Products (hereinafter Unarco), a company that supplied it with shopping carts. As the moving party, Waldbaum met its initial burden of establishing its entitlement to summary judgment dismissing the complaint insofar as asserted against it. However, the affidavit submitted by the plaintiffs’ expert in opposition to the motion was sufficient to raise a triable issue of fact as to whether a reasonable inspection by Waldbaum of its shopping carts would have revealed the alleged defect (see Albergo v. Deer Park Meat Farms, 138 AD2d 656; cf. Cataldo v. Waldbaum, Inc., 244 AD2d 446). Accordingly, the Supreme Court properly denied Waldbaum’s motion for summary judgment. Unarco contends that this court should search the record and dismiss the third-party complaint and all claims asserted against it. This court is authorized to search the record and grant summary judgment to a nonmoving and nonappealing party with respect to an issue that was the subject of the motion before the Supreme Court (see Dunham v. Hilco Constr. Co., 89 NY2d 425, 429-430; Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 NY2d 106; Image Clothing v. State Natl. Ins. Co., 291 AD2d 377, 378). As the record reveals that no motion for summary judgment was made relating to the merits of the third-party action, we do not address Unarco’s contention (see Campos v. New York City Hous. Auth., 295 AD2d 386, 387-388; Aguirre v. Castle Am. Constr., 278 AD2d 348, 349). PRUDENTI, P.J., FEUERSTEIN, McGINITY and H. MILLER, JJ., concur. ALEXA MARIE CURRADO, ETC. res, v. WALDBAUM, INC., def third-party plf-ap def; UNARCO COMMERCIAL PRODUCTS, etc., third-party defendant. (Index No. 12401/95) – Motion by the respondents on an appeal from an order of the Supreme Court, Richmond County, dated March 7, 2002, inter alia, to strike Point II of the brief of the third-party defendant. By decision and order on motion of this court dated August 26, 2002, the branch of the motion which was to strike Point II of the brief was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof. Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is ORDERED that the branch of the motion which is to strike Point II of the brief of the third-party defendant is denied as academic in light of our determination of the appeal. PRUDENTI, P.J., FEUERSTEIN, McGINITY and H. MILLER, JJ., concur. By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. DICKSTEIN aps, v. DOGALI, ETC., def, HOSPITAL FOR JOINT DISEASES, res – (INDEX NO. 7037/97)In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Levine, J.), dated December 7, 2001, as, upon reargument, granted the motion of the defendant Hospital for Joint Diseases for summary judgment dismissing the complaint insofar as asserted against it and denied their cross motion for leave to amend their bill of particulars. ORDERED that the order is modified, on the law, by (1) deleting the provision thereof granting those branches of the motion which were for summary judgment dismissing the first cause of action alleging medical malpractice and the third cause of action alleging loss of consortium and substituting therefor a provision denying those branches of the motion, and (2) deleting the provision thereof denying the cross motion and substituting therefor a provision granting the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. The Supreme Court erred in dismissing the first cause of action alleging medical malpractice and the third cause of action alleging loss of consortium since the defendant Hospital for Joint Diseases (hereinafter the Hospital) failed to meet its burden of establishing, as a matter of law, that it was not vicariously liable for the conduct of the defendant Dr. Michael Dogali in providing post-operative care to the injured plaintiff (see Kavanaugh v. Gonzalez, 71 NY2d 535; Hill v. St. Claire Hosp., 67 NY2d 72; Cornell v. Hayden, 83 AD2d 30; Graddy v. New York Med. Coll., 19 AD2d 426). Summary judgment was properly granted to the Hospital dismissing the second cause of action alleging medical malpractice based on lack of informed consent. In response to the Hospital’s demonstration of its entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact as to whether the Hospital failed to disclose information necessary to make a knowledgeable evaluation and whether a reasonably prudent person in the patient’s position would not have undergone the procedure if he or she had been fully informed (see Public Health Law 2805-d; Faulknor v. Schnayerson, 273 AD2d 271; Dunlop v. Sivaraman, 272 AD2d 570; Evans v. Holleran, 198 AD2d 472). The Supreme Court erred in denying the plaintiffs’ cross motion for leave to amend their bill of particulars by enlarging the date of the alleged negligence from September 14, 1994, to a period of days spanning from September 14, 1994, to October 6, 1994. Other portions of the bill of particulars clearly gave notice to the Hospital that the alleged acts of negligence occurred during that period of time when the injured plaintiff was receiving her post-operative care at the Hospital (see Tate v. Colabello, 58 NY2d 84; Perricone v. City of New York, 96 AD2d 531, affd 62 NY2d 661; Cirelli v. Victory Mem. Hosp., 45 AD2d 856). SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Santucci, J.P.; Schmidt, Townes and Mastro, JJ. DURANT, res, v. BROOKLYN MEDICAL GROUP, P.C., ap – (INDEX NO. 7330/98)In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Kings County (Harkavy, J.), dated June 25, 2001, which, upon a jury verdict awarding the plaintiff $500,000 for past pain and suffering, $12,600 for past loss of earnings, $500,000 for future pain and suffering, $59,472 for past medical expenses, and $59,472 for future medical expenses, is in favor of the plaintiff and against it. ORDERED that the judgment is modified, on the facts and as an exercise of discretion, by deleting the provisions thereof awarding the plaintiff $500,000 for past pain and suffering, $500,000 for future pain and suffering, and $59,472 for past medical expenses, and granting a new trial as to those damages only; as so modified, the judgment is affirmed, with costs to the defendant, unless within 30 days after service upon the plaintiff of a copy of this decision and order, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to decrease the verdicts as to damages for past pain and suffering from the sum of $500,000 to the sum of $75,000, as to damages for future pain and suffering from the sum of $500,000 to the sum of $100,000, and as to damages for past medical expenses from $59,472 to $2,330, and to the entry of an appropriate amended judgment; in the event that the plaintiff so stipulates, then the judgment, as so decreased and amended is affirmed, without costs or disbursements. Based upon the evidence presented at trial, the awards of damages for past and future pain and suffering deviated from what would be reasonable compensation to the extent indicated (see Stone v. Hidle, 266 AD2d 705; Tariq v. Miller, 240 AD2d 395; Sescila v. Garine, 225 AD2d 684; Walsh v. Kings Plaza Replacement Serv., 239 AD2d 408). Moreover, the plaintiff failed to produce evidence at trial to support her claim for past medical expenses except to the extent indicated herein (see Toppin v. Capan Contraction Corp., 251 AD2d 493). The defendant’s remaining contentions are without merit. SANTUCCI, J.P., SCHMIDT, TOWNES and MASTRO, JJ., concur. By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. ELRAC, INC., d/b/a ENTERPRISE RENT-A-CAR, ap, v. REA BELESSIS, res – (INDEX NO. 25882/99)In an action, inter alia, to recover damages for breach of a commercial lease, the plaintiff appeals (1) from the findings of fact and conclusions of law of the Supreme Court, Suffolk County (Catterson, J.), dated January 18, 2002, and (2), as limited by its brief, from so much of a judgment of the same court entered February 19, 2002, as, in effect, dismissed the complaint and is in favor of the defendant and against it on the counterclaim on the issue of liability. ORDERED that the appeals are dismissed, with costs. The appeal from the Supreme Court’s findings of fact and conclusions of law dated January 18, 2002, must be dismissed as no appeal lies therefrom (see Matter of County of Westchester v. O’Neill, 191 AD2d 556; Benedetto v. O’Grady, 10 AD2d 628). The appeal from the judgment must also be dismissed. As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in a prior appeal that was dismissed for failure to prosecute, although we have the inherent jurisdiction to do so (see Rubeo v. National Grange Mut. Ins. Co., 93 NY2d 750; Bray v. Cox, 38 NY2d 350). Here, the appellant failed to perfect an appeal from an order and interlocutory judgment of the Supreme Court, Suffolk County, in this action, dated November 13, 2001, which granted the defendant’s motion for summary judgment on her counterclaim and for summary judgment dismissing the complaint, and denied the appellant’s cross motion for summary judgment on the complaint. That appeal (Appellate Division DocketNo. 2001-10592) was dismissed by decision and order on motion of this court dated August 7, 2002, for failure to perfect in accordance with the rules of this court. The dismissal of that appeal constituted an adjudication on the merits with respect to all issues which could have been reviewed therein, and we find no basis to review the same issues on this appeal (see Rubeo v. National Grange Mut. Ins. Co., supra; Bray v. Cox, supra). SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. ELGENDY, res, v. PILPEL, ap def – (INDEX NO. 29292/01)In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated May 29, 2002, which granted the plaintiff’s motion for summary judgment on the issue of liability. ORDERED that the order is affirmed, with costs. The plaintiff allegedly sustained personal injuries when he was struck by a vehicle operated by the defendant. The plaintiff moved for summary judgment on the issue of liability. In opposition to the plaintiff’s motion, the defendant alleged that the accident occurred because her brakes failed. The Supreme Court granted the plaintiff’s motion. We affirm. The plaintiff established, prima facie, his entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). In opposition, the defendant failed to come forward with evidence showing that a brake problem was unanticipated and that she had exercised reasonable care to keep the brakes in good working order (see Stanisz v. Tsimis, 96 AD2d 838; cf. Schuster v. Amboy Bus Co., 267 AD2d 448). Therefore, contrary to the defendant’s contention, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the issue of liability. SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. FARGO, ap, v. SOUTH ISLAND ORTHOPAEDIC GROUP, P.C. res – (INDEX NO. 10309/00)In an action to recover damages for medical malpractice, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Joseph, J.), dated March 22, 2002, which granted the defendants’ motion for summary judgment dismissing the complaint, and dismissed the complaint. ORDERED that the order and judgment is affirmed, with costs. Contrary to the plaintiff’s contention, the Supreme Court properly granted the defendants’ motion for summary judgment. The defendants established a prima facie case through the affirmation of their expert witness that the treatment provided to the plaintiff fell within accepted standards of orthopedic care (see Alvarez v. Prospect Hosp., 68 NY2d 320; Fick v. Hodes, 298 AD2d 489, 490; Eisen v. Mather Mem. Hosp., 278 AD2d 272; Heshin v. Levitt, 273 AD2d 442; O’Shaughnessy v. Hines, 248 AD2d 687, 688). The affirmation of the plaintiff’s expert submitted in opposition to the defendants’ motion failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., supra; Fick v. Hodes, supra; Ventura v. Beth Israel Med. Ctr., 297 AD2d 801, 803; Wilson v. Buffa, 294 AD2d 357, 358, lv denied 98 NY2d 611; O’Shaughnessy v. Hines, supra). The plaintiff’s remaining contentions are without merit. SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Ritter, J.P.; McGinity, Townes and Mastro, JJ. FELDMAN aps, v. RICH, res – (IND. NO. 33118/01)In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Johnson, J.), dated June 13, 2002, as denied their motion for summary judgment on the issue of liability and granted that branch of the defendant’s cross motion which was for certain additional disclosure. ORDERED that the order is modified, on the law, by deleting the provision thereof denying the motion for summary judgment on the issue of liability, and substituting therefor a provision granting the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs. The plaintiffs allegedly were injured when the vehicle in which they were driving was struck by a vehicle being driven by the defendant in the opposite direction as the defendant attempted to make a left turn across the plaintiffs’ path of travel at an intersection. In opposition to the plaintiffs’ prima facie demonstration of entitlement to judgment as a matter of law on the issue of liability, the defendant failed to raise a triable issue of fact that the plaintiffs may have been contributorily liable in the happening of the accident (see Zambrano v. Seok, 277 AD2d 312; Loweth v. Cusack, 273 AD2d 283; Vehicle and Traffic Law � 1141, cf. Stiles v. County of Dutchess, 278 AD2d 304, 305). The plaintiffs’ remaining contentions are without merit. RITTER, J.P., McGINITY, TOWNES and MASTRO, JJ., concur. By Altman, J.P.; Miller, McGinity, Schmidt and Rivera, JJ. FEUER, res, v. VERNON MANOR CO-OPERATIVE APARTMENTS, SECTION I, INC. ap – (INDEX NO. 24930/99)In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated November 9, 2001, as granted the plaintiff’s motion to vacate an order of the same court, dated June 29, 2001, granting that branch of their motion which was for summary judgment dismissing the complaint, upon her failure to appear for oral argument, and, upon vacating the order dated June 29, 2001, denied that branch of their prior motion which was for summary judgment dismissing the complaint. ORDERED that the order is modified by deleting the provision thereof denying that branch of the defendants’ prior motion which was for summary judgment dismissing the complaint, and substituting therefor a provision granting that branch of the motion and dismissing the complaint; as so modified, the order is affirmed insofar as appealed from, with costs to the appellants. Under the circumstances of this case, the Supreme Court properly granted the plaintiff’s motion to vacate the order entered upon her failure to appear for oral argument. However, the defendants established their entitlement to judgment as a matter of law by demonstrating that they neither created nor had actual or constructive notice of the substanceon which the plaintiff allegedly slipped and fell (see Kane v. Human Servs. Ctr., 186 AD2d 539). In opposition to the motion, the plaintiff did not contend that the defendants had actual or constructive notice of the substance, and failed to submit evidence sufficient to raise a triable issue of fact as to whether they created the alleged condition (see Raimo v. Brown, 249 AD2d 530; Schwartz v. Mittelman, 220 AD2d 656; Kane v. Human Servs. Ctr., supra). Consequently, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint. ALTMAN, J.P., S. MILLER, McGINITY, SCHMIDT and RIVERA, JJ., concur. By Feuerstein, J.P.; Smith, Friedmann and Adams, JJ. FICARRA, res-ap, v. SECURITY MUTUAL INSURANCE CO. aps-res – (INDEX NO. 31934/96)In an action, inter alia, to recover damages for the negligent processing of an application for a homeowner’s insurance policy, the defendant Security Mutual Insurance Co. appeals from so much of an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated January 15, 2002, as denied its motions for judgment as a matter of law, made at the close of the plaintiff’s case, and to set aside that branch of a jury verdict finding it 10 percent at fault, the defendant XL Brokerage of Patchogue, Inc., appeals from so much of the same order as denied its motions for judgment as a matter of law, made at the close of the plaintiff’s case, and to set aside that branch of the verdict finding it 40 percent at fault, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as denied his motions to dismiss certain affirmative defenses asserted by the defendant Security Mutual Insurance Co. and to set aside that branch of the verdict finding Security Mutual Insurance Co. only 10 percent at fault. Justice Friedmann has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the order is modified, on the law, by (1) deleting the first decretal paragraph provision thereof, and (2) deleting the provision thereof denying the motion of the defendant Security Mutual Insurance Co. for judgment as a matter of law, and substituting therefor a provision granting that motion; as so modified, the order is affirmed, with one bill of costs to the defendant Security Mutual Insurance Co., payable by the plaintiff, the complaint is dismissed insofar as asserted against Security Mutual Insurance Co., the actionagainst the defendant XL Brokerage of Patchogue, Inc., is severed, and the matter is remitted to the Supreme Court, Suffolk County for a new trial on the issue of the apportionment of fault. The defendant Security Mutual Insurance Co. (hereinafter Security) issued a homeowner’s policy to the plaintiff. When the plaintiff made a claim for losses due to a fire, Security disclaimed coverage based on certain misrepresentations in the policy application. In the action at bar to recover under the policy for his losses, the plaintiff did not dispute that the application contained inaccurate information. However, he claimed that the defendant XL Brokerage of Patchogue, Inc. (hereinafter XL) filled out his policy application with inaccurate information after he executed a blank policy application form and orally provided XL with the correct information. The plaintiff proceeded on the theory that XL and Security were negligent in processing his application. Accordingly, the verdict sheet asked the jury to determine whether the plaintiff, XL, and Security were negligent and, if so, to apportion fault. The jury returned a verdict finding the plaintiff 50 percent at fault, XL 40 percent at fault, and Security 10 percent at fault. The Supreme Court properly denied XL’s motion for judgment as a matter of law at the close of the plaintiff’s case, and its motion to set aside the verdict. Based on the plaintiff’s testimony regarding the circumstances surrounding his application for the policy, it cannot be said that “there is simply no valid line of reasoning and permissible inferences” which could lead a rational jury to find that XL was negligent to some extent (Cohen v. Hallmark Cards, 45 NY2d 493, 499; see also Shpritzman v. Strong, 248 AD2d 524). Furthermore, the verdict with respect to the liability of XL was not against the weight of the evidence since the jury could have reached its verdict on a fair interpretation of the evidence (see Shpritzman v. Strong, supra; Nicastro v. Park, 113 AD2d 129, 132-134). However, the Supreme Court erred in denying Security’s motion for judgment as a matter of law at the close of the plaintiff’s case. To establish a prima facie case of negligence, a plaintiff must demonstrate, among other things, a duty owed by the defendant to the plaintiff and a breach of such duty (see Cronin v. Middle Country Cent. School. Dist., 267 AD2d 269). The plaintiff failed to present sufficient evidence to establish a breach of a duty owed by Security to him in processing his policy application. The plaintiff chose to try his case against Security on a theory of negligence. He consented to the submission of a verdict sheet which, insofar as it concerned Security, was limited to the issue of whether Security was negligent. Therefore, the plaintiff cannot argue on appeal that Security was liable as a matter of law on an alternative breach of contract theory, and we need not address the parties’ arguments regarding Security’s affirmative defenses to a breach of contract claim (see Najjar Indus. v. City of New York, 68 NY2d 943; see also Martin v. City of Cohoes, 37 NY2d 162). Accordingly, since the complaint insofar as asserted against Security should have been dismissed and the action against XL severed, the matter is remitted to the Supreme Court for a new trial on the issue of the apportionment of fault between the plaintiff and XL (see Placakis v. City of New York, 289 AD2d 551). FEUERSTEIN, J.P., SMITH, FRIEDMANN and ADAMS, JJ., concur. By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. FISCO, ETC., ap, v. PROVIDENT WASHINGTON INSURANCE COMPANY, res – (INDEX NO. 8657/01)In an action pursuant to Insurance Law � 3420(b) to recover the amount of a judgment obtained against the defendant’s insured, the plaintiff appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated December 7, 2001, which granted the defendant’s motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated. The plaintiff argues that the defendant insurer had a duty to provide him with notice of its disclaimer. Further, since the defendant failed to serve the plaintiff with a notice of disclaimer, under Insurance Law � 3420(d) it is now estopped from disclaiming coverage. Insurance Law � 3420(d) requires an insurer disclaiming liability to give timely written notice of the disclaimer to both the insured and the injured party. Failure to give notice to the injured party will preclude an effective disclaimer of coverage (see Markevics v. Liberty Mutual Ins. Co., 97 NY2d 646; Matter of Everready Ins. Co. v. Dabach, 176 AD2d 879; John v. Centennial Ins. Co., 91 AD2d 1104). The defendant insurer claims that it mailed a copy of the disclaimer to the plaintiff’s former attorney, while the plaintiff asserts that neither he nor his former attorneyever received it. Thus, there is a question of fact as to whether the disclaimer was ever sent to the injured plaintiff or his attorney. SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Gail Prudenti, P.J.; Feuerstein, McGinity and Miller, JJ. FORD MOTOR CREDIT COMPANY, res, v. DOLLINGER, ap – (INDEX NO. 707/01)In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Orange County (Owen, J.), dated December 17, 2001, which granted the plaintiff’s motion for summary judgment on the issue of liability and denied his cross motion for leave to amend his answer. Presiding Justice Prudenti has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the order is affirmed, with costs. The plaintiff made a prima facie showing of entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 NY2d 557). In opposition, the defendant failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). While leave to amend a pleading should be freely given (see CPLR 3025[b]), the decision as to whether to grant such leave is generally left to the sound discretion of the court (see Edenwald Contracting Co. v. City of New York, 60 NY2d 957, 959; Branch v. Abraham & Strauss Dept. Store, 220 AD2d 474) and its determination will not be lightly set aside (see Beuschel v. Malm, 114 AD2d 569). The Supreme Court’s determination to deny the defendant’s cross motion for leave to amend the answer was a provident exercise of discretion (see Matter of Goggins, 231 AD2d 634, 635; Caruso v. Anpro, Ltd. 215 AD2d 713). The defendant’s remaining contentions are without merit. PRUDENTI, P.J., FEUERSTEIN, McGINITY and H. MILLER, JJ., concur. By Feuerstein, J.P.; Smith, Townes and Cozier, JJ. GALLO WINE DISTRIBUTORS, LLC, d/b/a PREMIER WINE & SPIRITS, ap, v. MILLENNIUM LIQUOR CORP., ETC. res – (INDEX NO. 12307/01)In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated October 23, 2001, which denied its motion for summary judgment. ORDERED that the order is modified by deleting the provision thereof denying that branch of the motion which was for summary judgment on the first cause of action and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Queens County, for an inquest as to damages in accordance herewith. The plaintiff established its entitlement to judgment as a matter of law on its first cause of action to recover damages for breach of contract for goods sold and delivered. In opposition, the defendants failed to submit sufficient evidence to raise a triable issue of fact with regard to the existence of a contract and the default thereon (see Zuckerman v. City of New York, 49 NY2d 557). The defendants’ assertion regarding the quality of the products delivered can be resolved at the inquest on damages. The plaintiff’s remaining contentions are without merit. FEUERSTEIN, J.P., SMITH, TOWNES and COZIER, JJ., concur. By Feuerstein, J.P.; Smith, Townes and Cozier, JJ. GALLO WINE DISTRIBUTOR, LLC, d/b/a PREMIER WINE & SPIRITS, ap, v. E.A.R. LIQUOR CORP., ETC. res – (INDEX NO. 12305/01)In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Golar, J.), dated November 20, 2001, which denied its motion for summary judgment. ORDERED that the order is modified by deleting the provision thereof denying that branch of the motion which was for summary judgment on the first cause of action and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Queens County, for an inquest as to damages in accordance herewith. The plaintiff established its entitlement to judgment as a matter of law on its first cause of action to recover damages for breach of contract for goods sold and delivered. In opposition, the defendants failed to submit sufficient evidence to raise a triable issue of fact with regard to the existence of a contract and the default thereon (see Zuckerman v. City of New York, 49 NY2d 557). The defendants’ assertion regarding the quality of the products delivered can be resolved at the inquest on damages. The plaintiff’s remaining contentions are without merit. FEUERSTEIN, J.P., SMITH, TOWNES and COZIER, JJ., concur. By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. GARCIA res, v. U-HAUL CO., INC., ETC., ap – (INDEX NO. 27867/98)In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated January 31, 2002, as denied its cross motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff Grisel Garcia allegedly tripped over, and fell onto, a metal beam lying on the second floor of a U-Haul storage facility in Brooklyn. The defendant moved for summary judgment, claiming that it neither created nor had actual or constructive notice of the allegedly dangerous condition. The Supreme Court denied the motion. We affirm. It is well established that a plaintiff in a slip and fall case must demonstrate that the defendant either created the defective condition or had actual or constructive notice of it (see e.g. Goldman v. Waldbaum, Inc., 248 AD2d 436). A defendant who has actual knowledge of a recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition (see Freund v. Ross-Rodney Hous. Corp., 292 AD2d 341; Osorio v. Wendell Terrace Owners Corp., 276 AD2d 540; McLaughlan v. Waldbaums, Inc., 237 AD2d 335). Here a customer service representative at the facility testified that he had observed beams on the floor “once in a while,” then stated that he saw beams on the ground or broken off about once or twice a month. Under such circumstances, a trier of factcould reasonably infer that the defendant had actual notice of such a recurring condition. Therefore, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. GOMES, res, v. GOMES, ap – (INDEX NO. 30544/96)In a matrimonial action in which the parties were divorced by judgment entered January 13, 1998, the defendant appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Suffolk County (McNulty, J.), dated July 31, 2001, as denied his cross motion to reform the parties’ stipulation of settlement and granted those branches of the plaintiff’s motion which were to enforce the parties’ stipulation of settlement to the extent of directing entry of a judgment in stated sums for arrears in maintenance, life insurance premiums, and mortgage payments, and for an award of an attorney’s fee, and (2) an amended order of the same court, dated August 29, 2001, as granted the same relief. ORDERED that the appeal from the order dated July 31, 2001, is dismissed, as that order was superseded by the order dated August 29, 2001; and it is further, ORDERED that the order dated August 29, 2001, is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff’s motion which were to enforce the parties’ stipulation of settlement to the extent of directing entry of a judgment for arrears in life insurance premiums, and for an award of an attorney’s fee; as so modified, the order is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith; and it is further, ORDERED that one bill of costs is awarded to the plaintiff. In 1996 the parties entered into a stipulation of settlement (hereinafter the stipulation) which was incorporated but not merged into the judgment of divorce. The stipulation provided, inter alia, that the defendant would pay the plaintiff maintenance in the sum of $1,000 per week and maintain certain life insurance policies which were listed in the stipulation. The parties disagree as to whether the stipulation also required the defendant to make the mortgage payments on the plaintiff’s residence in Florida and whether the stipulation entitled the plaintiff to proceeds from the sale of one of the defendant’s business entities, named “Kel Car.” The stipulation contained a “no oral-modification” clause. Subsequently, the plaintiff moved, inter alia, to hold the defendant in contempt for failing to comply with the maintenance, life insurance, and mortgage provisions of the stipulation. The Supreme Court granted the plaintiff’s motion to the extent of directing entry of a judgment in her favor and against the defendant for the claimed arrears. The defendant appeals. Contrary to the defendant’s contentions, the Supreme Court properly awarded the plaintiff the claimed arrears in maintenance. The clause in the stipulation expressly prohibiting its modification or waiver except by a properly-signed writing was sufficient to establish prima facie that the plaintiff was entitled to summary judgment (see Gower v. Gower, 240 AD2d 632; Jacobson v. Jacobson, 231 AD2d 494). The burden therefore shifted to the defendant to show the existence of a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 NY2d 320; Zuckerman v. City of New York, 49 NY2d 557). The defendant failed to meet that burden by demonstrating that his performance of an alleged oral agreement, modifying the written stipulation, was unequivocally referable to such agreement. Indeed, the record indicates other motivations for the defendant’s conduct (see Gower v. Gower, supra; Jacobson v. Jacobson, supra). Furthermore, the Supreme Court properly determined that the defendant was responsible for making the mortgage payments on the plaintiff’s Florida residence. The stipulation of settlement, read as a whole to determine its purpose and intent (see e.g. W.W.W. Assocs. v. Giancontieri, 77 NY2d 157; Rentways v. O’Neill Milk & Cream Co., 308 NY 342), plainly manifests the intention of the parties that the defendant would continue to pay the mortgage on the Florida residence until the marital residence was sold and the proceeds applied to satisfy the mortgage on both that residence and the Florida residence. However, the Supreme Court should have held a hearing to determine the amount of arrears owed by the defendant with respect to the life insurance premiums. The plaintiff failed to provide sufficient proof to establish, as a matter of law, that she was entitled to the amount claimed. Furthermore, the Supreme Court erred in awarding the plaintiff an attorney’s fee without first conducting a hearing to explore the relative financial conditions of the parties and the attorney’s claim for a fee (see Gaudette v. Gaudette, 234 AD2d 619; Kelly v. Kelly, 223 AD2d 625). The defendant’s remaining contentions either are without merit or unpreserved for appellate review. SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Feuerstein, J.P.; Krausman, Mastro and Rivera, JJ. GUERRERA, res, v. FOUNDATION TITLE & ESCROW CORP., def, FIRST AMERICAN TITLE INSURANCE COMPANY OF NEW YORK, ap – (INDEX NO. 6894/01)In an action, inter alia, to recover damages for breach of contract, the defendant First American Title Insurance Company of New York appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated August 21, 2001, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it. ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the motion which were for summary judgment dismissing the second, third, and fourth causes of action and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements. The plaintiff’s second cause of action, sounding in negligence, is time-barred and therefore should have been dismissed (see CPLR 214[5]; DiPilato v. Martinelli, 274 AD2d 412). A cause of action to recover damages for fraud will not arise when the only fraud charged relates to a breach of contract (see Lavi v. Lavi, 256 AD2d 602, 604; Crowley Mar. Assoc. v. Nyconn Assoc., 292 AD2d 334). Therefore, the third cause of action should have been dismissed. Moreover, after the appellant made out a prima facie case for summary judgment, the plaintiff failed to raise a triable issue of fact as to whether there was an agreement between the parties authorizing an award of an attorney’s fee (see Maliner-Colvin v. 85-10 34th Ave. Apt. Corp., 284 AD2d 434; Severino v. Classic Collision, 280 AD2d 463). Accordingly, the fourth cause of action should have been dismissed. The appellant’s remaining contentions are without merit. FEUERSTEIN, J.P., KRAUSMAN, MASTRO and RIVERA, JJ., concur. By Feuerstein, J.P.; Friedmann, Schmidt and Mastro, JJ. HARDY aps, v. LOJAN REALTY CORP. res – (INDEX NO. 19031/98)In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Dowd, J.), dated January 22, 2002, which granted the separate motions of the defendants Lojan Realty Corp., Investment Properties Associates, Marilyn Edith Silvershein, individually and with Bankers Trust Company, Joan Marcia Wolfson, Bertie Wolfson, and Helmsley-Noyes Co., Inc., and the defendant Central Elevator, Inc., for summary judgment dismissing the complaint insofar as asserted against them. ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs. The defendants, who owned, operated and/or serviced and maintained an elevator that allegedly free-fell and came to an abrupt stop after a mainline fuse blew, met their prima facie burden of demonstrating that they had no notice of a similar recurring problem with the elevator, and demonstrated with affidavits of an elevator mechanic and an expert elevatorconsultant that the allegations were physically and mechanically impossible (see Williams v. Port Auth. of N.Y. & N.J., 247 AD2d 296; Braithwaite v. Equitable Life Assur. Socy. of U.S., 232 AD2d 352; Loughlin v. City of New York, 186 AD2d 176, 177). The plaintiffs failed to submit evidence in admissible form to counter the defendants’ prima facie showing that the elevator functioned properly (see Braithwaite v. Equitable Life Assur. Socy. of U.S., supra). Moreover, the doctrine of res ipsa loquitur is inapplicable, because the plaintiffs did not demonstrate that the elevator stoppage was the type of event that would not ordinarily occur absent negligence (see Kambat v. St. Francis Hosp., 89 NY2d 489, 494; Dermatossian v. New York City Tr. Auth., 67 NY2d 219, 226; Koch v. Otis El. Co., 10 AD2d 464, 466). Therefore, the defendants were entitled to summary judgment dismissing the complaint. FEUERSTEIN, J.P., FRIEDMANN, SCHMIDT and MASTRO, JJ., concur. By Feuerstein, J.P.; Smith, Miller and Cozier, JJ. HAYES, ETC., ap, v. COUNTY BANK, res – (INDEX NO. 2281/00)In a class action commenced by the plaintiff Patricia Hayes on behalf of herself and others similarly situated, inter alia, for a judgment declaring that the defendant’s interest charges are unconscionable and that the arbitration provision in the defendant’s loan documents is void and unenforceable, the plaintiff appeals from so much of (1) an order of the Supreme Court, Queens County (Kitzes, J.), dated October 16, 2001, as denied that branch of her motion which was for partial summary judgment on the cause of action pursuant to General Business Law � 349, and (2) an order of the same court, dated January 28, 2002, as, upon reargument and renewal, adhered to its prior determination. ORDERED that the appeal from the order dated October 16, 2001, is dismissed, as that order was superseded by the order dated January 28, 2002, made upon reargument and renewal; and it is further, ORDERED that the order dated January 28, 2002, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the respondent. The plaintiff failed to meet her burden of establishing entitlement to judgment as a matter of law with regard to the cause of action pursuant to General Business Law 349, as she failed to show that the arbitration clause at issue is deceptive or misleading to a reasonable consumer (see Stutman v. Chemical Bank, 95 NY2d 24, 29; Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 NY2d 20, 25-26; Smith v. Chase Manhattan Bank, USA, 293 AD2d 598). The plaintiff’s remaining contentions are unpreserved for appellate review or without merit. FEUERSTEIN, J.P., SMITH, H. MILLER and COZIER, JJ., concur. By Gail Prudenti, P.J.; Feuerstein, McGinity and Miller, JJ. HENRICKSEN, aps, v. TRAILS END COMPANY res – (INDEX NO. 3596/96)In an action, inter alia, for a judgment declaring that the defendants have no right to use a portion of the plaintiffs’ property designated as an easement for access to a pond, the plaintiffs appeal from a judgment of the Supreme Court, Orange County (Byrne, J.H.O.), dated January 23, 2002, which, after a nonjury trial, dismissed the complaint, and is in favor of the defendants and against them on the first and second counterclaims declaring, among other things, that the defendants are entitled to use the easement without interference. Presiding Justice Prudenti has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the judgment is affirmed, with costs. In determining the extent of an easement claimed under an express grant or reservation, the ordinary rules of construction and interpretation apply, which are essentially those applicable to other written instruments, and to deeds generally (see Route 22 Assocs. v. Cipes, 204 AD2d 705). As applied in connection with the grant or reservation of an easement, the primary rule of construction of deeds is that the real intention of the parties is to be sought and carried out whenever possible, at least when not contrary to settled principles of law or statutory prohibitions (see Route 22 Assocs. v. Cipes, supra). Here, the grant gave the defendants the right to use the entire subservient parcel without restriction to the pond at issue. Accordingly, the Supreme Court properly dismissed the complaint and awarded judgment to the defendants on their first and second counterclaims declaring, inter alia, that they are entitled to use the easement without interference. The plaintiffs failed to demonstrate their entitlement to relocate the easement of the defendants Richard Marsh and Virginia Marsh. The plaintiffs failed to show that the proposed change did not significantly frustrate the grantor’s intent or object in creating the right of way, did not increase the burden on the easement holder, or did not lessen the utility of the right of way (see Lewis v. Young, 92 NY2d 443). The plaintiffs’ remaining contentions are without merit. PRUDENTI, P.J., FEUERSTEIN, McGINITY and H. MILLER, JJ., concur. By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. HINDES, ap, v. WEISZ res – (INDEX NO. 31615/00)In an action to recover damages for breach of a settlement agreement, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 22, 2002, as denied her motion for summary judgment seeking a money judgment on the first cause of action. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith. The parties herein were partners in MSG Associates (hereinafter MSG), which owned and operated commercial real property. On December 15, 1999, the parties executed a settlement agreement (hereinafter the agreement) in which the defendants agreed to pay the plaintiff $550,000 for her interest in MSG so that MSG could sell certain real property to nonparty purchaser Calco Development, Ltd. (hereinafter Calco). Under paragraph 5 of the agreement, it was agreed that should the closing costs for the real estate sale total less than $497,000, the plaintiff would receive 25 percent of the difference between the sum of $497,000 and MSG’s actual closing costs. By contrast, if the closing costs exceeded $497,000, the plaintiff would not be entitled to any additional payments. The $497,000 sum was presented to the plaintiff with the following allocable line item expenses: real estate taxes of $232,000; tenants’ security deposits required to beadjusted and paid to the purchaser in the sum of $75,000; and payments to third-party trade creditors in the sum of $55,000. The direct closing expenses totaled $100,000 and included real estate transfer taxes, costs of recording the satisfaction of mortgage, and legal fees no more than $35,000. In addition, “John Corcoran” was allocated a total of $35,000. Following the agreement, MSG asserted that its closing costs totaled $503,385.70. The costs included real estate taxes in the sum of $239,184.30; tenants’ security in the amount of $78,091.10 with $1,800 returned to Giant Industrial Installation (hereinafter Giant Industrial) for a total of $79,891.10; payments to trade creditors in the sum of $34,647.30; payments to “John Corcoran” in the sum of $35,000; direct closing costs of State Bank in the amount of $30,688 that included a mortgage tax payment of $18,333; legal fees in the sum of $35,000; an environmental closing statement payment from MSG to Deer Park Technology on behalf of Calco in the sum of $47,500; and an environmental closing statement payment to the New York State Department of Health (hereinafter NYSDOH) in the sum of $1,475. Based upon these calculations, the defendants claimed that the plaintiff was not entitled to further sums under the agreement. As a result, the plaintiff commenced this action, alleging that the closing costs claimed by the defendant were overstated because the costs exceeded the parameters of the itemized costs permitted and included in paragraph 5 of the agreement. In support of her motion for summary judgment, the plaintiff argued that paragraph 5 of the agreement did not include the following closing costs: the mortgage tax in the amount of $18,333; Calco’s environmental adjustment credit of $47,500; the $1,475 paid to the NYSDOH; and the repayment of the security deposit in the amount of $1,800 to Giant Industrial which was not a party under the sale. Thus, the actual closing costs were $434,277.70, of which she was entitled to 25 percent of the difference between that sum and $497,000 under the agreement. When considering summary judgment, the construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance (see W.W.W. Assocs. v. Giancontieri, 77 NY2d 157; National Loan Investors v. First Equities Corp., 261 AD2d 518). If the language is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence (see Weiner v. Anesthesia Assocs. of W. Suffolk, 203 AD2d 454). Thus, the objective is to determine the parties’ intention as derived from the language employed in the contract (see Chimart Assoc. v. Paul, 66 NY2d 570). Here, it is clear under paragraph 5 of the settlement agreement that closing costs did not include payment of Calco’s mortgage tax, the environmental credit given to Calco, the payment to the NYSDOH, or the payment of tenants’ security to Giant Industrial. Contrary to the defendants’ contentions, there are no genuine issues of material fact and the plaintiff’s motion for summary judgment should have been granted. We remit the matter to the Supreme Court, Suffolk County, to calculate the amount due to the plaintiff under the agreement, with interest. SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. JONES, ap, v. CURRY res – (INDEX NO. 20441/95)In an action to recover damages for defamation and negligent supervision, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Martin, J.), dated September 27, 2001, which, upon the granting of that branch of the defendants’ application pursuant to CPLR 4401 which was for judgment as a matter of law in favor of the defendant Hempstead Public Schools, and upon a jury verdict in favor of the defendant Tyree Curry, is in favor of the defendants and against him dismissing the complaint. ORDERED that the judgment is affirmed, with costs. “A jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence Great deference is accorded to the fact-finding function of the jury, and determinations regarding the credibility of witnesses are for the fact-finders, who had the opportunity to see and hear the witness[es]” (Voiclis v. International Assn. of Machinist and Aerospace Workers Suffolk Lodge No. 1470, 239 AD2d 339 [citations omitted]). A fair interpretation of the evidence supports the jury verdict in favor of the defendant Tyree Curry on the cause of action for defamation. Moreover, we reject the plaintiff’s unpreserved contention that the jury’s responses to the special interrogatories were internally inconsistent. Finally, the Supreme Court properly granted that branch of the defendants’ application pursuant to CPLR 4401 which was for judgment as a matter of law in favor of the defendant Hempstead School District dismissing the cause of action for negligent supervision (see Sato v. Correa, 272 AD2d 389). SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Feuerstein, J.P.; Miller, Friedmann and Cozier, JJ. JUARBE, ap, v. CITY OF NEW YORK, res – (INDEX NO. 16360/99)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated June 20, 2001, which denied his motion to vacate a prior order of the same court, dated March 9, 2001, granting, upon his default in appearing at oral argument, the defendant’s motion for summary judgment dismissing the complaint and to deem the service and filing of an amended notice of claim timely. Justice Feuerstein has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the order is affirmed, with costs. To vacate a default, a movant must establish both a reasonable excuse and a meritorious claim or defense (see Westchester County Med. Ctr. v. Allstate Ins. Co., 283 AD2d 488; Greene v. New York City Hous. Auth., 283 AD2d 458; Matter of AIU Ins. Co. v. Fernandez, 281 AD2d 542, 543; Poincy v. White Bus Co., 278 AD2d 467). The only explanation offered by the plaintiff for his default in opposing the defendant’s motion was that his attorney was late for a motion calendar call. Although law office failure may constitute a reasonable excuse under certain circumstances, the explanation offered was conclusory and devoid of any detailed factual allegations, and thus did not constitute a reasonable excuse (see Morris v. Metropolitan Transp. Auth., 191 AD2d 682, 683). In addition, the proposed amended notice of claim was a “nullity,” as it was served upon the defendant City of New York without leave of court (Henry v. Aguilar, 282 AD2d 711; see General Municipal Law � 50-e[1][a]). Further, any amended notice of claim served two years after the incident would be prejudicial to the City, since the initial notice of claim served in this case failed to describe the accident location with sufficient particularity (see Earle v. Town of Oyster Bay, 247 AD2d 357, 358). The plaintiff’s remaining contention raises an issue that is dehors the record and will not be considered on appeal (see Matter of Acme Bus Co. v. Board of Educ. of Roosevelt Union Free School Dist., 91 NY2d 51, 56, n; R & J Yorek, Inc. v. MCL Constr., 173 AD2d 531, 532; Carhuff v. Barnett’s Bake Shop, 54 AD2d 969). FEUERSTEIN, J.P., S. MILLER, FRIEDMANN and COZIER, JJ., concur. By Santucci, J.P.; Krausman, Adams and Crane, JJ. JURON & MINZNER, P.C., ETC., ap plf, v. STATE FARM INSURANCE COMPANY, ET AL., def, NEWELL, res – (INDEX NO. 6142/99)In an action to enforce an attorney’s charging lien on settlement proceeds, the plaintiff Juron and Minzner, P.C., appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Cowhey, J.), dated October 3, 2001, as granted that branch of the cross motion of the defendant Michael B. Newell which was to impose a sanction on it in the sum of $3,000. ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the branch of the cross motion which was to impose a sanction is denied. The court imposed a sanction upon the appellant when it failed to discontinue its action against the defendant Michael B. Newell after having agreed to do so because of defective service of process. Based upon the sequence of events, it appears that the appellant’s failure to discontinue the action was due to mere law-office failure. While a court has the discretion to impose a sanction for frivolous conduct in civil litigation (see Schneider v. Hand, 296 AD2d 454), the appellant’s actions in this case did not rise to the level of frivolous conduct as defined in 22 NYCRR 130-1.1(c). SANTUCCI, J.P., KRAUSMAN, ADAMS and CRANE, JJ., concur. By Feuerstein, J.P.; Goldstein, Miller and Rivera, JJ. KEEVINS, ap, v. DROBBIN res – (INDEX NO. 5951/00)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated February 7, 2002, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law � 5102(d), and denied her cross motion for summary judgment on the issue of liability. ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion, and substituting therefor a provision denying the motion; as so modified, the order is affirmed, with costs to the plaintiff. In opposition to the defendants’ prima facie showing of their entitlement to summary judgment on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law � 5102(d) as a result of the subject accident, the plaintiff submitted the affidavit and supporting medical report of her treating orthopedist. The orthopedist examined the plaintiff on November 24, 1998, three days after the accident. In both his affidavit and medical report, the plaintiff’s treating orthopedist stated that he reviewed X-rays of the plaintiff’s cervical spine and diagnosed an “avulsion fracture off the anterior aspect of C5.” He further stated that there was a causal relationship between the avulsion fracture and the accident. In a medical record reflecting a follow-up visit on December 9, 1998, the plaintiff’s treating orthopedist stated that the plaintiff had “a normal MRI scan of the cervical spine.” Further, the defendant’s radiologist reviewed the X-rays of the plaintiff’s cervical spine and noted “calcification anterior to C5″ and related that finding to “elongation of the transverse process of C5 which represents a normal variant rather than an avulsion injury.” This evidence was sufficient to raise an issue of fact whether the plaintiff sustained a serious injury within the meaning of Insurance Law � 5102(d). Accordingly, the court erred in awarding summary judgment to the defendants (see Kolios v. Znack, 237 AD2d 333; Bethea v. Pacheco Auto Collision, 207 AD2d 424). Further, based on the foregoing evidence, the plaintiff’s cross motion for summary judgment was properly denied. FEUERSTEIN, J.P., GOLDSTEIN, H. MILLER and RIVERA, JJ., concur. By Friedmann, J.P.; Schmidt, Adams and Mastro, JJ. LARAMIE SPRINGTREE CORP., ap, v. EQUITY RESIDENTIAL PROPERTIES TRUST, ETC. res def – (INDEX NO. 5232/98)In an action, inter alia, to recover damages for breach of contract and specific performance, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCaffrey, J.), entered December 17, 2001, which granted the motion of the defendants Equity Residential Properties Trust, as the successor-in-interest to Wellsford Residential Property Trust, and Wellsford Residential Property Trust for summary judgment dismissing the complaint insofar as asserted against them and denied its cross motion for summary judgment. ORDERED that the order is affirmed, with costs. On November 24, 1992, the plaintiff entered into an agreement with the defendant Wellsford Residential Property Trust (hereinafter Wellsford), pursuant to which Wellsford purchased a certain premises known as Springtree Apartments. The agreement further provided that, if Wellsford wished to subsequently sell the premises to a bona fide third party for value, it had to give written notice of the sale to the plaintiff. The plaintiff, in turn, was required either to consent to the sale of the premises pursuant to the offer made by the third party or to “purchase the premises, on the same terms and conditions as contained in the offer.” On the same day, nonparty Laramie Spring Valley Corporation (whose shareholders were identical to those of Springtree) entered into a similar agreement with Wellsford, pursuant to which Wellsford purchased a premises known as Spring Valley Apartments, whichoccupied a parcel of land adjacent to Springtree Apartments. This agreement contained a right of first refusal provision that was identical to the one in the first agreement. In November 1997 the defendant Equity Residential Properties Trust (hereinafter Equity), the successor-in-interest to Wellsford with regard to the two subject apartment complexes, entered into an agreement with nonparty Walden Residential Properties (hereinafter Walden), pursuant to which Walden agreed to purchase Springtree Apartments. The agreement provided, however, that “[t]he purchase of the property is contingent upon the simultaneous purchase of the Spring Valley Apartments located adjacent to the property.” After being provided with a notice of sale, the plaintiff responded that it wished only to purchase Springtree Apartments. Equity refused to convey only the Springtree property to the plaintiff, thus giving rise to this action. The Supreme Court properly granted the respondents’ motion for summary judgment dismissing the complaint. In view of the facts of this case, including the fact that the plaintiff agreed to purchase only “on the same terms and conditions as contained in the offer,” the plaintiff could not compel Equity to sell only the Springtree property (see Sautkulis v. Conklin, 1 AD2d 962, affd 2 NY2d 919). Notably, the plaintiff submitted no evidence of fraud or collusion on the part of Equity in procuring the offer from Walden. FRIEDMANN, J.P., SCHMIDT, ADAMS and MASTRO, JJ., concur. By Santucci, J.P.; Smith, Miller and Adams, JJ. MARDERS THE LANDSCAPE STORE, INC., ap, v. BARYLSKI, res – (INDEX NO. 06623/02)In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated May 8, 2002, which denied its motion for a preliminary injunction. ORDERED that the order is affirmed, with costs. It is well settled that to be entitled to a preliminary injunction, a movant must demonstrate a likelihood of success on the merits, irreparable harm in the absence of an injunction, and a balancing of the equities in its favor (see Aetna Ins. Co. v. Capasso, 75 NY2d 860; Grant Co. v. Srogi, 52 NY2d 496; CPLR 6301, 6312[a]). The plaintiff failed to meet its burden (see Neos v. Lacey, 291 AD2d 434; Skaggs-Walsh, Inc. v. Chmiel, 224 AD2d 680, MacIntyre v. Metropolitan Life Insurance Co., 221 AD2d 602.) The plaintiff’s contention that a hearing was required upon its motion for a preliminary injunction is without merit (see CPLR 6312[c]). SANTUCCI, J.P., SMITH, H. MILLER and ADAMS, JJ., concur. By Ritter, J.P.; McGinity, Townes and Mastro, JJ. MARSHALL res, v. VILAR III, ap def – (INDEX NO. 12004/00)In an action, inter alia, to recover damages for fraud and conversion, the defendant Manuel Vilar III appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated January 24, 2002, as denied those branches of his motion which were for summary judgment dismissing the second, third, fourth, fifth, and sixth causes of action insofar as asserted against him. ORDERED that the order is affirmed insofar as appealed from, with costs. Vicki A. Marshall (hereinafter the plaintiff) and Gardiners Bay Consultants, Inc. (hereinafter the corporation), commenced this action against Marshall’s former boyfriend, Manuel Vilar III (hereinafter the defendant), and his parents, alleging seven causes of action relating to the transfer, sale, or conversion of property following the couple’s break-up. The causes of action sound in fraud, breach of contract, and conversion, and the imposition of a constructive trust was among the remedies sought. At issue is the Supreme Court’s denial of the defendant’s motion for summary judgment dismissing the second cause of action (alleging breach of an oral contract regarding short-term continued residence in the home they had built together), the third cause of action (sounding in fraud), the fourth cause of action (alleging breach of an oral contract to purchase the plaintiff’s shares in the corporation), the fifth cause of action (alleging tortuous interferencewith contracts of the corporation), and the sixth cause of action (alleging conversion of equipment and files). When considering the competing contentions on a motion for summary judgment, the opponent is entitled to the benefit of every favorable inference that may be drawn from the pleadings, affidavits, and competing contentions of the parties (see Ingle v. Glamore Motor Sales, 73 NY2d 183, 194; Myers v. Fir Cab Corp., 64 NY2d 806). Summary judgment is inappropriate where questions of fact or credibility are raised that require a trial (see Zuckerman v. City of New York, 49 NY2d 557; Glick & Dolleck v. Tri-Pac Export Corp., 22 NY2d 439). After the defendant made out a prima facie case for summary judgment, the plaintiff raised triable issues of fact with respect to, among other things, agreements for compensation for the transfer of the house and business, that make summary judgment inappropriate on the causes of action at issue (see Zuckerman v. City of New York, supra; Glick & Dolleck v. Tri-Pac Export Corp., supra). Furthermore, contrary to the defendant’s contentions, the elements necessary to support a claim of fraud have been pleaded with sufficient particularity to inform him of the circumstances constituting the wrong (see CPLR 3016[b]; Crafton Bldg. Corp. v. St. James Const. Corp., 221 AD2d 407, 408). The defendant’s remaining contentions are without merit. RITTER, J.P., McGINITY, TOWNES and MASTRO, JJ., concur. By Santucci, J.P.; Smith, Miller and Adams, JJ. MARTINEZ, res, v. CITY OF YONKERS, ap def – (INDEX NO. 10514/99)In an action to recover damages for personal injuries, the defendant City of Yonkers appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Nastsi, J.), entered March 8, 2002, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it. ORDERED that the order is affirmed insofar as appealed from, with costs. A plaintiff in a slip-and-fall case must demonstrate that the defendant either created the dangerous condition which caused the accident or had actual or constructive notice of that condition and failed to remedy it within a reasonable time (see Gordon v. American Museum of Natural History, 67 NY2d 836; Blake v. City of Albany, 48 NY2d 875). “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the defendant] to discover it and remedy it” (Gordon v. American Museum of Natural History, supra at 837). The Supreme Court properly denied the motion of the defendant City of Yonkers for summary judgment. After the City made out a prima facie case for summary judgment, the plaintiff raised a triable issue of fact as to whether the City had constructive notice of the allegedly dangerous condition which the plaintiff contends precipitated her fall (see Knightner v. Custom Window Door Prods., 289 AD2d 455; Hanley v. Affronti, 278 AD2d 868; Fundaro v. City of New York, 272 AD2d 516; see generally Alvarez v. Prospect Hosp, 68 NY2d 320). SANTUCCI, J.P., SMITH, H. MILLER and ADAMS, JJ., concur. By Goldstein, J.P.; Adams, Townes and Crane, JJ. MAURO, res, v. NIEMANN AGENCY, INC., ap – (INDEX NO. 16535/00)In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated March 13, 2002, which denied its motion, inter alia, for summary judgment dismissing the complaint with leave to renew upon the completion of discovery. ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the complaint and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs, and the complaint is dismissed. The complaint alleges that the defendant, an insurance broker, breached its contract with the plaintiff’s father and committed negligence in failing to procure the maximum uninsured and supplementary uninsured motorist (hereinafter SUM) coverage that would have covered the injuries he sustained in an accident on July 12, 1997, while he was driving his father’s car. The plaintiff’s father procured SUM coverage from the defendant continuously from 1989 until the date of the accident. The plaintiff was an “insured” as defined in paragraph I(a)(2)(i) of the SUM endorsement. After issue was joined, the defendant moved for summary judgment and for dismissal of the complaint for failure to state a cause of action and as time-barred (see CPLR 3212, 3211[a][7], 3211[a][5]). The Supreme Court denied the motion with leave to renew after the completion of discovery. The defendant sustained its burden of establishing prima facie that both the breach of contract, if any, and the negligence claims, if any, are time-barred (see Savarese v. Shatz, 273 AD2d 219, 220). In opposition, the plaintiff raised no triable issue that would change the measurement of the applicable periods of limitations. The statute of limitations for a breach of contract is six years (see CPLR 213[2]), and for a negligence claim is three years (see CPLR 214[4]). The breach of contract claim accrued in 1989 when the defendant failed to perform its alleged undertaking with the plaintiff’s father to obtain the highest amount of SUM coverage (see Ely-Cruikshank Co. v. Bank of Montreal, 81 NY2d 399, 402; Hudson Envelope Corp. v. Klausner, 249 AD2d 31, 32). This action was commenced on June 29, 2000, more than six years after the defendant allegedly breached its contract. Under the circumstances of this case as pleaded in the complaint, the plaintiff’s negligence claim also accrued in 1989 because it alleges that as a proximate result of the defendant’s failure to secure SUM coverage to the maximum amount available, the plaintiff’s benefits were limited to $25,000. This loss of a property right to greater insurance protection took place upon the first issuance of the coverage in 1989, more than three years prior to the commencement of this action (see Busker on the Roof Ltd. Partnership Co. v. Warrington, 283 AD2d 376; Cappelli v. Berkshire Life Ins. Co., 276 AD2d 458, 459). Accordingly, the Supreme Court erred in denying the defendant’s motion with leave to renew after completion of discovery. No amount of discovery will alter the facts on which the defense of the statute of limitations rests. The plaintiff’s remaining contentions either are unnecessary to reach or without merit. GOLDSTEIN, J.P., ADAMS, TOWNES and CRANE, JJ., concur. By Smith, J.P.; Goldstein, Townes and Mastro, JJ. MAXI-AIDS, INC. aps, v. GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA res – (INDEX NO. 193/97)In an action, inter alia, for a judgment declaring that the defendant General Accident Insurance Company of America is obligated to defend and indemnify the plaintiffs in an underlying action entitled Independent Living Aids v. Maxi-Aids, Inc., commenced in the United States District Court, Eastern District of New York, under Docket No. 95 CV 656, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Alpert, J.), entered December 13, 2001, as granted the respective motions of the defendants General Accident Insurance Company of America, and Country Brokerage Services, Inc., and Gerald M. Levy, for summary judgment dismissing the complaint insofar as asserted against them. ORDERED that order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs. Where an insurance policy requires an insured to provide notice of an accident or loss as soon as practicable, such notice must be provided within a reasonable time in view of all the facts and circumstances of the case (see Nationwide Ins. Co. v. Empire Ins. Group,294 AD2d 546). Providing timely notice to an insurer is a condition precedent to recovery (see Travelers Indem. Co. v. Worthy, 281 AD2d 411), and the failure to satisfy the notice requirement, absent a valid excuse, vitiates the policy (see Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., 31 NY2d 436; Travelers Indem. Co. v. Worthy, supra). In response to the respondents’ establishment of prima facie entitlement to judgment as a matter of law, the appellants failed to raise a triable issue of fact as to why they did not provide the respondents with timely notice of the possible claims contained in the underlying action. Accordingly, the Supreme Court properly granted the respondents’ respective motions for summary judgment dismissing the complaint insofar as asserted against them. The appellants’ remaining contentions need not be addressed in light of our determination. SMITH, J.P., GOLDSTEIN, TOWNES and MASTRO, JJ., concur. By Gail Prudenti, P.J.; Santucci, Goldstein and Cozier, JJ. MIGLIO, plf, v. SCHILDBACH, def – (ACTION NO. 1) (INDEX NO. 19308/95) Locust Valley Shoppes, Inc., res, v. MIGLIO, ap – (ACTION NO. 2) (INDEX NO. 21548/90)In two related actions, inter alia, to rescind certain instruments for the sale of shares of stock of Locust Valley Shoppes, Inc., and to recover damages for breach of contract, which were consolidated for trial, the defendant in Action No. 2 appeals from an order of the Supreme Court, Nassau County (Joseph, J.), dated November 26, 2001, which granted the motion of the plaintiff in that action for summary judgment dismissing his counterclaims and affirmative defenses and for leave to discontinue the action, and denied his motion for leave to amend his pleadings. Presiding Justice Prudenti has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the order is affirmed, with costs. Edward Schildbach was the owner of 24 1/2 percent of the shares of stock of a corporation known as Locust Valley Shoppes, Inc., the plaintiff in Action No. 2 (hereinafter LVS). In August 1984 Schildbach entered into an agreement (hereinafter the 1984 agreement) with the appellant, Salvatore Miglio, pursuant to which Schildbach agreed to transfer ownership of the shares to Miglio after certain contingencies occurred. However, whileSchildbach’s stock certificate was physically delivered to Miglio, the shares were never formally transferred to Miglio. Thereafter, LVS sought rescission of the instruments which purported to transfer the stock to Miglio and the return of the LVS stock certificates. The Supreme Court granted the motion of LVS to dismiss Miglio’s counterclaims and affirmative defenses, and for leave to discontinue the action. We affirm. LVS established its prima facie entitlement to summary judgment by demonstrating that Schildbach remained the record owner of the shares of stock in LVS. Pursuant to the corporate bylaws, LVS was not bound to “recognize any equitable or other claim to or interest in such share[s] on the part of any other person.” Moreover, Miglio’s interpretation of the 1984 agreement would render meaningless the provisions thereof regarding the occurrence of certain contingencies (see Two Guys from Harrison-N.Y. v. S.F.R. Realty Assoc., 63 NY2d 396, 403; Malloy v. O’Neill, 242 AD2d 260, 261; Bank of N.Y. v. Murphy, 230 AD2d 607). In opposition to the motion, Miglio failed to raise a triable issue of fact. In this regard, we note that Schildbach was identified in a 1985 power of attorney as the owner of the shares, and in subsequent sworn statements and deposition testimony, Miglio admitted that Schildbach retained ownership of the shares after the 1984 agreement was executed. Accordingly, summary judgment was properly granted to LVS. The denial of Miglio’s motion for leave to amend his pleadings was a proper exercise of discretion (see CPLR 3025[b]; Pogue v. Del Rosario, 266 AD2d 525, 526; Romeo v. Arrigo, 254 AD2d 270). Not only was the motion brought 11 years after the commencement of the action, but Miglio also failed to satisfy the threshold requirement for a claim of corporate dissolution, as he is not a holder of at least 20 percent of the outstanding corporate shares (see Business Corporation Law 1104-a; Shea v. Hambros PLC, 244 AD2d 39, 52-53). PRUDENTI, P.J., SANTUCCI, GOLDSTEIN and COZIER, JJ., concur. By Ritter, J.P.; McGinity, Townes and Mastro, JJ. MILLER aps, v. UNITED RENTALS AERIAL EQUIPMENT res – (INDEX NO. 21952/00)In an action to recover damages for personal injuries, etc. the plaintiffs appeal from (1) an order of the Supreme Court, Queens County (Dye, J.), dated April 1, 2002, which denied their motion for leave to amend the complaint to increase the ad damnum clause, and (2) an order of the same court dated September 30, 2002, which denied their motion, in effect, for leave to renew their motion for leave to amend the complaint. ORDERED that the appeal from the order dated April 1, 2002, is dismissed as academic in light of our determination of the appeal from the order dated September 30, 2002; and it is further, ORDERED that the order dated September 30, 2002, is reversed, on the law, the motion for leave to renew is granted, and upon renewal, the order dated April 1, 2002, is vacated and the motion for leave to amend the complaint to increase the ad damnum clause is granted; and it is further, ORDERED that the plaintiffs shall serve the amended complaint within 30 days after service on them of a copy of this decision and order; and it is further, ORDERED that one bill of costs is awarded to the plaintiffs. This action was brought by Beth Miller, and derivatively by her husband, for injuries she sustained as a result of a rear-end collision on March 28, 2000. Issue was joined on or about November 8, 2000. On November 1, 2001, the plaintiffs moved for leave to amend the complaint to increase the ad damnum clause. The Supreme Court denied the motion on the ground that the doctor’s affidavit submitted in support thereof failed to suggest newly discovered injuries or a worsened condition or a dramatic change from the doctor’s first assessment of the injuries sustained by the injured plaintiff. The plaintiffs subsequently moved, in effect, for leave to renew their prior motion. The Supreme Court also denied the subsequent motion. A motion to increase the ad damnum clause based on a claim of increased injuries must be supported by two affidavits: (1) one by the plaintiffs that demonstrates “the merits of the case, the reasons for the delay, and the fact that the increase is warranted by reason of facts which have recently come to the attention of the plaintiff[s] and excusing the failure or negligence necessitating the amendment so far as these facts are within the knowledge of the plaintiff[s]” and (2) one by a doctor showing a causal connection between the injuries and the underlying accident and a consistent course of treatment for the injuries caused by the accident (Lopez v. Alexander, 251 AD2d 297, 297, quoting London v. Moore, 32 AD2d 543, 543, quoting Koi v. P.S. & M. Catering Corp., 15 AD2d 775, 775-776). In general, in the absence of prejudice to the defendant, a motion for leave to amend the ad damnum clause should be granted (see Loomis v. Civetta Corinno Const. Corp., 54 NY2d 18, 23). The plaintiffs’ subsequent motion, in effect, for leave to renew their prior motion, was based on new facts not available on the original motion (see CPLR 2221[e][2]), including, but not limited to, a second surgery that the injured plaintiff underwent after the issuance of the prior order. Thus, the Supreme Court should have granted leave to renew. Additionally, the plaintiffs adequately supported their allegations of increased injuries causally related to the subject accident and resulting damages arguably in excess of the original estimate. Accordingly, upon renewal, the plaintiffs’ motion for leave to amend the complaint to increase the ad damnum clause should have been granted. The defendants’ remaining contentions are without merit. RITTER, J.P., McGINITY, TOWNES and MASTRO, JJ., concur. By Altman, J.P.; Miller, Friedmann and McGinity, JJ. MINUCCI, ap, v. CITY OF NEW YORK, ET AL., res def – (INDEX NO. 42793/93)In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Schneier, J.), dated May 24, 2001, which granted the oral applications of the defendants City of New York and Trevus Construction Corporation for summary judgment dismissing the complaint insofar as asserted against them, and (2), as limited by his brief, from so much of an order of the same court, dated November 1, 2001, as, upon granting his motion for leave to reargue, adhered to its original determination. ORDERED that the appeal from the order dated May 24, 2001, is dismissed, as that order did not decide a motion made on notice, and was superseded by the order dated November 1, 2001, made upon reargument; and it is further, ORDERED that the order dated November 1, 2001, is reversed insofar as appealed from, on the law, upon reargument, the order dated May 24, 2001, is vacated, the defendants’ oral applications are denied, and the complaint is reinstated insofar as asserted against the defendants City of New York and Trevus Construction Corporation; and it is further, ORDERED that one bill of costs is awarded to the plaintiff. It is unnecessary to grant leave to appeal from the order dated May 24, 2001, as that order was superseded by the order dated November 1, 2001, made upon reargument. The Supreme Court should not have entertained the defendants’ oral applications for summary judgment, made after jury selection. The defendants failed to demonstrate good cause for their delay in seeking summary judgment, their applications were not made by motion on notice to the plaintiff, and were not supported by evidentiary proof establishing their entitlement to judgment as a matter of law (see Hilton v. City of New Rochelle, 298 AD2d 360). ALTMAN, J.P., S. MILLER, FRIEDMANN and McGINITY, JJ., concur. By Goldstein, J.P.; Adams, Townes and Crane, JJ. MOHAN, ETC., ap, v. HOLLANDER, ETC. res – (INDEX NO. 11829/01)In an action, inter alia, to recover damages for conversion and legal malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (O’Connell, J.), entered December 26, 2001, which denied his motion for leave to further amend the amended complaint, and granted the motion of the defendants Jack L. Hollander, Robert L. Rattet, and Rattet, Hollander & Pasternak, LLP, and the separate motion of the defendants D. Bernard Hoenig and Hoenig & Hoenig to dismiss the amended complaint insofar as asserted against them pursuant to, inter alia, CPLR 3211(a)(1), (5), and (7). ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs. When considering a motion to dismiss a complaint for failure to state a cause of action, the court must presume the facts pleaded to be true and accord them every favorable inference (see Rattenni v. Cerreta, 285 AD2d 636). However, “bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration” (Mayer v. Sanders, 264 AD2d 827, 828). At bar, the facts set forth in the complaint allege no more than causes of action to recover damages for conversion and legal malpractice, which arebarred by the applicable three-year statute of limitations (see CPLR 214[4], 214[6]). Since the causes of action alleging fraud are merely incidental to the conversion and legal malpractice claims, the only purpose they serve is to circumvent the three-year statute of limitations (see Gold Sun Shipping Ltd. v. Ionian Transp., 245 AD2d 420, 421). The Supreme Court therefore properly granted the respondents’ separate motions to dismiss the amended complaint insofar as asserted against them. Further, the Supreme Court properly denied the plaintiff’s motion for leave to further amend the amended complaint. Although leave to amend should be freely granted (see CPLR 3025[a]), the movant must make some evidentiary showing that the proposed amendment has merit (see Curran v. Auto Lab Serv. Ctr., 280 AD2d 636, 637). Otherwise, the amendment will not be permitted (see Heckler Elec. Co. v. Matrix Exhibits-New York, 278 AD2d 279). A review of the proposed amended complaint demonstrates that it fails to state a cause of action. Moreover, the proposed amended complaint was not verified by a party, and the only evidence in support of the amendment was an affirmation from counsel, who lacked personal knowledge of the factual basis for the proposed amendment (see Morgan v. Prospect Park Assocs. Holdings, L.P., 251 AD2d 306). The plaintiff’s remaining contentions are without merit. GOLDSTEIN, J.P., ADAMS, TOWNES and CRANE, JJ., concur. By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. MOURNET, res, v. EDUCATIONAL AND CULTURAL TRUST FUND OF THE ELECTRICAL INDUSTRY, ap def – (INDEX NO. 14195/00)In an action to recover damages for personal injuries, the defendant Educational and Cultural Trust Fund of the Electrical Industry appeals from so much of an order of the Supreme Court, Queens County (O’Donoghue, J.), dated April 24, 2002, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff was injured when she slipped and fell in front of premises located in Flushing, Queens, owned and partly occupied by the defendant Educational and Cultural Trust Fund of the Electrical Industry (hereinafter ECT). The plaintiff’s employer, the defendant Prudential Recreation Corp., d/b/a JIB Lanes (hereinafter JIB), leased space at the premises from ECT. The plaintiff commenced the instant action to recover damages for personal injuries against her employer and ECT. In its answer, ECT asserted as an affirmative defense that Workers’ Compensation was the plaintiff’s exclusive remedy, as it is an alter ego of the plaintiff’s employer. ECT moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that the action is barred by the exclusivity provisions of Workers’ Compensation Law �� 11 and 29(6), (17). The Supreme Court properly denied the motion, as ECT failed to establish its prima facie entitlement to judgment as a matter of law. Although a representative of ECT submitted an affidavit which established that it and JIB were related entities, this evidence failed to demonstrate JIB’s control, if any, over the day-to-day operations of ECT. Therefore, ECT failed to establish the applicability of the exclusivity provisions of the Workers’ Compensation Law (see Cruceta v. Funnel Equities, 286 AD2d 747; Dennihy v. Episcopal Health Servs., 283 AD2d 542, 543; Constantine v. Premier Cab Corp., 295 AD2d 303, 304). Summary judgment was also properly denied on the ground that ECT had exclusive knowledge of some of the facts regarding its alleged status as an alter ego of JIB (see Cruceta v. Funnel Equities, supra; Ellis v. Allstate Ins. Co., 151 AD2d 543), thus warranting further discovery by the plaintiff. SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. MATTER OF ACCESS LENDING CORPORATION, res, v. ALA ASSOCIATES, ET AL., ap – (INDEX NO. 4330/01)In a purported proceeding pursuant to Debtor and Creditor Law article 10 to set aside a transfer as fraudulent, ALA Associates and Sarah L. Hollinger appeal from a judgment of the Supreme Court, Nassau County (Joseph, J.), entered January 10, 2002, which, upon an order of the same court dated October 15, 2001, granting the petition, is in favor of the petitioner and against them in the principal sum of $551,687.42. ORDERED that the proceeding is converted to an action to set aside a transfer as fraudulent, the order to show cause is deemed to be the summons, and the petition is deemed to be the complaint (see CPLR 103[c]); and it is further, ORDERED that the judgment is affirmed; and it is further, ORDERED that one bill of costs is awarded to the respondents. The petitioner demonstrated by clear and convincing evidence that Andre Hollinger’s 1997 transfer of his partnership interest in ALA Associates to his wife Sarah L. Hollinger was a fraudulent conveyance (see Debtor and Creditor Law � 276; Marine Midland Bank v. Murkoff, 120 AD2d 122; compare MFS/Sun Life Trust-High Yield Series v. Van Dusen Airport Servs. Co., 910 F Supp 913). In opposition to the petitioner’s prima facie showing of entitlement to judgment as a matter of law, the appellants were required to demonstrate the existence of a triable issue of fact. The appellants failed to do so,and thus, judgment was properly entered in the petitioner’s favor for the relief requested in the petition (see CPLR 409[b]; Debtor and Creditor Law � 276; Zuckerman v. City of New York, 49 NY2d 557; Matter of Friends World College v. Nicklin, 249 AD2d 393; Marine Midland Bank v. Murkoff, supra). The appellants’ remaining contentions are raised for the first time on appeal and, in any event, are without merit. SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Feuerstein, J.P.; Friedmann, Schmidt and Mastro, JJ. MATTER OF ALLSTATE INSURANCE COMPANY, ap, v. ANDERSON, res – (INDEX NO. 16797/01)In a proceeding, inter alia, pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), dated June 11, 2002, as denied, without a hearing, that branch of the petition which was to permanently stay the arbitration. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for an evidentiary hearing to determine whether Nationwide Mutual Insurance Company, a/k/a Nationwide Assurance Company, a/k/a Colonial Insurance Company of Wisconsin, timely and validly disclaimed coverage of the offending vehicle for the subject accident; and it is further, ORDERED that the petitioner shall serve a supplemental notice of petition (see CPLR 305[a]) and amended petition (see CPLR 3025[b]) upon Nationwide Mutual Insurance Company, a/k/a Nationwide Assurance Company, a/k/a Colonial Insurance Company of Wisconsin, joining it as an additional respondent to the proceeding within 30 days of service upon it of a copy of this decision and order. The petitioner, Allstate Insurance Company (hereinafter Allstate), commenced this proceeding, inter alia, to permanently stay arbitration of its insured’s claim for uninsured motorist benefits on the ground that the offending vehicle was insured by Nationwide Mutual Insurance Company, a/k/a Nationwide Assurance Company, a/k/a Colonial InsuranceCompany of Wisconsin (hereinafter Nationwide). Alternatively, Allstate sought to add Nationwide as an additional respondent to the proceeding, and sought a framed issue hearing. Allstate’s insured, the respondent Reginald Anderson, opposed the petition, submitting a letter from Nationwide indicating that it had disclaimed coverage of the offending vehicle based on its insured’s failure to report and cooperate in the investigation of the subject accident. In reply, Allstate contended that there were issues of fact concerning whether Nationwide timely disclaimed coverage, and whether the disclaimer was valid. The Supreme Court denied the petition, without a hearing, and directed the parties to proceed to arbitration. We reverse, and remit the matter to the Supreme Court, Nassau County, for an evidentiary hearing on the issues of whether Nationwide timely disclaimed coverage of the offending vehicle, and whether the disclaimer was valid. Allstate made a prima facie showing that the offending vehicle was insured by Nationwide on the day of the accident through the submission of the police report and the registration record expansion from the New York State Department of Motor Vehicles (see Matter of State Farm Mut. Auto. Ins. Co. v. Youngblood, 270 AD2d 493; Matter of Nationwide Ins. Co. v. Sillman, 266 AD2d 551). The letter from Nationwide to its insured purporting to disclaim coverage, submitted by Anderson in opposition to the petition, merely raised issues of fact as to whether Nationwide timely and validly disclaimed coverage of the offending vehicle (see Matter of Lumbermens Mut. Cas. Co. v. Beliard, 256 AD2d 579). Thus, Nationwide must be joined as a party respondent to the proceeding, and the matter remitted to the Supreme Court, Nassau County, for an evidentiary hearing to resolve these issues. FEUERSTEIN, J.P., FRIEDMANN, SCHMIDT and MASTRO, JJ., concur. By Smith, J.P.; Goldstein, Crane and Rivera, JJ. MATTER OF GLENN B. (ANONYMOUS). SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES, ap; OESHA H. (ANONYMOUS), res – (PROCEEDING NO. 1) (DOCKET NO. N-1298-96) Matter of Shaterea B. (Anonymous). Suffolk County Department of Social Services, ap; OESHA H. (ANONYMOUS), res – (PROCEEDING NO. 2) (DOCKET NO. N-1299-96)In two related child protective proceedings pursuant to Family Court Act article 10, the petitioner appeals from so much of an order of the Family Court, Suffolk County (Lynaugh, J.), entered July 16, 2002, as, after a hearing and incorporating a decision of the same court, dated April 22, 2002, denied the application to change the permanency goals of the children, Shatera B. and Glenn B., to “free for adoption,” directed it to engage in reasonable efforts to strengthen the parental relationship, and directed certain visitation. ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements. A petition for an extension of foster care placement in accordance with a permanency plan for a child is governed by Family Court Act � 1055, which gives the court discretion to order successive extensions of up to one year each and requires a determination on whether an extension is inconsistent with the permanency plan established for the child (see Family Court Act � 1055[b][i], [iv][A], [B]). To extend the placement, the petitioner must establish, by a preponderance of the evidence, that the parent is not presently able to care for his or her children and that the continuation of foster care is in the children’s best interests (see Matter of Belinda B., 114 AD2d 70, 73). “[A]n overarching consideration always obtains for children to be returned to biological parents, if at all possible and responsible. When that cannot be done, the emphasis shifts to securing permanent, stable solutions and settings” (Matter of Dale P., 84 NY2d 72, 77 [citation omitted]). In this case, the petitioner failed to meet its burden of establishing, by a preponderance of the evidence, that the continuation of foster care and a plan of “free for adoption” was in the children’s best interests. The hearing evidence established that although the respondent mother was presently incarcerated and was expected to be released by February 2, 2003, she had actively participated in the drug treatment programs provided to her and had earned her GED. The mother had also made efforts to maintain contact with the children. In addition, it was demonstrated at the hearing that both children, who suffer from psychiatric problems, would benefit from being together, yet they resided in separate foster homes. Moreover, the Suffolk County Department of Social Services had failed to place the children in suitable pre-adoptive homes. These facts support the Family Court’s determination (see Matter of Marcel A., 254 AD2d 416, 417). SMITH, J.P., GOLDSTEIN, CRANE and RIVERA, JJ., concur. By Feuerstein, J.P.; Smith, McGinity and Cozier, JJ. MATTER OF C-AIR CUSTOMHOUSE BROKERS- FORWARDERS, INC. STILE, res; HEID, ET AL., ap – (INDEX NO. 7960/00)In a proceeding pursuant to Business Corporation Law article 11 to dissolve a corporation, Milton Heid and Augustus Antico appeal from so much of an order of the Supreme Court, Queens County (Dye, J.), dated January 18, 2002, as granted that branch of the petitioner’s motion which was for a preliminary injunction prohibiting the addition or removal of directors during the pendency of the dissolution proceeding. ORDERED that the order is affirmed insofar as appealed from, with costs. Under the circumstances of this case, the Supreme Court properly granted the petitioner’s request for a preliminary injunction (see Aetna Ins. Co. v. Capasso, 75 NY2d 860; Matter of Walsh v. Design Concepts, 221 AD2d 454). FEUERSTEIN, J.P., SMITH, McGINITY and COZIER, JJ., concur. By Goldstein, J.P.; Adams, Townes and Crane, JJ. MATTER OF CHERTOK, pet, v. RESNICK, ETC., res – Proceeding pursuant to CPLR article 78 to review a determination of the respondent dated September 3, 2002, which, inter alia, adhered to a prior determination dated April 22, 2002, temporarily suspending the petitioner’s pistol license until the final disposition of certain charges then pending against the petitioner in the Town of Clarkstown Justice Court, and directed the petitioner to surrender his firearms and permit. ADJUDGED that the proceeding is dismissed as academic, without costs or disbursements. On November 7, 2002, while this proceeding was pending, the criminal prosecution terminated with the petitioner’s conviction of driving while impaired. The petitioner acknowledges that this rendered academic his challenge to the determination dated September 3, 2002, and the interim suspension of his pistol permit. GOLDSTEIN, J.P., ADAMS, TOWNES and CRANE, JJ., concur. By Feuerstein, J.P.; Friedmann, Schmidt and Mastro, JJ. MATTER OF NELSON, M.D., P.C. aps, v. STROH, res – (INDEX NO. 18133/01)In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of certain counterclaims asserted in an arbitration, the petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Carter, J.), entered April 23, 2002, as denied that branch of their petition which was to stay as time-barred arbitration of certain counterclaims relating to the manner in which the respondent’s commission was calculated. ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the petition which was to stay arbitration of the counterclaim relating to calculation of the respondent’s commission for the 1993-1994 employment year and substituting therefor a provision granting that branch of the petition; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. The individual petitioners are physicians operating as professional corporations. Together, they operate the remaining petitioner, a joint venture, which provides medical services relating to the practice of ophthalmology. The respondent Edward M. Stroh is also a physician, and pursuant to an agreement dated June 9, 1993, he became an employee of the joint venture effective July 1, 1993. Insofar as is relevant to this appeal, the employment agreement provided that Dr. Stroh would receive a salary plus commission, which was to be a percentage of the joint venture’s billings resulting from Dr. Stroh’s services. Further, the commission was to be paid within 90 days after the close of the joint venture’s fiscal year, which was the end of the calendar year. The agreement also provided that any disputes arising out of or in connection with the agreement were to be submitted to arbitration. Effective April 1, 1995, however, the parties executed an amendment to the employment agreement (hereinafter the amendment) which, in relevant part, changed the manner in which Dr. Stroh’s compensation was calculated. The amendment also “recognized that as of July 1, 1996, [Dr. Stroh] shall be an equal partner in the joint venture.” However, in fact, the joint venture did not make Dr. Stroh a partner, and it eventually terminated his employment. In or about October 2000 the petitioners filed a demand for arbitration, alleging that Dr. Stroh violated the terms of the employment agreement, including a restrictive covenant contained therein. On or about December 12, 2000, Dr. Stroh filed an amended answer with counterclaims. In his counterclaims, he alleged, inter alia, that the joint venture breached the employment agreement by failing to make him a partner and by failing to pay him his proportionate share of the profits. He also sought an accounting. Finally, he alleged that the joint venture wrongfully terminated his employment and withheld his salary for the period from February 1, 1997, to March 6, 1997. By letter dated November 12, 2001, Dr. Stroh sought the arbitrators’ consent to file a second amended answer with counterclaims. Therein, he alleged an additional counterclaim, inter alia, to recover damages for breach of contract based on the manner in which the joint venture had calculated his commission from the inception of the employment agreement. Thereafter, the petitioners commenced the instant proceeding pursuant to CPLR article 75 to permanently stay arbitration of all proceedings to be held pursuant to the second amended answer and counterclaims. In relevant part, the petitioners claimed that the counterclaim relating to the manner in which Dr. Stroh’s commission was calculated was barred by the six-year statute of limitations. In opposition to the petition, Dr. Stroh claimed that this counterclaim related back to his first amended answer and counterclaims. By order entered April 23, 2002, the Supreme Court, inter alia, denied that branch of the petition which was to permanently stay arbitration of Dr. Stroh’s counterclaim relating to the manner in which his commission was calculated. It determined that because the commission payable to Dr. Stroh for the period 1994-1995 was not due until March 31, 1996, and Dr. Stroh’s second amended answer and counterclaims was served on November 12, 2001, the counterclaim relating to the calculation of that year’s commission was not barred by the six year statute of limitations. Next, the court determined that although the counterclaim relating to the calculation of the commission for period 1993-1994 was asserted more than six years after it arose, it was not barred by the statute of limitations because it related back to Dr. Stroh’s first amended answer and counterclaim (see CPLR 203[f]). The petitioners’ contention that Dr. Stroh’s counterclaim relating to the calculation of his commission for the 1994-1995 employment year was time-barred is without merit. We agree with the Supreme Court’s determination that the amendment to the employment agreement did not change when Dr. Stroh’s commission was due. As a result, pursuant to the employment agreement, Dr. Stroh’s commission for the 1994-1995 employment year was not due until March 31, 1996. Therefore, to the extent that Dr. Stroh’s second amended answer and counterclaims alleged breach of contract for the manner in which the joint venture calculated his commission for that year, it was not barred by the six-year statute of limitations (see CPLR 213). We agree with the petitioners, however, that Dr. Stroh’s counterclaim relating to the calculation of his commission for the 1993-94 employment year was time-barred. The Supreme Court correctly determined that the commission for that employment year was due byMarch 31, 1995, more than six years before Dr. Stroh’s second amended answer and counterclaims. However, the Supreme Court erroneously determined that this counterclaim related back to Dr. Stroh’s first amended answer and counterclaims, since the first amended answer and counterclaims “does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to” the second amended answer and counterclaims (see CPLR 203[f]). Rather, the counterclaim, based on the manner in which the joint venture calculated the 1993-1994 commission, sought recovery based on an entirely different set of factual allegations, and nothing in Dr. Stroh’s first amended answer and counterclaims indicated that he was alleging a cause of action to recover damages for breach of contract based on the manner in which the joint venture calculated his commissions (see Perez v. Wegman Cos., 181 AD2d 1010). FEUERSTEIN, J.P., FRIEDMANN, SCHMIDT and MASTRO, JJ., concur. By Feuerstein, J.P.; Goldstein, Miller and Rivera, JJ. MATTER OF FIREMAN’S INSURANCE COMPANY OF NEWARK, NJ, ap, v. SORTO, res-res; ET AL., PROPOSED ADDITIONAL res – (INDEX NO. 3483/02)In a proceeding pursuant to CPLR article 75 to permanently stay an uninsured motorist arbitration, the petitioner appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated June 3, 2002, which denied the petition and dismissed the proceeding. ORDERED that the order is reversed, on the law, with costs, the petition is granted, and the arbitration is permanently stayed. The petitioner disclaimed coverage based on the respondent’s failure to provide a timely notice of claim. The petitioner’s attorney averred that the respondent first gave notice of an uninsured motorist claim by means of a letter in early April 2001, six months after the subject loss. In opposition to the petition, the respondent submitted a letter from his prior counsel dated two days after the subject motor vehicle accident, apprising the petitioner of the respondent’s intention to file a claim for uninsured motorist benefits. Counsel’s affirmation in opposition to the petition, made without personal knowledge of whether the letter was in fact mailed, was not competent on this matter (see Stahl v. Stralberg, 287 AD2d 613). Accordingly, the Supreme Court erred in denying the petition. FEUERSTEIN, J.P., GOLDSTEIN, H. MILLER and RIVERA, JJ., concur. By Gail Prudenti, P.J.; Krausman, Goldstein and Schmidt, JJ. MATTER OF GALLANTE aps, v. REILLY, ETC. res – (INDEX NO. 14654/01)In a proceeding pursuant to CPLR article 78 to review six determinations of the Nassau County Sheriff’s Department dated May 25, 2001, May 29, 2001, June 11, 2001, June 11, 2001, June 27, 2001, and August 3, 2001, respectively, denying the petitioners benefits pursuant to General Municipal Law � 207-c, the petitioners appeal from a judgment of the Supreme Court, Nassau County (Burke, J.), dated February 22, 2002, which denied the petition and dismissed the proceeding. ORDERED that the judgment is affirmed, with costs. The petitioners failed to demonstrate that their respective injuries were incurred in the performance of special work related to the nature of heightened risks and duties to which correction officers are exposed in the criminal justice process, and that such injuries are compensable under General Municipal Law � 207-c (see Matter of Balcerak v. County of Nassau, 94 NY2d 253; Matter of Wagman v. Kapica, __ AD2d __ [2d Dept, Dec. 9, 2002]; Matter of Clements v. Panzarella, 297 AD2d 4; Matter of Theroux v. Reilly, 297 AD2d 384, lv granted 99 NY2d 503; Youngs v. Village of Penn Yan, 291 AD2d 852; Matter of Travison v. County of Albany, 291 AD2d 705; Matter of Sutherland v. Village of Suffern, 289 AD2d 582; Matter of Ertner v. County of Chenango, 280 AD2d 851; cf. Matter of Dobbertin v. Town of Chester, 292 AD2d 382). Accordingly, the Nassau County Sheriff’s Department had a rational basis to deny benefits under General Municipal Law � 207-c to each of the petitioners. PRUDENTI, P.J., KRAUSMAN, GOLDSTEIN and SCHMIDT, JJ., concur. By Santucci, J.P.; Smith, Miller and Adams, JJ. MATTER OF GREAT NORTHERN INSURANCE COMPANY, res, v. BALLINGER, ET AL., ap – (INDEX NO. 29366/01)In a proceeding pursuant to CPLR article 75, inter alia, to stay arbitration of an uninsured motorist claim, the appeal is from an order of the Supreme Court, Suffolk County (Oliver, J.), entered March 6, 2002, which granted the petition and stayed arbitration. ORDERED that the order is reversed, on the law, with costs, that branch of the petition which was for a temporary stay of arbitration pending a hearing is granted, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing on the issue of whether there was any physical contact between the nonparty Howard Druckman’s bicycle and an alleged hit-and-run vehicle. Physical contact is a condition precedent to an arbitration based upon a hit-and-run accident involving an unidentified vehicle (see Insurance Law � 5217; Matter of State Farm Mut. Auto. Ins. Co. v. Johnson, 287 AD2d 640). While direct contact between the insured and the unidentified vehicle is not required, the physical contact, as contemplated by Insurance Law � 5217, must involve the continued transmission of force indirectly or simultaneously through an intermediate agency, and the initial impact must be that of a collision between the unidentified vehicle with the complainant, the vehicle occupied by him, an obstruction, or other object causing the bodily injury (see Matter of Smith, 29 NY2d 116, 119; Matter of Allstate Ins. Co. v. Killakey, 78 NY2d 325). Arbitration is not foreclosedwhen the accident originates with the unidentified vehicle (see Matter of Allstate Ins. Co. v. Killakey, supra; see generally Motor Vehicle Acc. Ind. Corp. v. Eisenberg, 18 NY2d 1). In this case, the police reports concerning the accident do not state that there was any contact with the unidentified vehicle. The appellants raised an issue of fact in this regard by supplying an affidavit of the nonparty, Howard Druckman, in which Druckman averred that the unidentified motor vehicle abruptly crossed into his path causing a collision between the unidentified vehicle and Druckman’s bicycle which then caused a collision between Druckman’s bicycle and the injured appellant’s bicycle. Under these circumstances, the matter must be remitted to the Supreme Court, Suffolk County, for a hearing to determine if there was physical contact between the unidentified motor vehicle and Druckman’s bicycle. SANTUCCI, J.P., SMITH, H. MILLER and ADAMS, JJ., concur. By Goldstein, J.P.; Adams, Townes and Crane, JJ. MATTER OF GRIFFIN, res, v. SCOTT, ap – (DOCKET NO. V-308-99)In a child custody proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Suffolk County (Sweeney, J.), dated April 25, 2002, as, after a hearing, denied his petition for a change of custody of the subject child from the mother to him. ORDERED that the order is affirmed insofar as appealed from, with costs. The best interests of the child are the paramount consideration in making any award of custody (see Friederwitzer v. Friederwitzer, 55 NY2d 89, 94; Matter of Sullivan v. Sullivan, 190 AD2d 852; Matter of Ellen K. v. John K., 186 AD2d 656). Because any custody determination necessarily depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the trial court’s findings (see Eschbach v. Eschbach, 56 NY2d 167; Matter of Sullivan v. Sullivan, supra). Its findings “will not be disturbed unless they lack a sound and substantial basis in the record” (Kuncman v. Kuncman, 188 AD2d 517, 518). Contrary to the appellant’s contentions, the Family Court’s determination has a sound and substantial basis. Moreover, the Family Court was not required to follow the recommendations of the forensic examiner and the Law Guardian (see Berstell v. Krasa-Berstell, 272 AD2d566; Matter of Hopkins v. Wilkerson, 255 AD2d 319). The Family Court did not arbitrarily disregard the expert opinion offered in this case (see Young v. Young, 212 AD2d 114). Rather, its reasons for rejecting the recommendations were fully explained and its reasoning is supported by the record (see Matter of Hopkins v. Wilkerson, supra). GOLDSTEIN, J.P., ADAMS, TOWNES and CRANE, JJ., concur. By Miller, J.P.; Friedmann, Cozier and Mastro, JJ. MATTER OF SUSAN HANLON, res, v. HANLON, JR., ap – (DOCKET NO. X-2198-01/U-58-98)In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, Westchester County (Horowitz, J.), entered February 27, 2002, as denied his objections to an order of the same court (Kava, H.E.), entered October 11, 2001, which denied his motion, in effect, for a downward modification of his child support obligation. Justice Mastro has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the order is affirmed insofar as appealed from, with costs. The Family Court properly denied the father’s objections to the order entered October 11, 2001. The father failed to demonstrate that a substantial, unanticipated, and unreasonable change in circumstances warranted a downward modification of his child support obligation (see Beard v. Beard, __ AD2d __ [2d Dept, Dec. 2, 2002]; Linder v. Linder, 297 AD2d 711; Matter of Harris v. Harris, 229 AD2d 439; Quilty v. Quilty, 169 AD2d 979; Praeger v. Praeger, 162 AD2d 671; Cashin v. Cashin, 131 AD2d 716). The father’s remaining contention is without merit (see Matter of Bolotnikov v. Bolotnikov, 262 AD2d 318; Giryluk v. Giryluk, 149 AD2d 665; Besharov, PracticeCommentaries, McKinney’s Cons Laws of NY, Book 29A, Family Court Act � 451 at 482-483). S. MILLER, J.P., FRIEDMANN, COZIER and MASTRO, JJ., concur. By Santucci, J.P.; Krausman, Adams and Crane, JJ. MATTER OF JURON & MINZNER, P.C. MINZNER, res; JURON, ETC., ap – (INDEX NO. 4243/94)In a proceeding pursuant to Business Corporation Law article 11 to dissolve a professional corporation, Albert A. Juron appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Westchester County (Rudolph, J.) entered April 18, 2002, which, inter alia, denied his motion, among other things, to direct the petitioner to post an undertaking in the amount of $17,500. ORDERED that the order is affirmed insofar as appealed from, with costs. In this proceeding pursuant to Business Corporation Law article 11 to dissolve a professional corporation formed by Albert A. Juron and Edward S. Minzner, Juron contends that Minzner failed to adequately safeguard a corporate asset, i.e., an attorney’s charging lien on settlement proceeds in a personal injury case. Juron moved, inter alia, to direct Minzner to post an undertaking in the amount of $17,500, representing Juron’s half of the proposed legal fee owed. The undertaking was to be paid to Juron in the event that Minzner failed to perfect an appeal from the order dismissing the action to collect on the charging lien or if Minzner perfected the appeal but lost. In fact, Minzner settled the case for $7,500 and did not perfect an appeal from so much of the order as dismissed the action. The Supreme Court properly refused to direct Minzner to post an undertaking in the amount of $17,500. Contrary to Juron’s contentions, an appeal from the order dismissing the action to recover on the charging lien was rendered academic by Minzner’s settlement with the insurance company for $7,500. Moreover, Juron failed to provide sufficient evidence from which the Supreme Court could have concluded that the $7,500 settlement did not represent fair compensation to the dissolved firm. Further, in light of our determination in Juron and Minzner, P.C. v. State Farm Ins. Co. (__ AD2d __ [decided herewith]), Juron’s contention that Minzner alone should bear responsibility for a sanction imposed on the dissolved firm is academic. Juron’s remaining contention is without merit. SANTUCCI, J.P., KRAUSMAN, ADAMS and CRANE, JJ., concur. By Altman, J.P.; Friedmann, McGinity and Crane, JJ. MATTER OF C.A. KARMEL, ETC. aps, v. BOARD OF APPEALS OF CITY OF WHITE PLAINS res – (INDEX NO. 13232/01)In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Appeals of the City of White Plains dated July 30, 2001, which denied the petitioners’ challenge to the issuance of a building permit to the respondent First Assembly of God Church, the appeal is from a judgment of the Supreme Court, Westchester County (Molea, J.), dated December 20, 2001, which denied the petition and dismissed the proceeding. ORDERED that the judgment is affirmed, with one bill of costs to the municipal respondents. The determination of the respondent Board of Appeals of the City of White Plains dated July 30, 2001, was neither arbitrary nor capricious and had a rational basis (see Matter of Ficalora v. Planning Bd. of Town of E. Hampton, 262 AD2d 320; Matter of Johnson v. Village of Westhampton Beach, 244 AD2d 335). In light of our determination, we need not reach the remaining contentions. ALTMAN, J.P., FRIEDMANN, McGINITY and CRANE, JJ., concur. By Altman, J.P.; Krausman, McGinity and Cozier, JJ. MATTER OF LEGION OF CHRIST, INCORPORATED, ap, v. TOWN OF MOUNT PLEASANT, ETC. res – (INDEX NO. 15524/97)In a proceeding pursuant to Real Property Tax Law article 7, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Rosato, J.), entered September 28, 2001, which, inter alia, denied its motion for partial summary judgment declaring that the subject property is tax exempt and granted that branch of the cross motion of the respondent Town of Mount Pleasant which was for summary judgment declaring that the petitioner’s proposed use of the property was illegal without a special permit and, therefore, taxable. ORDERED that the order and judgment is affirmed, with costs. The 168-acre unimproved parcel of property which is the subject of this proceeding is located in the OB-1 General Office Building District of the Town of Mount Pleasant. Pursuant to the Town Code of the Town of Mount Pleasant, principal use of the property for a church or other place of worship is permitted as of right, while use as a religious, charitable, or eleemosynary institution is a permitted special use for which a special permit is required. The petitioner contends that it proposes to use the property as a place of worship, and therefore it is not required to obtain a special permit and is entitled to a full tax exemption for the property. However, accepting the petitioner’s definition as to whatconstitutes a place of worship, only certain portions of the property are to be used for outdoor worship. The principal use of the property will be for religious institution purposes, not for worship. Consequently, a special permit is required. Since the petitioner does not have such a permit, its proposed use of the property is illegal and it is not entitled to a tax exemption (see Matter of Oxford Group-Moral Re-Armament MRA v. Sweet, 309 NY 744; Matter of Colella v. Board of Assessors of County of Nassau, 266 AD2d 286, revd on other grounds 95 NY2d 401; see also McGann v. Incorporated Vil. of Old Westbury, 293 AD2d 581). The petitioner’s remaining contention is without merit. ALTMAN, J.P., KRAUSMAN, McGINITY and COZIER, JJ., concur. By Goldstein, J.P.; Adams, Townes and Crane, JJ. MATTER OF LESLIE & PENNY FOR PENNY PREVILLE, INC. GREENBERG, res; SISKIN aps; MADAY, nonparty. (INDEX NO. 0147581/01)In a proceeding pursuant to Business Corporation Law � 1104-a for the judicial dissolution of a closely-held corporation, Jay Siskin and Penny Siskin appeal from an order of the Supreme Court, Nassau County (Austin, J.), dated July 3, 2002, which determined that the corporate trade name “Penny Preville” was a corporate asset and that its value was subject to distribution in dissolution. ORDERED that on the court’s own motion, the appellants’ notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5702[c]); and it is further, ORDERED that the order is affirmed, with costs to the respondent. In the 1970s, Penny Siskin and Jay Siskin (hereinafter the Siskins), started a business designing, manufacturing, and selling high-quality jewelry. Penny Siskin, using her maiden name, Penny Preville, was the primary jewelry designer. In 1990, the Siskins incorporated the business under the name Penny Preville, Inc. (hereinafter the Corporation). The Siskins were its sole shareholders. In 1993 the petitioner, Leslie Greenberg, purchased 100 shares of unissued stock in the Corporation, which constituted 50 percent of the total shares, for a sum equal to the value of the Corporation’s tangible assets, thus doubling the Corporation’s issued stock and its net assets. At that time, the parties entered into a Shareholders’ Agreement (hereinafter the Agreement). The Corporation’s profits grew significantly throughout the 1990s, as did dissension among the shareholders. In January 2000 the shareholders changed the Corporation’s legal name to Leslie & Penny for Penny Preville, Inc., by unanimous written consent. By September 2001 the parties’ conflict effectively prevented them from conducting the business of the Corporation, and the petitioner commenced this proceeding for judicial dissolution. The Siskins agreed to the dissolution and the appointment of a receiver, but maintained that they had the exclusive right to use the trade name “Penny Preville,” and thus, to the value of the Corporation’s goodwill associated therewith. Therefore, the Siskins claimed, the value of that part of the Corporation’s goodwill was not distributable upon dissolution. The Agreement states, in relevant part, that “[u]nder any basis or reason for termination or dissolution of the Corporation, regardless of fault, [the Siskins] shall have the exclusive rights to the continued use of the trade name ‘Penny Preville.’” We agree with the Supreme Court that this clause only gives the Siskins the exclusive right to use the trade name “Penny Preville” upon dissolution. The Agreement does not explicitly give the Siskins the right to the value of the Corporation’s goodwill associated with the trade name “Penny Preville,” nor does it except such goodwill or the trade name from the Corporation’s assets distributable upon dissolution. Furthermore, there is no evidence that the Siskins merely licensed the use of the trade name to the Corporation. In adjudicating the rights of the parties under the Agreement, this court may not read any additional provisions into that agreement (see W.W.W. Assocs. v. Giancontieri, 77 NY2d 157, 162; DelCasino v. Koeppel, 207 AD2d 374; cf. Dwyer v. Nicholson, 193 AD2d 70, 75-76). The court, therefore, cannot accept the Siskins’ invitation to read into the Agreement an additional provision giving them continued ownership of the trade name or of its associated goodwill. Thus, the Siskins are entitled only to the exclusive rights of continued use of the name “Penny Preville” upon dissolution, but the value of the Corporation’s goodwill, including that associated with the trade name “Penny Preville,” which both parties agree is a valuable asset, should be distributed along with its other assets upon dissolution (cf. Dawson v. White & Case, 88 NY2d 666, 672). GOLDSTEIN, J.P., ADAMS, TOWNES and CRANE, JJ., concur. By Gail Prudenti, P.J.; Krausman, Goldstein and Schmidt, JJ. MATTER OF NEU, ap, v. NEU, res – (INDEX NO. X-1726/01)In a child custody proceeding pursuant to Family Court article 6, the mother appeals from an order of the Family Court, Dutchess County (Brands, J.), dated June 20, 2001, which, inter alia, after a hearing, denied her petition for a change in custody from the father to her. ORDERED that the order is affirmed, without costs or disbursements. It is well established that a change in custody should be made only if the totality of the circumstances warrants a change in the best interests of the child (see Matter of Lopez v. Lopez, 233 AD2d 398). Moreover, since any custody determination depends to a very great extent upon the hearing court’s assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great respect and will not be disturbed unless they lack a sound and substantial basis in the record, or are contrary to the weight of the evidence (see Matter of Lopez v. Lopez, supra; Alanna M. v. Duncan M., 204 AD2d 409). While “no agreement can bind the court to a particular disposition, the parties’ own agreement as to who should have custody constitutes a ‘weighty factor’ to which priority should be accorded absent extraordinary circumstances” (Alanna M. v. Duncan M., supra at 409). This policy is based on the belief that the stability it assures will serve the child’s best interests (see Alanna M. v. Duncan M., supra at 409). Here, the witnesses testifying at the hearing unanimously agreed that both the child’s performance in school and his ability to cope with the frustrations caused by the parents’ separation had improved since the parties agreed on a new custody arrangement approximately five months before the mother filed her petition. In addition, the father testified that he was attending parenting classes. The child’s therapist testified that living conditions at the father’s home, about which several persons had earlier expressed concern, had improved. Finally, the Law Guardian explicitly revoked her earlier petition, stating that the problems about which she had been concerned had been ameliorated. Under such circumstances, the Family Court properly refused to modify the child’s custody arrangements so as to grant custody to the mother. Moreover, the Family Court providently exercised its discretion in declining to interview the child given the absence of any other evidence justifying the modification requested by the mother (see Cardarelli v. Cardarelli, 277 AD2d 225; Haselkorn v. Haselkorn, 84 AD2d 809; Matter of Walker v. Tallman, 256 AD2d 1021). PRUDENTI, P.J., KRAUSMAN, GOLDSTEIN and SCHMIDT, JJ., concur. By Feuerstein, J.P.; Smith, McGinity and Goldstein, JJ. MATTER OF PECKHAM MATERIALS CORPORATION, res, v. WESTCHESTER COUNTY, NEW YORK ap – (INDEX NO. 2721/00)In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review certain air quality provisions of Westchester County Sanitary Code articles 13 and 21, and an action for a judgment declaring, among other things, that these provisions are unconstitutional, the appeal is from an order of the Supreme Court, Westchester County (Perone, J.), entered June 27, 2001, which converted the hybrid proceeding and action solely to an action for a declaratory judgment and denied the motion to dismiss the complaint. Justice McGinity has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the order is modified by (1) deleting the provision thereof converting the hybrid proceeding and action solely to an action for a declaratory judgment and (2) deleting the provision thereof denying those branches of the motion which were to dismiss the first and the third through ninth causes of action and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, with costs to the appellants. In this hybrid proceeding and action, Peckham Materials Corporation (hereinafter Peckham) sought to annul certain air quality provisions of Westchester CountySanitary Code article 13, � 873.1301, et seq., and article 21, � 873.2109, referred to as the Air Fee Program (hereinafter the Program). Peckham claimed, inter alia, that the Program was an illegal tax, unconstitutional, and inconsistent with the Environmental Conservation Law. Peckham operates facilities which are charged emission fees under the Program. The appellants in the proceeding (hereinafter referred to collectively as the County) moved to dismiss the petition on the ground that it failed to state a cause of action and was barred by the statute of limitations. The Supreme Court erred in converting the hybrid proceeding and action solely to an action for a declaratory judgment and in denying those branches of the County’s motion which were to dismiss the first and third through ninth causes of action. The proceeding seeks to annul the Program, which was enacted by the County’s Board of Health pursuant to its authority under Public Health Law � 347(1) (see Westchester County Charter � 149.21). As such, the Program is a quasi-legislative act of an administrative body, rather than an act promulgated by a legislative body (see New York City Health & Hosp. Corp. v. McBarnette, 84 NY2d 194). Accordingly, Peckham’s challenges to the Program are reviewable in a proceeding pursuant to CPLR article 78 and the four-month statute of limitations applies (see New York City Health & Hosp. Corp. v. McBarnette, supra; Federation of Mental Health Ctrs. v. DeBuono, 275 AD2d 557). Peckham’s claims set forth in the first and third through ninth causes of action are clearly time-barred. This matter was commenced in February 2000. Program � 873.1301 was enacted in 1987 and amended in 1993, and Program � 873.2109 was enacted in 1991 and amended in 1993. The fact that Peckham couched its claims in constitutional terms does not avoid the application of the four-month statute of limitations (see Federation of Mental Health Ctrs. v. DeBuono, supra). Peckham’s claims regarding the emission fees it was required to pay under the program from 1991 through 1999 were also time-barred, as even the 1999 fees were imposed well over four months before the proceeding was commenced. Therefore, the County’s motion to dismiss the proceeding as time-barred should have been granted with respect to all the causes of action except the second cause of action. In the second cause of action, Peckham alleged that the County failed, inter alia, to maintain the records required pursuant to Public Health Law � 606 and relevant regulations with respect to its administration of the Program. The County failed to establish that this cause of action was time-barred, and did not demonstrate that the allegations failed to state a viable cause of action. Accordingly, the Supreme Court properly denied the County’s motion insofar as it sought dismissal of the second cause of action. The parties’ remaining contentions are without merit. FEUERSTEIN, J.P., SMITH, McGINITY and GOLDSTEIN, JJ., concur. By Ritter, J.P.; Miller, Miller and Cozier, JJ. MATTER OF JESSICA MARIE Q. (ANONYMOUS). WESTCHESTER COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-res; EDNA M. Z. (ANONYMOUS), res; REED, nonparty-ap – (PROCEEDING NO. 1) (DOCKET NO. B-121/01) Matter of Leslie Ann Z. (Anonymous). Westchester County Department of Social Services, petitioner-res; EDNA M. Z. (ANONYMOUS), res; REED, nonparty-ap – (PROCEEDING NO. 2) (DOCKET NO. B-122/01) Matter of Katie Lynn B. (Anonymous). Westchester County Department of Social Services, petitioner-res; EDNA M. Z. (ANONYMOUS) res; REED, nonparty-ap – (PROCEEDING NO. 3) (DOCKET NO. B-123/01)In three related proceedings pursuant to Social Services Law � 384-b to terminate parental rights on the ground of permanent neglect, the Law Guardian appeals from three orders of fact-finding and disposition (one as to each child) of the Family Court, Westchester County (Walker, J.), all entered May 9, 2002, which, after a fact-finding hearing on inquest and a dispositional hearing, terminated the parents’ rights with respect to the children, and transferred custody of the children to the Westchester County Department of Social Services for purposes of adoption. In all three proceedings, the Law Guardian took direct appeals to the Court of Appeals pursuant to CPLR 5601(b)(2). By three orders dated July 9, 2002 (one as to each child), the Court of Appeals transferred the appeals to this court on the ground that no direct appeal lies when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, � 3[b][2]; � 5[b]; CPLR 5601[b][2]). ORDERED that the orders are affirmed, without costs or disbursements. The Law Guardian argues that Social Services Law � 384-b(3)(i) deprives permanently neglected children of their rights to substantive and procedural due process under the Fifth and Fourteenth Amendments to the United States Constitution. Specifically, the statute does not require proof of the likelihood that the child will be placed for adoption in determining whether the parental rights of a child should be terminated. He further argues that Social Services Law � 384-b(3)(l) violates the substantive and procedural due process rights of permanently neglected children to the extent it compels the filing of a petition for termination of parental rights when adoption of a permanently-neglected child is unlikely. The Law Guardian contends that the child’s fundamental constitutional right in his or her parents is offended by the unconditional termination of parental rights, without providing that termination becomes final only upon the adoption of the child, and by not including a provision permitting visitation if the child so wishes. Natural parents have a fundamental liberty interest in the care, custody, and management of their child, as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution (see Santosky v. Kramer, 455 US 745). “[T]he Due Process Clause would be offended ‘[if] a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest’” (Quilloin v. Walcott, 434 US 246, 255, quoting Smith v. Organization of Foster Families, 431 US 816, 862-863; see Nicholson v. Williams, 203 F Supp 2d 153; Matter of Terrance G., 190 Misc 2d 224). Even assuming that under the circumstances present here, where a biological parent has been adjudicated to have permanently neglected a child, the child may claim a fundamental due process right to be raised by that parent, the Social Services Law, while impinging upon that right, is narrowly tailored to serve the compelling interest of protecting the child (see generally Ware v. Valley Stream High School Dist., 150 AD2d 14, mod 75 NY2d 114). While Social Services Law � 384-b(3)(i) does not require the Family Court to consider the likelihood of a child’s adoption when determining whether or not to terminate the rights of permanentlyneglectful parents, the statute does not prohibit the Family Court from doing so (see e.g. Matter of Gina I., 270 AD2d 21). Further, while Social Services Law � 384-b(3)(l) requires the agency to file a parental rights termination petition under certain circumstances, the final disposition is not automatically the termination of parental rights. It must be in the best interests of the child, which is always the “paramount concern” at any dispositional hearing (Matter of Sylvia Esther O., 253 AD2d 465). We further note that there is authority permitting the Family Court to allow post-termination visitation, provided doing so is in the child’s best interests (see Matter of Corinthian Marie S., 297 AD2d 382). In this case, the evidence at the dispositional hearing demonstrated that the parents never completed, as mandated, a substance abuse rehabilitation program or a parenting class, had barely any contact with the children, and utterly failed to plan for the children’s futures. Under these circumstances, termination of the parents’ rights, and freeing the children for adoption, was in the children’s best interests, as opposed to a suspended judgment and continued visits with the parents, even if the likelihood of adoption was a required consideration (see Matter of Gina I., supra; Matter of Victoria B., 185 AD2d 811). The Law Guardian also challenges the constitutionality of Family Court Act �� 631 through 634, to the extent those sections specifically fail to provide for a suspended judgment pending adoption (if any) in cases in which adoption is unlikely. However, since the Law Guardian failed to include in his notice to the Attorney-General the constitutional challenges to those statutes, and did not argue to the Family Court that they were unconstitutional, his challenge is not properly before this court (see Matter of Coleman v. Thomas, 295 AD2d 508; Emmer v. Emmer, 69 AD2d 850). The Law Guardian’s remaining contentions are without merit. RITTER, J.P., S. MILLER, H. MILLER and COZIER, JJ., concur. By Santucci, J.P.; McGinity, Luciano and Schmidt, JJ. MATTER OF ROMAN CATHOLIC DIOCESE OF ROCKVILLE CENTRE, NEW YORK, res, v. BOARD OF ASSESSORS OF INCORPORATED VILLAGE OF OLD WESTBURY ap – (INDEX NO. 9483/01)In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Assessors of the Incorporated Village of Old Westbury and the Board of Assessment Review of the Incorporated Village of Old Westbury, dated February 20, 2001, which denied the petitioner’s application for a real property tax exemption on certain property for the 2001-2002 tax year, the Board of Assessors of the Incorporated Village of Old Westbury and the Board of Assessment Review of the Incorporated Village of Old Westbury appeal from a judgment of the Supreme Court, Nassau County (Phelan, J.), entered September 24, 2001, which denied the petition without prejudice to renewal. ORDERED that the appeal is dismissed, without costs or disbursements, as the appellants are not aggrieved by the judgment appealed from (see CPLR 5511; Bird v. Bird, 111 AD2d 204; see also McGann v. Incorporated Vil. of Old Westbury, 293 AD2d 581). SANTUCCI, J.P., McGINITY, LUCIANO and SCHMIDT, JJ., concur. By Miller, J.P.; Friedmann, Cozier and Mastro, JJ. MATTER OF TONY T. (ANONYMOUS). MIRACLE MAKERS, INC., res; ROBERTA T. (ANONYMOUS), ap – (INDEX NO. B 9717-00)In a proceeding pursuant to Social Services Law � 384-b to terminate the mother’s parental rights on the ground of permanent neglect, the mother appeals from an order of the Family Court, Queens County (Bogacz, J.), dated April 8, 2002, which denied her motion to vacate her default in appearing at the fact-finding and the dispositional hearings. Justice Mastro has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the order is affirmed, without costs or disbursements. It is well settled that whether to relieve a party of an order entered on default is a matter left to the sound discretion of the court (see M.D. & Son Contr. v. American Props., 179 AD2d 519; Silveri v. Laufer, 179 AD2d 633). The party seeking to vacate a default must establish that there is a reasonable excuse for the default and that there exists a meritorious defense (see Matter of Little Flower Children’s Servs. v. Vernon J., 213 AD2d 548). In this case, the mother failed to sustain her burden in this respect. The mother’s remaining contentions are without merit. S. MILLER, J.P., FRIEDMANN, COZIER and MASTRO, JJ., concur. By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. MATTER OF TRANSTATE INSURANCE COMPANY. ESTIMINET, INC., ap; NEW YORK STATE SUPERINTENDENT OF INSURANCE, AS LIQUIDATOR OF TRANSTATE INSURANCE COMPANY, res – (INDEX NO. 30110/97)In a liquidation proceeding pursuant to Insurance Law article 74, the claimant, Estiminet, Inc., appeals from an order of the Supreme Court, Nassau County (DeMaro, J.), dated February 5, 2002, which granted the motion of the respondent New York State Superintendent of Insurance to confirm the report of a referee disallowing its claim for a defense and indemnification in an action entitled Lehanka v. Heffrons, pending in the Supreme Court, Suffolk County, under Index No. 26742/98, and denied its cross motion to disaffirm the referee’s report. ORDERED that the order is affirmed, with costs. It is well settled that an insurance carrier can be relieved of its duty to defend if it establishes, as a matter of law, that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision (see Spoor-Lasher Co. v. Aetna Cas. & Sur. Co., 39 NY2d 875, 876; Allstate Ins. Co. v. Bostic, 228 AD2d 628). The claimant, Estiminet, Inc. (hereinafter Estiminet), the owner of a restaurant/bar doing business under the name “Heffrons,” sought a defense and indemnification from the New York State Superintendent of Insurance, as Liquidator of Transtate Insurance Company (hereinafter the Insurer), under its commercial general liability policy in an actioncommenced against it by Christopher Lehanka. Since the underlying action arose from an assault and battery, the Supreme Court properly confirmed the referee’s report, affirming the Insurer’s denial of the claim based upon a policy endorsement excluding claims arising from assault and battery (see Mount Vernon Fire Ins. Co. v. Creative Hous., 88 NY2d 347, 350). The appellant’s remaining contentions are without merit. SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Florio, J.P.; Schmidt, Adams and Crane, JJ. MATTER OF RAMAZAN U., JR., (ANONYMOUS) PRESENTMENT AGENCY, res; BELKIS P. (ANONYMOUS), ap – (PROCEEDING NO. 1) (DOCKET NO. N-13552/98) Matter of Belkis P. (Anonymous), ap, v. RAMAZAN U. (ANONYMOUS), res – (PROCEEDING NO. 2) (DOCKET NO. V-15113/96) Matter of Ramazan U. (Anonymous), res, v. BELKIS P. (ANONYMOUS), ap – (PROCEEDING NO. 3) (DOCKET NO. V-16313/98)In related child protective and custody proceedings pursuant to Family Court Act articles 6 and 10, the mother appeals from a dispositional order of the Family Court, Queens County (DePhillips, J.), dated December 22, 2000, which, upon a determination of the same court, after a fact-finding hearing, found that she had emotionally neglected the subject child, granted custody of the subject child to the father, and directed that her visitation with the child be supervised. Justice Schmidt has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the order of disposition is affirmed, without costs or disbursements. The finding of the Family Court, after conducting a complete evidentiary hearing, that the mother had emotionally neglected the subject child was based on a preponderance of the credible evidence (see Matter of Tammie Z., 66 NY2d 1, 3; Matter of Krewsean S., 273 AD2d 393, 394; Matter of Barbara S., 244 AD2d 556; Matter of Tevina W., 237 AD2d 452; Matter of Danielle M., 151 AD2d 240, 243). The documented efforts of the mother to interfere with the visitation of the noncustodial parent and to alienate the child from his father are sufficient to support a finding of neglect (see Matter of Hartsough v. Hartsough, 270 AD2d 349; Maloney v. Maloney, 208 AD2d 603). The essential consideration in making an award of custody is the best interests of the child (see Eschbach v. Eschbach, 56 NY2d 167, 171; Matter of Ebert v. Ebert, 38 NY2d 700, 702; Matter of Canazon v. Canazon, 215 AD2d 652; Alanna M. v. Duncan M., 204 AD2d 409). The determination of the hearing court, which had the opportunity to see and hear the witnesses, should not be disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v. Eschbach, supra at 174; Matter of Darlene T., 28 NY2d 391, 395; Bunim v. Bunim, 298 NY 391, 393; Matter of Morse v. Mignone, 240 AD2d 583; Canazon v. Canazon, supra). There is no basis to alter the court’s award of custody to the father in this case (see Matter of Hartsough v. Hartsough, supra; Matter of Morse v. Mignone, supra; Canazon v. Canazon, supra at 653). Supervised visitation is not considered a deprivation of meaningful access to the child (see Matter of Licitra v. Licitra, 232 AD2d 417, 418; Matter of Carl J. B. v. Dorothy T., 186 AD2d 736, 738; Lightbourne v. Lightbourne, 179 AD2d 562), and the provision of the dispositional order directing supervised visitation is supported by the record. The mother’s remaining contentions are without merit. FLORIO, J.P., SCHMIDT, ADAMS and CRANE, JJ., concur. By Gail Prudenti, P.J.; Santucci, Goldstein and Cozier, JJ. MURRIN, ETC., ap, v. FORD MOTOR COMPANY, res – (INDEX NO. 2080/01)In an action, inter alia, to recover damages for a violation of General Business Law � 349, breach of contract, and breach of express warranty, the plaintiff appeals (1) from an order of the Supreme Court, Rockland County (Sherwood, J.), dated October 5, 2001, which, among other things, granted the defendant’s motion to dismiss the complaint, and (2), as limited by his brief, from so much of an order of the same court, dated January 18, 2002, as, upon granting renewal and reargument, adhered to the original determination. Presiding Justice Prudenti has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the appeal from the order dated October 5, 2001, is dismissed, as that order was superseded by the order dated January 18, 2002, made upon renewal and reargument; and it is further, ORDERED that the order dated January 18, 2002, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the respondent. The plaintiff purchased a 2001 Ford F-150 truck with an optional trailer towing package from an undisclosed seller in February 2001. This option package was specified to include an upgraded radiator. Upon delivery of the truck, the plaintiff learned thatit was not equipped with an upgraded radiator and that a large number of other purchasers also ordered but did not receive the radiator upgrade. When the manufacturer of the F-150 truck, the defendant Ford Motor Company (hereinafter Ford), failed to upgrade the plaintiff’s radiator, he commenced this action against Ford on behalf of persons who purchased or leased Ford F-150 trucks, model years 1999, 2000, or 2001, which were specified to include radiator upgrades from the standard radiator, but which were delivered without the specified upgraded radiators. The plaintiff alleged that Ford breached its contractual obligations, breached its express warranties, and violated General Business Law � 349 by failing to furnish the upgraded radiators as specified. Ford successfully moved to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action. After the complaint was dismissed, Ford announced a customer satisfaction program offering the plaintiff and some members of the proposed class, cash discounts toward the purchase of another Ford vehicle, or a free radiator upgrade. Ford explained that the mistake in the specifications of the F-150 was a publication error. Thereafter, the plaintiff moved for leave to renew and reargue, contending that Ford admitted the allegations in the complaint, but the Supreme Court adhered to its prior determination. Assuming the truth of the allegations in the complaint and according the plaintiff the benefit of all favorable inferences, the Supreme Court properly dismissed the complaint (see CPLR 3013; Edmond v. International Bus. Machs. Corp., 91 NY2d 949). While an express warranty may be formed by advertisements (see Funk v. Kaiser-Frazer Sales Corp., 23 AD2d 771), and privity is not required to sustain a cause of action seeking to recover damages for breach of an express warranty (see Randy Knitwear v. American Cyanamid Co., 11 NY2d 5), the plaintiff failed to plead his cause of action to recover damages for breach of an express warranty with the requisite specificity (see CPLR 3013). In particular, the plaintiff failed to allege that he understood that the Ford advertisements, stating certain vehicle specifications that were not ultimately met, were part of the bargain or that he even was aware of any of these advertisements before his purchase (see CBS, Inc. v. Ziff Davis Publ. Co., 75 NY2d 496). Accordingly, he failed to allege an essential element of the formation of an express warranty pursuant to UCC 2-313. Moreover, by failing to plead or ever identify the seller of his Ford vehicle, the plaintiff failed to properly plead the necessary provisions of the contract upon which his breach of contract claim was based and failed to plead the very existence of that contract (see Stabulas v. Brooks Piece Dye Works Corp., 111 AD2d 803). The plaintiff also did not adequately plead a cause of action alleging a violation of General Business Law � 349, since he failed to allege that the deceptive acts complained of took place within the State of New York (see Goshen v. Mutual Life Ins. Co., 98 NY2d 314). Finally, the plaintiff is not entitled to an attorney’s fee merely because Ford voluntarily chose to offer the relief sought in the dismissed complaint (see Auguste v. Hammons, 285 AD2d 417). PRUDENTI, P.J., SANTUCCI, GOLDSTEIN and COZIER, JJ., concur. By Goldstein, J.P.; Adams, Townes and Crane, JJ. NOVAK, ap, v. PAPISH res – (INDEX NO. 28523/95)In an action to recover damages for conversion, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Burke, J.), dated June 11, 2001, which denied his motion for leave to serve an amended complaint to add a defendant, and directed that discovery be completed and the matter noticed for trial by a date certain. ORDERED that the order is affirmed, without costs or disbursements. In 1995, the plaintiff commenced this action to recover damages for conversion of a thoroughbred racehorse. In 2000 the plaintiff moved for leave to serve an amended complaint to add a defendant. By order dated August 14, 2000, the Supreme Court granted the motion, authorizing the plaintiff to serve the amended pleading, along with a copy of the order with notice of entry, within 30 days. Nothing happened in the case until May 2001, when the plaintiff moved again for the same relief. In support of his motion, the plaintiff claimed that he never received a copy of the order dated August 14, 2000, and that he was disabled by a stroke. By order dated June 11, 2001, the Supreme Court denied the motion, noting that it had been the subject of a prior application which was granted conditionally. The court refused to vacate the plaintiff’s default in complying with the condition imposed by the prior order dated August 14, 2000, on the ground that the plaintiff had been “so dilatory in asserting his rights in this overly protracted action.” The determination of whether to vacate a plaintiff’s default “rests in the sound discretion of the court and will be upheld in the absence of an improvident exercise ofthat discretion” (Braddy v. 601 Crown Street Corp., 282 AD2d 638, 639; see Epps v. LaSalle Bus, 271 AD2d 400). On this record, it cannot be said that the Supreme Court improvidently exercised that discretion. The plaintiff’s allegation that he was disabled was not supported by any medical evidence. The plaintiff’s remaining contentions are without merit. GOLDSTEIN, J.P., ADAMS, TOWNES and CRANE, JJ., concur. By Ritter, J.P.; Altman, Miller and Adams, JJ. PALO, JR. aps, v. PRINCIPIO res – (INDEX NO. 4385/99)In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated December 12, 2001, which, inter alia, granted the defendant’s cross motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with costs. The plaintiff Michael Palo, a martial arts student at the defendants’ school, allegedly sustained head injuries in a fall that occurred when he was attempting to execute a kick against a fellow student. The plaintiffs alleged, inter alia, that the defendants used unsecured rugs at their school, and that the accident was caused by the rugs slipping out from underneath Palo, as he attempted his kick. As a result, Palo allegedly struck his head on a hard wood floor. The defendants demonstrated a prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851). The burden then shifted to the plaintiffs to come forward with evidence in admissible form to establish the existence of a triable issue of fact requiring a trial (see Zuckerman v. City of New York, 49 NY2d 557). The plaintiffs failed to do so. The record does not support the plaintiffs’ theory that Palo fell because he slipped on an unsecured rug, and the only indication that the accident happened because of an unsecured rug comes from theaffirmation of the plaintiffs’ attorney. While the plaintiffs’ attorney referred to the purported deposition testimony of Palo’s father, who allegedly witnessed the accident, the attorney did not annex the relevant portion of the transcript to his affirmation, nor did he submit an affidavit from Palo’s father. The affirmation of the plaintiffs’ attorney, standing alone, was insufficient to raise a question of fact since he had no personal knowledge of the manner in which the accident occurred (see Falkowitz v. Peters, 294 AD2d 330). We further note that the affidavit of the plaintiffs’ purported expert was conclusory and insufficient to raise a triable issue of fact (see Osorio v. Deer Run Assoc. 1985, 231 AD2d 504). The plaintiffs’ remaining contentions are without merit. RITTER, J.P., ALTMAN, H. MILLER and ADAMS, JJ., concur. By Feuerstein, J.P.; Friedmann, Schmidt and Mastro, JJ. PECHMAN, res-ap, v. PECHMAN, ap-res – (INDEX NO. 4935/01)In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Sherwood, J.), dated July 11, 2002, as granted that branch of the plaintiff’s motion which was to appoint an independent accountant to audit the financial records of nonparty Lexington Glass Company, Inc., and to evaluate his income and the value of Lexington Glass Company, Inc., and the plaintiff cross-appeals, as limited by her notice of appeal and brief, from so much of the same order as denied that branch of her motion which was for leave to amend the complaint to add new causes of action and three parties to the action. ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements. Contrary to the husband’s contention, the Supreme Court properly exercised its discretion in appointing an independent accountant to audit the financial records of nonparty Lexington Glass Company, Inc. (hereinafter Lexington), the closely-held corporation owned and managed by his family. The husband is the president of Lexington. The record indicates that the husband has been less than forthright regarding his income and finances, despite his statutorily-mandated duty to disclose such information (see Domestic Relations Law � 236[B][4]). Furthermore, the corporate tax returns for the three years preceding the commencement of the action indicated that the husband was an equal owner in the companyuntil one month after the commencement of the action when, for reasons unclear in the record, the corporate accountant was instructed to amend the tax returns to reflect that the husband’s father was the sole owner of the corporation. The record also indicates that the personal finances of the husband and other corporate officers were so completely commingled with the finances of the corporation that the value of their income and benefits and their purported shares in the corporation could not be delineated without a complete audit of the corporate records. Information pertaining to the husband’s finances is crucial to the ability of the Supreme Court to equitably distribute the assets of the marriage and to determine any awards for maintenance and child support (see Domestic Relations Law � 236[B]; Gellman v. Gellman, 160 AD2d 265, 267; De La Roche v. De La Roche, 209 AD2d 157, 158; Kaye v. Kaye, 102 AD2d 682, 686). Since such information can only be found in the intricate corporate records, it was well within the discretion of the Supreme Court to order the audit (see Burns v. Burns, 84 NY2d 369, 375; Litman v. Litman, 61 NY2d 918, 920; French v. French, 288 AD2d 256). Moreover, the Supreme Court properly exercised its discretion in denying that branch of the wife’s motion which was for leave to amend the complaint to add the corporation and its shareholders as parties in this matrimonial action. It is not necessary to add them as parties to determine equitable distribution or the husband’s obligations for maintenance or child support (see Domestic Relations Law � 236[B][5], [6], [7]; see also CPLR 3025; Edenwald Contr. Co. v. City of New York, 60 NY2d 957, 959). The parties’ remaining contentions either are unpreserved for appellate review or without merit. FEUERSTEIN, J.P., FRIEDMANN, SCHMIDT and MASTRO, JJ., concur. By Ritter, J.P.; Florio, Miller and Miller, JJ. PEOPLE, ETC., res, v. KENITH AGARO, a/k/a KENITH A’GARD, ap – (IND. NO. 00-00430)Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Perone, J.), rendered March 15, 2001, convicting him of aggravated harassment of an employee by an inmate, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. At the time of the incident, the defendant was an inmate in the Sing Sing correctional facility. In apparent retribution for a prior altercation with corrections officers, he threw a cup of urine and feces, striking two other corrections officers. For this act, the defendant was convicted of aggravated harassment of an employee by an inmate, pursuant to Penal Law 240.32. Contrary to the defendant’s contention, his proposed testimony as to prior altercations or his prior psychiatric condition, to support a justification defense, was properly precluded as irrelevant (see People v. Bedi, 299 AD2d 556; People v. Middleton, 288 AD2d 327). Even assuming that the defendant had been mistreated previously, he would not have been justified in his conduct, and thus his testimony about prior events would have been of no probative value. Thus, he was not impermissibly denied his right to testify in his own defense. Furthermore, there is no support in the record for the defendant’s contention that the court, sua sponte, should have ordered a competency exam pursuant to CPL 730.30 (see People v. Tortorici, 92 NY2d 757, cert denied 528 US 834). The defendant’s remaining contentions are meritless. RITTER, J.P., FLORIO, S. MILLER and H. MILLER, JJ., concur. By Feuerstein, J.P.; Smith, Goldstein and Cozier, JJ. PEOPLE, ETC., res, v. NIGEL ALEXANDER, ap – (IND. NO. 5839/00)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barbaro, J.), rendered May 14, 2001, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. We reject the defendant’s contention that the Supreme Court erred in refusing to instruct the jury on the use of deadly physical force to prevent the commission of a robbery (see Penal Law � 35.15[2][b]). Viewing the testimony in the light most favorable to the defendant (see People v. Watts, 57 NY2d 299, 301), there is no reasonable view of the evidence from which the jury could have concluded that the victim or his friends were committing or were attempting to commit a robbery (see People v. Bertone, 213 AD2d 417; People v. Ducksworth, 209 AD2d 536; People v. Ruiz, 138 AD2d 420; People v. Flores, 75 AD2d 649). Accordingly, the Supreme Court properly declined to submit the requested charge to the jury. FEUERSTEIN, J.P., SMITH, GOLDSTEIN and COZIER, JJ., concur. By Ritter, J.P.; Miller, McGinity and Townes, JJ. PEOPLE, ETC., res, v. BRIAN CANO, ap – (IND. NO. 1190/99)Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Suffolk County (Gazzillo, J.), imposed January 27, 2000, on the ground that the sentence is excessive. ORDERED that the sentence is affirmed. No opinion. RITTER, J.P., S. MILLER, McGINITY and TOWNES, JJ., concur. By Ritter, J.P.; Miller, Friedmann and Cozier, JJ. PEOPLE, ETC., ap, v. JAN CHERTOK AND EDUARD GLADYSHEV, res – (IND. NO. 3863/01)Appeal by the People (1) from an order of the Supreme Court, Kings County (Dowling, J.), dated October 22, 2001, which granted those branches of the defendants’ respective omnibus motions which were to suppress physical evidence, and (2), as limited by their brief, from so much of an order of the same court, dated December 18, 2001, as, upon granting the People’s motion for leave to reargue, adhered to the original determination. Justice Ritter has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the appeal from the order dated October 22, 2001, is dismissed, as that order was superseded by the order dated December 18, 2001, made upon reargument; and it is further, ORDERED that the order dated December 18, 2001, is reversed insofar as appealed from, on the law, the order dated October 22, 2001, is vacated, those branches of the defendants’ respective omnibus motions which were to suppress physical evidence are denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings. At approximately 3:15 P.M. on May 9, 2001, Sergeant James Hansen of the 61st precinct anti-crime unit, was informed of a possible shoot-out which was to take place at 3:30 P.M. at the parking lot of Windjammer Motel in the Sheepshead Bay section of Brooklyn, between occupants of a black Mercedes and a black Lincoln Town Car. This information was received in a 911 emergency call, in which a female caller reported that her sister, brother-in-law, and employer, all of whom she named, were going to be involved in an altercation at the motel. She noted that the brother-in-law and the employer both had prior criminal records. The caller stressed that it was urgent that the police respond immediately to that location. At approximately 3:20 P.M., the police arrived at the motel and, after driving through the parking lot, observed only a black Mercedes. The four responding plain-clothes officers exited their unmarked cars, identified themselves, approached the vehicle without guns drawn, and requested that the occupants, the defendants, exit the Mercedes. The defendants complied and were frisked by the officers. No contraband was recovered as a result of the frisk. However, after the unrestrained defendants were removed to the rear of the Mercedes, one of the officers looked in the window and observed the butt of a gun protruding from under the front seat. He recovered the weapon. The Supreme Court granted those branches of the defendants’ respective omnibus motions which were to suppress the gun, finding the police conduct to be illegal. We reverse. The defendants’ vehicle was stationary in the motel parking lot (see People v. Harrison, 57 NY2d 470). The information provided in the 911 call gave the police the right to exercise their common-law right of inquiry (see People v. Crea, 126 AD2d 556, 559-560). Moreover, given the nature of the information, a warning of a possible armed confrontation provided by a frantic caller who, while unidentified, was nevertheless obviously concerned about the well-being of endangered relatives and her employer, the removal of the defendants from the Mercedes was reasonable under the circumstances (see People v. Robinson, 74 NY2d 773, cert denied 493 US 966; People v. Finlayson, 76 AD2d 670, 679-680, lv denied 51 NY2d 1011, cert denied 450 US 931). The gun, observed in plain view in the vacant car, is thus admissible (see Matter of Michael R., 267 AD2d 389; People v. McKane, 267 AD2d 253). RITTER, J.P., S. MILLER, FRIEDMANN and COZIER, JJ., concur. By Ritter, J.P.; Florio, Miller and Miller, JJ. PEOPLE, ETC., res, v. HAROLD CUMMINGS, ap – (IND. NO. 00-01728)Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Molea, J.), rendered December 20, 2001, convicting him of manslaughter in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant’s contention that the trial court erred in denying his request to charge the jury that the decedent’s work boots could be considered a dangerous instrument is without merit, as no reasonable view of the evidence supported such a finding (see generally People v. Snyder, 73 NY2d 900; People v. Williams, 240 AD2d 441; cf. People v. Carter, 53 NY2d 113; People v. Ray, 273 AD2d 611, 613; People v. Hansen, 267 AD2d 474). The trial court’s instructions regarding the duty to retreat were entirely proper since there was evidence in the record which could rationally support a finding that the defendant could have safely retreated (see People v. Jackson, 293 AD2d 488; People v. Bayron, 151 AD2d 962; People v. Barcena, 131 AD2d 688, 689). The defendant’s remaining contentions are without merit. RITTER, J.P., FLORIO, S. MILLER and H. MILLER, JJ., concur. By Gail Prudenti, P.J.; Feuerstein, McGinity and Miller, JJ. PEOPLE, ETC., res, v. JAMES FRANCISCHELLI, ap – (IND. NO. 679/00)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosengarten, J.), rendered May 15, 2001, convicting him of robbery in the second degree (two counts), criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Spires, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony. Presiding Justice Prudenti has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the judgment is affirmed. Contrary to the defendant’s contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress identification testimony. The showup identification was conducted in close temporal and geographic proximity to the crime (see People v. Ortiz, 90 NY2d 533, 537; People v. Duuvon, 77 NY2d 541, 543), and the defendant was not handcuffed or restrained by the plainclothes officers who were with him (see People v. Brown, 181 AD2d 615). Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5]). The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). The defendant’s remaining contention is without merit. PRUDENTI, P.J., FEUERSTEIN, McGINITY and H. MILLER, JJ., concur. By Altman, J.P.; Krausman, McGinity and Cozier, JJ. PEOPLE, ETC., res, v. STEVEN GREENE, ap – (IND. NO. 2425/99)Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), dated April 20, 2000, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant’s contention that the People failed to disprove the agency defense beyond a reasonable doubt is without merit. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to disprove the defendant’s claim that he was acting as an agent of the undercover officer in the narcotics transaction (see People v. Herring, 83 NY2d 780; People v. Lam Lek Chong, 45 NY2d 64, cert denied 439 US 935; People v. Tomlinson, 280 AD2d 563; People v. Shands, 269 AD2d 613; People v. Trotty, 262 AD2d 337; People v. Leybovich, 201 AD2d 670). Furthermore, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15). The defendant’s remaining contentions are without merit. ALTMAN, J.P., KRAUSMAN, McGINITY and COZIER, JJ., concur. By Krausman, J.P.; Adams, Townes and Crane, JJ. PEOPLE, ETC., res, v. ANTHONY HEYWARD, ap – (IND. NO. 4504/99)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ruchelsman, J.), rendered September 25, 2000, convicting him of criminal sale of a controlled substance in or near school grounds, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Silverman, J.), of that branch of the defendant’s omnibus motion which was to suppress physical evidence. ORDERED that the judgment is affirmed. The defendant was convicted based upon evidence that he sold cocaine to an undercover police officer for $20 during a so-called “buy-and-bust” operation. Within minutes of the sale, the defendant was seen by a second undercover officer, known as the “ghost” officer, entering a livery cab with an unidentified woman and leaving the scene of the crime. The ghost officer transmitted a description of the livery cab and its location to the field team. Within seconds, the field team responded to the scene and observed the livery cab just pulling away. The livery cab was stopped shortly thereafter and the defendant was detained and searched. The arresting officer discovered a prerecorded $20 bill on the defendant’s person. The defendant was placed under arrest after being identified by the two undercover police officers. He was subsequently charged, inter alia, with the crime of the criminal sale of a controlled substance in or near school grounds. The Supreme Court properly denied that branch of the defendant’s omnibus motion which was to suppress the physical evidence recovered upon his arrest. The police had reasonable suspicion to pursue, stop, and detain the livery cab in which the defendant was a passenger based upon the contents of the transmission, the short passage of time between the ghost officer’s transmission and the observation of the livery cab by the field team, the absence of any other vehicles in the vicinity, and the close proximity of the livery cab to the scene of the crime (see People v. Sharpe, 259 AD2d 639; People v. Glaze, 255 AD2d 932, 933; People v. Finlayson, 76 AD2d 670, 677, appeal denied 51 NY2d 1011, cert denied 450 US 931). The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). KRAUSMAN, J.P., ADAMS, TOWNES and CRANE, JJ., concur. By Ritter, J.P.; Miller, Miller and Cozier, JJ. PEOPLE, ETC., res, v. ISAAC JONES, ap – (INDEX NO. 00-00077)Appeal by the defendant from a judgment of the Supreme Court, Westchester County (West, J.), rendered September 14, 2001, convicting him of rape in the first degree, robbery in the first degree, and sexual abuse in the first degree. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials. ORDERED that the judgment is affirmed. Contrary to the defendant’s contention, the Supreme Court properly denied that branch of his motion which was to suppress certain statements made to the police as involuntary (see People v. Anderson, 42 NY2d 35; People v. Gonzalez, 39 NY2d 122; People v. Sohn, 148 AD2d 553, lv denied 74 NY2d 747). The defendant’s remaining contentions lack merit. RITTER, J.P., S. MILLER, H. MILLER and COZIER, JJ., concur. By Feuerstein, J.P.; Smith, Goldstein and Cozier, JJ. PEOPLE, ETC., res, v. IESHA LORA, ap – (IND. NO. 1306/98)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered September 5, 2001, convicting her of murder in the second degree (two counts), robbery in the first degree (two counts), and burglary in the first degree (two counts), upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant’s contention that the trial court erred in its charge regarding the voluntariness of her statements to law enforcement officials is unpreserved for appellate review (see CPL 470.05[2]; People v. Chavis, 237 AD2d 527; People v. Judge, 197 AD2d 536, 537; People v. Roth, 139 AD2d 605, 608). In any event, any error was harmless in light of the overwhelming evidence establishing that the defendant’s incriminating statements were not the product of psychological coercion (see People v. Ross, 197 AD2d 713; People v. McFarlane, 187 AD2d 734). The sentence imposed was not excessive (see People v. Farrar, 52 NY2d 302; People v. Suitte, 90 AD2d 80). The defendant’s remaining contentions are without merit. FEUERSTEIN, J.P., SMITH, GOLDSTEIN and COZIER, JJ., concur. By Santucci, J.P.; Friedmann, Luciano and Rivera, JJ. PEOPLE, ETC., res, v. DERRICK PADGETT, ap – (IND. NO. 2503/00)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosengarten, J.), rendered May 23, 2001, convicting him of criminal possession of stolen property in the third degree and violating Vehicle and Traffic Law � 1110, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant claims that the Supreme Court erred in disallowing his peremptory challenge to a prospective juror since the People did not establish a prima facie case of racial discrimination. The defendant’s claim is academic. When, as here, a defendant gives race-neutral reasons for his peremptory challenges, and a court rules on the ultimate issue of intentional discrimination, the issue of whether a prima facie case has been established is academic (see People v. Payne, 88 NY2d 172). Here, defense counsel stated that his reason for moving to strike the prospective juror was that “there was just a feeling that we didn’t get enough information on him to make a considered judgment.” This explanation amounted, essentially, to no reason at all (see People v. Stewart, 238 AD2d 361). Although the Supreme Court did not use the word “pretext,” based upon the court’s language that “there can be no non-gender or race-related reason for challenging [the prospective juror],” the finding of pretext is reasonably inferred (see People v. Stewart, supra). Furthermore, the issue is unpreserved for appellate review since the defendant’s general objection did not adequately preserve it (see People v. Payne, supra). The defendant’s remaining contentions are unpreserved for appellate review or without merit. SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur. By Smith, J.P.; Goldstein, McGinity and Mastro, JJ. PEOPLE, ETC., res, v. MALCOLM E. SCOON, ap – (IND. NO. 741/96)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered May 1, 1998, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant’s contention that the evidence was legally insufficient is largely unpreserved for appellate review (see CPL 470.05[2]; People v. Udzinski, 146 AD2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see People v. Rossey, 89 NY2d 970; People v. Powell, 163 AD2d 426). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5]). Since the judgment of conviction was based upon legally sufficient evidence, the defendant’s challenges to the instructions given to the Grand Jury are no longer reviewable on appeal (see People v. Miles, 236 AD2d 786; People v. O’Connor, 126 AD2d 676). The defendant largely failed to preserve for appellate review his contentions with respect to numerous allegedly improper comments made by the prosecutor during summation. The defendant did not object to the majority of the comments, and those comments to which he did raise objection were followed by curative instructions, subsequent to which the defendant did not ask for further curative instructions, or move for a mistrial (see CPL 470.05[2]; People v. Rosario, 195 AD2d 577). In any event, a prosecutor’s summation must be examinedin the context of the arguments advanced by the defendant, and an argument is fair if it is responsive to arguments and issues raised by the defense (see People v. Cox, 161 AD2d 724). Under the circumstances presented, the challenged comments were reasonable. Contrary to the defendant’s contention, the court properly denied his request for a Frye hearing (see Frye v. United States, 293 F 1013) with respect to the admissibility of expert testimony concerning the amount of time between the alleged shaking of the deceased child and the onset of her symptoms (see generally People v. Serrano, 219 AD2d 508; People v. Garcia, 190 AD2d 749. The expert’s testimony was not only supported by medical literature, but also by previous judicial opinions (see Matter of Lahey v. Kelly, 71 NY2d 135, 144; People v. Wong, 81 NY2d 600, 606; People v. Hawkins-Rusch, 212 AD2d 961). The court properly denied the defendant’s motion to set aside the verdict on the ground that the deliberative process was tainted by juror misconduct. Such motions are addressed to the sound discretion of the trial court. The assessment of credibility by the trial court will not be disturbed unless clearly erroneous (see People v. Panzarino, 131 AD2d 788). The defendant did not meet his burden of proving by a preponderance of the evidence that a juror acted improperly, that he was prejudiced by the improper conduct, and that he was not aware of the conduct before the verdict was returned (see CPL 330.40[2][g]; People v. Clark, 81 NY2d 913; People v. Young, 197 AD2d 874]). The defendant received the effective assistance of counsel (see People v. Baldi, 54 NY2d 137). The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80). The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are unpreserved for appellate review, without merit, or do not warrant reversal. SMITH, J.P., GOLDSTEIN, McGINITY and MASTRO, JJ., concur. By Florio, J.P.; Crane, Cozier and Rivera, JJ. PEOPLE, ETC., EX REL. JOSHUA BARNES, ap, v. BRIAN FISCHER, res – (IND. NO. 9030/01)In a habeas corpus proceeding, the petitioner appeals from an order of the Supreme Court, Westchester County (Lange, J.), entered October 31, 2001, which denied the petition and dismissed the proceeding. ORDERED that the order is affirmed, without costs or disbursements. A “writ of habeas corpus may not be used to review questions already decided or, absent reasons of practicality and necessity, questions that could have been raised by direct appeal or by a collateral attack in the court of the petitioner’s conviction” (People ex rel. Pearson v. Garvin, 211 AD2d 690, 691; see People ex rel. Benbow v. Scully, 189 AD2d 844, 845). “Since the petitioner presents no fundamental constitutional or statutory claim that was not already reviewed on direct appeal or on his CPL 440.10 motion and would warrant departure from traditional, orderly process” (People ex rel. Pearson v. Garvin, supra at 691; cf. People ex rel. Keitt v. McMann, 18 NY2d 257, 262), the Supreme Court properly determined that the petitioner’s application is procedurally barred. FLORIO, J.P., CRANE, COZIER, and RIVERA, JJ., concur. By Goldstein, J.P.; Adams, Townes and Crane, JJ. POULOS, res, v. U-HAUL INTERNATIONAL, INC. ap – (INDEX NO. 10025/01)In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Schmidt, J.), dated August 5, 2002, which denied their motion for leave to amend their answer to assert the defense of the statute of limitations, and for summary judgment dismissing the complaint based upon that defense. ORDERED that the order is reversed, on the law, with costs, the motion is granted, the answer is deemed amended to assert the defense of the statute of limitations, and the complaint is dismissed as time-barred. The instant action was commenced in 2001, five years after the cause of action accrued in 1996. Accordingly, the action is time-barred by the three-year statute of limitations set forth in CPLR 214. The plaintiff is not entitled to the benefits of CPLR 205(a), since his prior action for the same relief was dismissed for lack of prosecution (see Poulos v. U-Haul Intl., 288 AD2d 202; see also Carven Assocs. v. American Home Assur. Corp., 84 NY2d 927, 930; Berman v. Szpilzinger, 200 AD2d 367; Ivory v. Ekstrom, 98 AD2d 763, 764). GOLDSTEIN, J.P., ADAMS, TOWNES and CRANE, JJ., concur. By Gail Prudenti, P.J.; Santucci, Goldstein and Cozier, JJ. PREMIER STORAGE SOLUTIONS, LLC, ap, v. ALMAR GROUP, INC., ET AL., res – (INDEX NO. 19907/00)In an action to recover a down payment pursuant to a real estate contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Golar, J.), dated January 2, 2002, which denied its motion for summary judgment on the complaint, granted the cross motion of the defendant Almar Group, Inc., for summary judgment on its counterclaim to retain the down payment, and directed the defendant Steckler, Gutman, Morrisey & Murray to release the down payment held in its escrow account to the defendant Almar Group, Inc. Presiding Justice Prudenti has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the order is affirmed, with costs. On April 18, 2000, the plaintiff buyer and the defendant seller, Almar Group, Inc. (hereinafter Almar), entered into a contract for the sale of certain real property. The plaintiff provided Almar with a $100,000 down payment which was held in escrow by the defendant law firm, Steckler, Gutman, Morrissey & Murray (hereinafter the Steckler firm). The relevant rider provisions of the contract provided, inter alia, that the contract was contingent upon there being no substantial structural defects in any building on the premises which would cost more than $50,000 to repair. In May 2000 the plantiff notified Almar that it wished to cancel the contract due to the presence of substantial structural defects on the property and requested a return of its $100,000 down payment. However, the plaintiff did not substantiate its claim that the alleged defects would cost more than $50,000 to repair. Almar rejected the purported cancellation andset a time-of-the-essence closing date of August 14, 2000. The plaintiff failed to appear for the closing and thereafter commenced this action to recover its down payment. The plaintiff moved for summary judgment in its favor and Almar cross-moved for summary judgment on its counterclaim to retain the down payment, asserting that the plaintiff had breached the contract. The Supreme Court denied the plaintiff’s motion, granted Almar’s cross motion, and directed the Steckler firm to release the down payment held in its escrow account to Almar. Although the contract between the parties was contingent upon there being no substantial structural defects which would cost more than $50,000 to repair, the plaintiff never submitted any written estimates or any other documentation to substantiate its claim. As such, the plaintiff forefeited its right to recover the down payment since Almar was ready, willing, and able to perform on the August 14, 2000, closing date, and the plaintiff defaulted by failing to appear (see Lipshy v. Sabbeth, 134 AD2d 409; Cooper v. Bosse, 85 AD2d 616). The plaintiff’s remaining contentions are without merit. PRUDENTI, P.J., SANTUCCI, GOLDSTEIN and COZIER, JJ., concur. By Ritter, J.P.; McGinity, Townes and Mastro, JJ. PRZYBYSZEWSKI, res, v. WONDER WORKS CONSTRUCTION, INC. aps, ET AL., def – (INDEX NO. 10743/99)In an action to recover damages for personal injuries, the defendant Wonder Works Construction, Inc., and the defendant CIP Restoration, Inc., separately appeal from so much of an order of the Supreme Court, Richmond County (Gigante, J.), dated February 28, 2002, as denied those branches of their respective motions which were for summary judgment dismissing the complaint insofar as asserted against them. ORDERED that the order is reversed insofar as appealed from, with one bill of costs, those branches of the appellants’ respective motions which were for summary judgment dismissing the complaint insofar as asserted against the appellants are granted, and the complaint is dismissed in its entirety. The plaintiff fell after stepping onto a rug located in the parking lot of a police precinct where he worked. The evidence indicated that the rug had been placed under a kettle to prevent the tar in that kettle from dripping onto the pavement during a construction project. At his deposition, the plaintiff described his fall as a “freak accident.” Moreover, he explicitly denied falling due to any tar, and stated that he neither hit anything on the rug nor slipped on the rug itself. He also admitted that he did not know whether the rug was in any way folded, lumped, or curled up. The Supreme Court, inter alia, denied those branches of the separate motions of the defendant Wonder Works Construction, Inc., and the defendant CIP Restoration, Inc. (hereinafter collectively the appellants), which were for summary judgment dismissing the complaint insofar as asserted against them. We reverse insofar as appealed from. It is true that whether a certain condition qualifies as dangerous or defective is usually a question of fact for the jury to decide (see e.g. Varrone v. Dinaro, 209 AD2d 508). However, summary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous (see Tresgallo v. Danica, 286 AD2d 326; Varrone v. Dinaro, supra). The appellants met their initial burden of establishing their entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851) by submitting the plaintiff’s deposition testimony, in which the plaintiff candidly described his fall as a “freak accident” and failed to pinpoint how the rug he fell on was either dangerous or defective. In response, the plaintiff failed to establish the existence of a material issue of fact requiring a trial of the action (see Zuckerman v. City of New York, 49 NY2d 557). Therefore, in addition to granting the remaining defendants’ motions for summary judgment dismissing the complaint, the Supreme Court also should have granted those branches of the appellants’ respective motions which were for summary judgment dismissing the complaint. In light of the foregoing, we need not reach the appellants’ remaining contentions. RITTER, J.P., McGINITY, TOWNES and MASTRO, JJ., concur. By Gail Prudenti, P.J.; Santucci, Goldstein and Cozier, JJ. QUANTUM CORPORATE FUNDING, LTD., ap, v. WESTWAY INDUSTRIES, INC., def, UNITED STATES FIDELITY AND GUARANTY COMPANY, res – (INDEX NO. 18842/00)In an action, inter alia, to recover on a payment bond, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Bellantoni, J.) entered December 21, 2001, as granted that branch of the cross motion of the defendant United States Fidelity and Guaranty Company which was for summary judgment dismissing the complaint insofar as asserted against it. Presiding Justice Prudenti has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the order is reversed insofar as appealed from, with costs, that branch of the cross motion which was for summary judgment dismissing the complaint insofar as asserted against the respondent is denied, and the complaint is reinstated insofar as asserted against the respondent. The plaintiff brought this action to collect on accounts receivable assigned to it by a subcontractor. These accounts were due from a general contractor for work and material supplied in connection with several government projects. When the general contractor failed to make any payments, the plaintiff sought payment under the labor and material payment bonds. The defendant surety refused to pay, asserting that a subcontractor’s assignee does not have standing to seek relief under labor and material payment bonds. According to the surety, State Finance Law � 137 allows recovery on a payment bond only by subcontractors, materialmen, and laborers. We disagree. State Finance Law � 137 reads, in pertinent part: “Every person who has furnished labor or material, to the contractor or to a subcontractor shall have the right to sue on such payment bond” (State Finance Law � 137[3]). The statute was modeled primarily after the provisions of the Miller Act (see 40 USC � 270a et seq.) governing payment bonds for Federal public works (see Scaccia Concrete Corp. v. Hartford Fire Ins. Co., 212 AD2d 225, 232). The Supreme Court of the United States, in construing the similarly worded Miller Act, has held that assignees of the claims of persons furnishing labor or material come within the protection of the statutory bond (see United States for benefit of Sherman v. Carter, 353 US 210). As such, contrary to the holding of the Appellate Division, First Department, in Quantum Corp. v. Fidelity (258 AD2d 376), we conclude that an assignee has standing to sue a surety on a payment bond issued pursuant to State Finance Law � 137. PRUDENTI, P.J., SANTUCCI, GOLDSTEIN and COZIER, JJ., concur. By Feuerstein, J.P.; Smith, Schmidt and Cozier, JJ. SAEED, ETC. plfs- res, v. NY/ENTERPRISE CITY HOME HOUSING DEVELOPMENT FUND CORPORATION defs third-party plfs-res def third-party plf; S&Z WATERPROOFING, INC., third-party def-ap (and another action). (INDEX NOS. 13887/97, 79767/98, 75075/01)In an action to recover damages for personal injuries, etc., the third-party defendant, S&Z Waterproofing, Inc., appeals, as limited by its brief and by a stipulation dated September 9, 2002, from so much of an order of the Supreme Court, Kings County (Hubsher, J.), dated January 22, 2002, as (1) granted that branch of the plaintiffs’ motion which was for summary judgment on their Labor Law � 240(1) cause of action insofar as asserted against the defendant third-party plaintiff NY/Enterprise City Home Housing Development Fund Corporation, (2) granted that branch of the cross motion of the defendants third-party plaintiffs NY/Enterprise City Home Housing Development Fund Corporation and Community Preservation Corporation which was for summary judgment on the third-party cause of action for common-law indemnification insofar as asserted by the defendant third-party plaintiff NY/Enterprise City Home Development Fund Corporation against the appellant, and (3) conditionally granted that branch of the same cross motion which was for summary judgment on the third-party cause of action for common-law indemnification insofar as asserted by the defendant third-party plaintiff Community Preservation Corporation against the appellant. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiffs’ decedent died as a result of falling from a scaffold while performing construction work on a brownstone in New York City. The defendant third-party plaintiff building owner NY/Enterprise City Home Development Fund Corporation (hereinafter Enterprise) hired the defendant third-party plaintiff LPG Associates, Inc., as general contractor, which in turn hired the third-party defendant S&Z Waterproofing, Inc. (hereinafter S&Z), the decedent’s employer, as a subcontractor. The Supreme Court correctly granted the plaintiffs’ motion for summary judgment against Enterprise, since the collapse of the scaffold constituted a prima facie case of liability under Labor Law � 240(1) (see Montour v. City of New York, 270 AD2d 236; Jablonski v. Everest Constr. & Trade Corp., 264 AD2d 381), and there was no evidence submitted to rebut this prima facie showing. In addition, the Supreme Court properly granted that branch of the cross motion which was for summary judgment on the third-party cause of action for common-law indemnification insofar as asserted by Enterprise against S&Z. Enterprise established its prima facie entitlement to summary judgment on its indemnification claim against S&Z by demonstrating that S&Z supervised and had authority and control over the work which gave rise to the decedent’s accident (see Hernandez v. Two E. End Ave. Apt. Corp., 271 AD2d 570), and S&Z failed to demonstrate the existence of a triable issue of fact. Further, while S&Z supervised and controlled the work giving rise to the accident, there was an issue of fact as to whether the defendant third-party plaintiff Community Preservation Corporation (hereinafter Community Preservation) was an owner or contractor in accordance with Labor Law � 240(1). Accordingly, the Supreme Court properly conditionally granted that branch of the cross motion which was for summary judgment on the third-party cause of action for common-law indemnification insofar as asserted by Community Preservation against S&Z in the event that Community Preservation is found liable, as an owner or contractor, for the accident. S&Z’s remaining contentions are without merit. FEUERSTEIN, J.P., SMITH, SCHMIDT and COZIER, JJ., concur. By Ritter, J.P.; McGinity, Townes and Mastro, JJ. SCHINDLER, ap, v. FILENE’S BASEMENT, INC., res, ET AL., def – (INDEX NO. 3883/99)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Carter, J.), entered January 18, 2002, which granted the motion of the defendant Filene’s Basement, Inc., for summary judgment dismissing the complaint insofar as asserted against it. ORDERED that the order is affirmed, with costs. The respondent, Filene’s Basement, Inc., made out a prima facie case establishing its entitlement to summary judgment. In opposition to the motion, the plaintiff failed to present evidence sufficient to raise a triable issue of fact (see Simmons v. Sam’s E., 293 AD2d 596; Dominitz v. Food Emporium, 271 AD2d 640). Accordingly, the Supreme Court properly granted the respondent’s motion for summary judgment dismissing the complaint insofar as asserted against it. RITTER, J.P., McGINITY, TOWNES and MASTRO, JJ., concur. By Gail Prudenti, P.J.; Feuerstein, McGinity and Miller, JJ. SILVA, res, v. UTICA FIRST INSURANCE COMPANY, ap – (INDEX NO. 18626/01)In an action for a judgment declaring that the defendant Utica First Insurance Company is obligated to defend and indemnify David Wong Restaurant, Inc., d/b/a K-O Gourmet Chinese Restaurant, and David Wong, individually, in an action entitled Silva v. Dome Realty N.Y. Corp., pending in the Supreme Court, Queens County, under Index No. 160435/00, the defendant Utica First Insurance Company appeals from an order of the Supreme Court, Queens County (Dye, J.), dated December 21, 2001, which denied its motion, inter alia, for summary judgment dismissing the complaint. Presiding Justice Prudenti has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1[c]). ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant, Utica First Insurance Company, is not obligated to defend and indemnify David Wong Restaurant, Inc., d/b/a K-O Gourmet Chinese Restaurant, and David Wong, individually, in the underlying action entitled Silva v. Dome Realty N.Y. Corp., pending in the Supreme Court, Queens County, under Index No. 160435/00. An assault and battery exclusion provision in a policy of insurance, which is clear and unambiguous, can serve to exclude coverage when a claim arises from an assault (see U.S. Underwriters Ins. Co. v. Val-Blue Corp., 85 NY2d 821; Malek v. Allcity Ins. Co., 264 AD2d 468, 469; Dudley’s Rest. v. United Nat. Ins. Co., 247 AD2d 425, 426). If no cause of action would exist but for the assaultive behavior, and the clear and unambiguous provisions of the insurance policy exclude coverage for intentional assaultive behavior, theinsurer is under no obligation to defend the action (see Mount Vernon Fire Ins. Co. v. Creative Hous., 88 NY2d 347; Malek v. Allcity Ins. Co., supra; Sphere Drake Ins. Co. v. 72 Centre Ave. Corp., 238 AD2d 574, 575-576). Here, the plaintiff’s claims in the underlying action are rooted in intentional tortious behavior which the defendant specifically excluded from coverage by the clear and unambiguous provisions of the subject policy (see Mount Vernon Fire Ins. Co. v. Creative Hous., supra; U.S. Underwriters Ins. Co. v. Val-Blue Corp., supra). Accordingly, the defendant is not obligated to defend and indemnify the defendants in the underlying action, and is entitled to summary judgment and a declaration that it is not so obligated. Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant, Utica First Insurance Company, is not obligated to defend or indemnify David Wong Restaurant, Inc., d/b/a K-O Gourmet Chinese Restaurant, and David Wong, individually, in the underlying action entitled Silva v. Dome Realty N.Y. Corp., pending in the Supreme Court, Queens County, under Index No. 160435/00 (see Lanza v. Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901). PRUDENTI, P.J., FEUERSTEIN, McGINITY and H. MILLER, JJ., concur. By Feuerstein, J.P.; Smith, Schmidt and Cozier, JJ. TEER, ETC., res, v. QUEENS-LONG ISLAND MEDICAL GROUP, P.C., def, HITTI, ETC., ap – (INDEX NO. 11490/98)In an action, inter alia, to recover damages for medical malpractice, the defendant Ibrahim Hitti appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated August 1, 2001, as denied that branch of his motion which was for summary judgment dismissing the complaint insofar as asserted against him as barred by the statute of limitations. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the appellant as barred by the statute of limitations is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed. The plaintiff’s decedent, Kathleen Teer, was examined by a physician’s assistant at the defendant Queens-Long Island Medical Group, P.C. (hereinafter the Medical Group) on February 5, 1996, at which time a Pap smear was performed. The specimen was sent to nonparty Shared Services Laboratories (hereinafter Shared Services) which, at the time, was located in LaGuardia Hospital and provided services to that hospital, Syosset Hospital, and to the Medical Group. The defendant Dr. Ibrahim Hitti, a pathologist employed by LaGuardia Hospital, interpreted the decedent’s specimen. The laboratory report, which described the specimen as “unsatisfactory,” was forwarded to the Medical Group. When a Pap smear was performed on the decedent the next year, the laboratory report indicated cervical cancer. The decedent died of cervical cancer in 1998. The plaintiff, James Teer, the decedent’s husband, timely commenced this action in 1998 to recover damages for medical malpractice and wrongful death against the Medical Group. He alleged, inter alia, that the Medical Group negligently failed to inform the decedent of the 1996 laboratory report and to advise her to repeat the Pap smear, which caused her cancer to remain untreated for a year. In 2001 the plaintiff served an amended summons and complaint naming Dr. Hitti as a defendant. The Supreme Court denied Dr. Hitti’s motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against him as time-barred. The Supreme Court concluded that the Medical Group and Dr. Hitti were united in interest and, based on the relation-back doctrine, deemed the complaint timely served on Dr. Hitti. Dr. Hitti met his burden on the motion by establishing that the statute of limitations had expired prior to commencement of the action against him (see CPLR 214-a, CPLR 210[a]; EPTL 5-4.1). The burden therefore shifted to the plaintiff to present sufficient evidence to show that the relation-back doctrine applied (see Austin v. Interfaith Med. Ctr., 264 AD2d 702; CPLR 203[c]). The relation-back doctrine requires, inter alia, proof that the new party is united in interest with the original defendant (see Buran v. Coupal, 87 NY2d 173). Contrary to the Supreme Court, we conclude that the evidence fails to establish that the Medical Group and Dr. Hitti were united in interest. Interests will be united only where one party is vicariously liable for the acts of the other (see Mondello v. New York Blood Ctr.-Greater N.Y. Blood Program, 80 NY2d 219; Desiderio v. Rubin, 234 AD2d 581; Connell v. Hayden, 83 AD2d 30). Since Dr. Hitti was an employee of LaGuardia Hospital, there was no employment relationship with the Medical Group on which to base a finding of vicarious liability (see generally Hill v. St. Clare’s Hosp., 67 NY2d 72). There is no merit to the plaintiff’s contention that Shared Services and the Medical Group were a joint venture merely because there was evidence that LaGuardia Hospital and the Medical Group were both affiliated with the Health Insurance Plan of Greater New York (hereinafter HIP) and served HIP patients (see Cox v. Kingsboro Med. Group, 214 AD2d 150, affd 88 NY2d 904). Vicarious liability may be based on proof of an agency relationship (see Kavanaugh v. Nussbaum, 71 NY2d 535; Hill v. St. Clare’s Hosp., supra); however, here, there was no proof that the Medical Group exercised any control over the manner in which Shared Services and Dr. Hitti performed the laboratory work. Generally, a laboratory, as an independent contractor, does not act as an agent for a physician (see McDermott v. Torre, 56 NY2d 399, 408; Yanello v. Radiological Health Serv., 110 AD2d 834). Furthermore, the evidence does not support a finding of vicarious liability based on the principle of apparent or ostensible agency (see Hill v. St. Clare’s Hosp., supra). There was no contact between Dr. Hitti and the decedent, or evidence that the Medical Group exercised control over Dr. Hitti’s work, such that the decedent would reasonably believe that the Medical Group performed laboratory services (cf. Schiavone v. Victory Mem. Hosp., 292 AD2d 365; Abraham v. Dulit, 255 AD2d 345). As the plaintiff failed to establish that Dr. Hitti and the Medical Group were united in interest, the relation-back doctrine does not apply, and the complaint insofar as asserted against Dr. Hitti is time barred. In view of our determination, we need not reach the parties’ remaining contentions. FEUERSTEIN, J.P., SMITH, SCHMIDT and COZIER, JJ., concur. By Santucci, J.P.; Luciano, Schmidt and Adams, JJ. TERRY res, v. MARION, ap – (INDEX NO. 002064/00)In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Alpert, J.), dated June 25, 2002, which denied his motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with costs. The injured plaintiff, in his capacity as a lieutenant in the Garden City Fire Department, responded to a call that a disabled vehicle was leaking gasoline onto the roadway. When he arrived at the scene, the hood of the vehicle was up, having been opened by the defendant, the owner of the vehicle, to ascertain the source of the leak. As the injured plaintiff looked into the engine compartment, the hood of the car fell onto his head. The injured plaintiff and his wife commenced this action seeking damages for the injuries he sustained, asserting in the complaint, inter alia, that he intended to rely upon the doctrine of res ipsa loquitur. The defendant moved for summary judgment dismissing the complaint, arguing that he did not have actual or constructive notice of a defect in the hood of his car and that the doctrine of res ipsa loquitur was inapplicable to the facts of the case. The Supreme Court denied the motion, finding issues of fact as to whether the defendant had notice of a defective condition, and whether res ipsa loquitur was applicable. The Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint based upon an issue of fact concerning whether the defendant had notice of a defect in the hood of his car. We note, however, that the doctrine of res ipsa loquitur is inapplicable to the facts of this case (see Di Santo v. County of Westchester, 210 AD2d 628). SANTUCCI, J.P., LUCIANO, SCHMIDT and ADAMS, JJ., concur. By Ritter, J.P.; McGinity, Townes and Mastro, JJ. TILTON aps, v. GOULD, res def – (INDEX NO. 27858/99)In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Oliver, J.), entered January 4, 2002, which granted the motion of the defendant Trude Gould for summary judgment dismissing the complaint insofar as asserted against her and denied their cross motion for leave to amend the bill of particulars and to compel that defendant to comply with certain disclosure demands. ORDERED that the order is affirmed, with costs. The defendant Trude Gould retained a property management company to manage the construction of her home. The plaintiff Glenn Tilton, an employee of the property management company, sustained injuries when he allegedly was struck in the head with a hammer dropped by employees of a masonry subcontractor. The plaintiffs commenced this action to recover damages for common-law negligence and violations of Labor Law �� 200, 240(1), and 241(6). The Supreme Court, inter alia, granted Gould’s motion for summary judgment dismissing the complaint. We affirm. An owner of a one- or two-family dwelling is subject to liability under Labor Law � 240(1) or � 241(6) only if he or she directed or controlled the work being performed (see Duarte v. East Hills Constr. Corp., 274 AD2d 493; Rodas v. Weissberg, 261 AD2d 465). “The phrase ‘direct or control’ is construed strictly and refers to the situation where the ‘owner supervises the method and manner of the work’ (Rimoldi v. Schanzer, 147 AD2d 541, 545; see also Duda v. Rouse Constr. Corp., 32 NY2d 405)” (Mayen v. Kalter, 282 AD2d 508, 508-509). While the evidence indicates that Gould visited the site frequently, reviewed plans with the project manager, and made general decisions, there is no evidence that Gould supervised, directed, or controlled the work of the injured plaintiff or the masonry employees (see Killian v. Vesuvio, 253 AD2d 480; see also Slettene v. Ginsburg, 257 AD2d 656). Furthermore, there is no evidence that Gould provided tools, equipment, or safety devices to the workers at the site (see Slettene v. Ginsburg, supra; Killian v. Vesuvio, supra; Spinillo v. Strober Long Is. Bldg. Materials Ctrs., 192 AD2d 515). Likewise, there is no evidence to support the plaintiffs’ contention that Gould is liable for common-law negligence or under Labor Law � 200 (see Lombardi v. Stout, 80 NY2d 290; Mas v. Kohen, 283 AD2d 616). In light of our determination, the plaintiffs’ remaining contentions have been rendered academic. RITTER, J.P., McGINITY, TOWNES and MASTRO, JJ., concur. By Florio, J.P.; Miller, Friedmann, Townes and Mastro, JJ. TVERSKAYA plfs, v. AVIS CORPORATION defs; MENKES, nonparty-ap; LOSCALZO & LOSCALZO, P.C. nonparty-res – (INDEX NO. 18823/99)In an action to recover damages for personal injuries, etc., Sheryl R. Menkes, the plaintiffs’ first attorney, appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (M. Garson, J.), dated August 21, 2002, as, upon her motion for the allocation an attorney’s fee, awarded her only 50 percent of the total of the attorney’s fee. ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs. We find no merit to the appellant’s contention that the Supreme Court erred in apportioning the attorney’s fee in this case without holding a hearing. There is no indication that the appellant requested such a hearing. Furthermore, it appears that the appellant had ample opportunity on the written motion to submit any evidence in support of herclaim, thereby providing the Supreme Court with a proper basis to render a determination (see Melendez v. Barbulescu, 228 AD2d 420; Rondinelli v. Yabuki, 224 AD2d 404). FLORIO, J.P., S. MILLER, FRIEDMANN, TOWNES and MASTRO, JJ., concur. By Ritter, J.P.; Krausman, Friedmann and Luciano, JJ. VIVIANI, plf-res, v. CITY OF YONKERS, ap, COSTA def-res – (IND. NO. 8875/97)In action to recover damages for personal injuries, the defendant City of Yonkers appeals from a judgment of the Supreme Court, Westchester County (Bellantoni, J.), entered March 8, 2001, which, inter alia, upon the denial of its motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it and a jury verdict finding it at fault in the happening of the accident, is in favor of the plaintiff and against it in the principal sum of $200,000 ($25,000 for medical expenses and $175,000 for past pain and suffering). ORDERED that the judgment is reversed, on the law, the facts, and as a matter of discretion, without costs or disbursements, and (1) a new trial is granted on the issue of the apportionment of fault as between the plaintiff and the defendant City of Yonkers, and (2) a new trial is granted on the issue of damages for medical expenses only unless, within 30 days after service upon the plaintiff of a copy of this decision and order, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Westchester County, a written stipulation consenting to reduce the verdict as to such damages from the sum of $25,000 to the sum of $13,509, and to the entry of an appropriate amended judgment in her favor after the trial on the issue of the apportionment of fault between the plaintiff and the defendant City ofYonkers; in the event the plaintiff so stipulates, then the damages portion of the judgment, as so reduced and amended, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for the entry, after the trial on the issue of the apportionment of fault between the plaintiff and defendant City of Yonkers, of an appropriate amended judgment accordingly. The plaintiff commenced this action to recover damages arising from a trip and fall on a public sidewalk. The defendant City of Yonkers was the owner of the sidewalk, the defendant Vincent Costa was the owner of property abutting the sidewalk, and the defendant Thomas Mascioli is a former tenant of the property. After a trial, the jury rendered a verdict on liability and judgment was entered in favor of the plaintiff and against the City in the principal sums of $25,000 for medical expenses and $175,000 for past pain and suffering. Contrary to the City’s contention, the Supreme Court properly denied its motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it at the close of evidence on the issue of liability (see CPLR 4401). Viewing the evidence in the light most favorable to the plaintiff, and giving her the benefit of every favorable inference, there was a rational process by which the jury could have found both that the City had notice of the defect and that the defect was actionable (see Trincere v. County of Suffolk, 90 NY2d 976; Gordon v. American Museum of Natural History, 67 NY2d 836; Smith v. A.B.K. Apts., 284 AD2d 323; Guerrieri v. Summa, 193 AD2d 647). Thus, the finding of liability as against the City of Yonkers was proper. However, a new trial on the issue of the apportionment of fault is required due to unresolved jury confusion. The jury found that the City, Costa, and the plaintiff were all negligent, but that only the negligence of the City was a proximate cause of the damages alleged. However, despite finding a lack of proximate cause as to the negligence of Costa and the plaintiff, the jury apportioned each 15 percent of the total fault. The Supreme Court, based on its conclusion that the jury erroneously equated negligence with liability, held the City 100 percent at fault in the happening of the accident and dismissed the action as against Costa and Mascioli. This was error. The verdict was inconsistent and demonstrated substantial juror confusion that should have been resolved by resubmission of the case to the jury for further consideration (see CPLR 4111[c]; Roberts v. County of Westchester, 278 AD2d 216; Clarke v. Order of Sisters of St. Dominic, 273 AD2d 431; Bahadur v. G.C. Constr. Corp., 265 AD2d 514; DePasquale v. Morbark Indus., 254 AD2d 450). On the record, the jury’s intent as to the apportionment of fault among the parties found negligent cannot be determined. Thus, a new trial on that issue is required. However, the trial should be limited to the apportionment of fault as between the plaintiff and the City. We agree with Costa’s contention that no valid line of reasoning or permissible inferences could have led a rational jury to conclude that he was liable on the theory argued, i.e., that he made or had knowledge of a special use of the sidewalk and that such special use was a proximate cause of the defect at issue (see Infante v. City of New York, 258 AD2d 333; Miranda v. City of New York, 256 AD2d 605). The action should have been dismissed as against Costa on this alternative ground (see Parochial Bus Systems v. Board of Educ. of City of N.Y., 60 NY2d 539; Tarazi v. Exxon Corp., 269 AD2d 385). Similarly, contrary to the City’s contention, as to Mascioli, a valid line of reasoning and permissible inferences could have led a rational jury to conclude that Mascioli either did not make special use of the sidewalk or that such special use was not a proximate cause of the defect at issue (see Infante v. City of New York, supra; Miranda v. City of New York, supra). Thus, the dismissal of the action as against Mascioli was proper. Accordingly, we remit the matterto the Supreme Court, Westchester County, for a new trial on the issue of the apportionment of fault as between the plaintiff and the City of Yonkers only (see DiCamillo v. County of Nassau, 293 AD2d 563; Placakis v. City of New York, 289 AD2d 551; Glassman v. City of New York, 225 AD2d 658. Finally, since the sole evidence of the plaintiff’s medical expenses was a hospital bill in the amount of $13,509, the jury award for medical expenses deviated materially from what would be reasonable compensation to the extent it exceeded $13,509 (see O’Connor v. Rosenblatt, 276 AD2d 610; Lloyd v. Russo, 273 AD2d 359). RITTER, J.P., KRAUSMAN, FRIEDMANN and LUCIANO, JJ., concur. By Ritter, J.P.; Feuerstein, McGinity and Luciano, JJ. WALSH, plf, MULLEN, ap, v. ALTAM def, MAROCCHI, res – (INDEX NO. 42521/99)In an action to recover damages for personal injuries, the plaintiff Louise Mullen appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated February 19, 2002, as granted that branch of the motion of the defendant Angel Marocchi which was for summary judgment dismissing the complaint insofar as asserted by her against him. ORDERED that the order is affirmed insofar as appealed from, with costs. In opposition to the defendant Angel Marrochi’s demonstration of his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted by the plaintiff Louise Mullen against him, Mullen failed to raise a triable issue of fact (see CPLR 3212[b]; Zuckerman v. City of New York, 49 NY2d 557). Thus, the Supreme Court properly granted that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted by Mullen against Marocchi. RITTER, J.P., FEUERSTEIN, McGINITY and LUCIANO, JJ., concur.

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