Hand Down List decided on: December 6, 2017

By Balkin, J.P.; Sgroi, Cohen and Duffy, JJ.Maxine J. Alleyne, res, v. Erwin E. Grant, ap — (Index No. 49501/00)Bradley B. Davis, Massapequa, NY, for appellant.Lee M. Nigen, Brooklyn, NY (Ellery Ireland of counsel), for respondent.Appeals from an order of the Supreme Court, Kings County (Karen Rothenberg, J.), dated May 27, 2015, and a judgment of that court (Miriam Sunshine, Ct. Atty. Ref.), dated July 7, 2015. The order denied the defendant’s motion, inter alia, to direct a further accounting and remit the matter to the Referee for further proceedings. The judgment, upon, among other things, the order, inter alia, directed the defendant to execute a deed transferring his ownership interest in the subject premises to the plaintiff.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 order must be dismissed because the right of direct appeal therefrom terminated upon the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).The contentions raised by the defendant on this appeal were considered by this Court on a prior appeal. Therefore, the doctrine of the law of the case precludes reconsideration of those contentions (see Matter of Fulmer v. Buxenbaum, 96 AD3d 914, 916; Allison v. Allison, 60 AD3d 711).BALKIN, J.P., SGROI, COHEN and DUFFY, JJ., concur.By Priscilla Hall, J.P.; Roman, Cohen and Barros, JJ.PEOPLE, etc., res, v. Yahya Alsaidi, ap — (Ind. No. 14-00927)Anthony Keogh, White Plains, NY, for appellant.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Virginia A. Marciano of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered April 21, 2015, convicting him of assault in the first degree, gang assault in the first degree, and assault in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348-349), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410). Upon reviewing the record here, we are satisfied that the jury’s rejection of the defendant’s justification defense and its verdict of guilt were not against the weight of the evidence (see People v. Valentin, 29 NY3d 57, 61-62; People v. Romero, 7 NY3d 633; People v. Bennett, 279 AD2d 585).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).HALL, J.P., ROMAN, COHEN and BARROS, JJ., concur.By Priscilla Hall, J.P.; Roman, Cohen and Barros, JJ.PEOPLE, etc., res, v. Bassam A. (Anonymous), ap — (Ind. No. 14-00927)Robert Baer, White Plains, NY, for appellant.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Virginia A. Marciano of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered April 21, 2015, adjudicating him a youthful offender, upon a jury verdict finding him guilty of assault in the first degree, and imposing sentence.ORDERED that the judgment is affirmed.In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348-349), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).The defendant’s claim that he was deprived of the constitutional right to the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus constitutes a “mixed claim” of ineffective assistance (People v. Maxwell, 89 AD3d 1108, 1109; see People v. Evans, 16 NY3d 571, 575 n 2). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (see People v. Williams, 136 AD3d 686, 686; People v. Cruz, 127 AD3d 987, 988). Since the defendant’s claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Freeman, 93 AD3d 805, 806; People v. Maxwell, 89 AD3d at 1109; People v. Rohlehr, 87 AD3d 603, 604).HALL, J.P., ROMAN, COHEN and BARROS, JJ., concur.By Priscilla Hall, J.P.; Roman, Cohen and Barros, JJ.PEOPLE, etc., res, v. Yahya Alzandani, ap — (Ind. No. 14-00927)Harley D. Breite, White Plains, NY, for appellant.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Virginia A. Marciano of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered May 26, 2015, convicting him of assault in the first degree (two counts) and gang assault in the first degree, upon a jury verdict, and sentencing him to three concurrent determinate terms of imprisonment of 12 years, to be followed by 5 years of postrelease supervision.ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentences imposed from three concurrent determinate terms of imprisonment of 12 years, to be followed by 5 years of postrelease supervision, to three concurrent determinate terms of imprisonment of 7 years, to be followed by 5 years of postrelease supervision; as so modified, the judgment is affirmed.In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348-349), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).The defendant’s claim that he was deprived of the constitutional right to the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus constitutes a “mixed claim” of ineffective assistance (People v. Maxwell, 89 AD3d 1108, 1109; see People v. Evans, 16 NY3d 571, 575 n 2). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (see People v. Cruz, 127 AD3d 987, 988; People v. Robles, 116 AD3d 1071, 1071). Since the defendant’s claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Freeman, 93 AD3d 805, 806; People v. Maxwell, 89 AD3d at 1109; People v. Rohlehr, 87 AD3d 603, 604).Although the County Court did not improvidently exercise its discretion in denying the defendant youthful offender treatment (see CPL 720.20[1]; People v. Curtis, 218 AD2d 667; People v. Hampton, 148 AD2d 633), under the circumstances of this case, the sentence imposed was excessive to the extent indicated herein.HALL, J.P., ROMAN, COHEN and BARROS, JJ., concur.By Rivera, J.P.; Leventhal, Maltese and Duffy, JJ.MATTER of Christopher Cocchiaraley, pet, v. New York State Department of Health res — Christopher Cocchiaraley, Hartsdale, NY, petitioner pro se.Eric T. Schneiderman, Attorney General, New York, NY (Michael A. Berg of counsel), for respondent Anne E. Minihan.Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Anne E. Minihan, a Justice of the Supreme Court, Westchester County, from enforcing an order dated May 18, 2017, in a proceeding entitled Matter of Cocchiaraley v. New York State Department of Health, pending in the Supreme Court, Westchester County, under Index No. 51119/17.ADJUDGED that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.“Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v. Goldman, 71 NY2d 564, 569; see Matter of Rush v. Mordue, 68 NY2d 348, 352).The petitioner has failed to establish a clear legal right to the relief sought.RIVERA, J.P., LEVENTHAL, MALTESE and DUFFY, JJ., concur.By Balkin, J.P.; Hinds-Radix, Duffy and Connolly, JJ.Richard D. White, as administrator of the estate of Kenneth Dalyrymple, res, v. Souleymane Diallo ap, et al., def — (Index No. 18492/12)In an action to recover damages for personal injuries, the defendants Souleymane Diallo and Nevis Car & Limo Service, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated January 14, 2016, as denied their motion pursuant to CPLR 1021 to dismiss the complaint insofar as asserted against them for failure to substitute a legal representative for the estate of the deceased plaintiff within a reasonable time.ORDERED that the order is affirmed insofar as appealed from, with costs.This action was commenced on September 13, 2012, by Kenneth Dalyrymple (hereinafter the decedent), who alleged that he was injured while he was a passenger in a vehicle driven by the defendant Souleymane Diallo and owned by the defendant Nevis Car & Limo Service, Inc. (hereinafter together the defendants), when that vehicle came in contact with a vehicle owned and operated by the defendant Tarrence C. Canty. In March 2013, the decedent died from unrelated causes. Thereafter, in September 2014, the defendants moved pursuant to CPLR 1021 to dismiss the complaint insofar as asserted against them on the ground that there had been no substitution of a legal representative for the decedent’s estate and the reasonable time to do so had expired. The Supreme Court, inter alia, denied the motion, and the defendants appeal.CPLR 1021 provides, in pertinent part, that “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made.” The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, prejudice to the other parties, and whether the party to be substituted has shown that the action or defense has potential merit (see Borruso v. New York Methodist Hosp., 84 AD3d 1293, 1294; Reed v. Grossi, 59 AD3d 509, 511; Bauer v. Mars Assoc., 35 AD3d 333, 333-334; McDonnell v. Draizin, 24 AD3d 628, 628-629).Here, the record does not support the defendants’ contentions that there was a lack of diligence in the substitution of an administrator, or that they were prejudiced by the delay in the appointment of the administrator (see Public Adm’r v. Levine, 142 AD3d 467, 468-469; Wynter v. Our Lady of Mercy Med. Ctr., 3 AD3d 376, 378; see also Foley v. Foley, 151 AD3d 1018, 1018). Moreover, there is a strong public policy that matters should be disposed of on the merits (see e.g. Largo-Chicaiza v. Westchester Scaffold Equip. Corp., 90 AD3d 716, 717; Reed v. Grossi, 59 AD3d at 511-512; Rubino v. Krasinski, 54 AD3d 1016, 1017; Lewis v. Kessler, 12 AD3d 421, 421-422; Encalada v. City of New York, 280 AD2d 578, 579; Egrini v. Brookhaven Mem. Hosp., 133 AD2d 610). Accordingly, the Supreme Court properly denied the defendants’ motion to dismiss the complaint insofar as asserted against them (see Largo-Chicaiza v. Westchester Scaffold Equip. Corp., 90 AD3d at 717; Egrini v. Brookhaven Mem. Hosp., 133 AD2d at 610; see also Reed v. Grossi, 59 AD3d at 511-512; Rubino v. Krasinski, 54 AD3d at 1017; Lewis v. Kessler, 12 AD3d at 421-422; Encalada v. City of New York, 280 AD2d at 579).The parties’ remaining contentions are not properly before this Court or need not be reached in light of our determination (see Gairy v. 3900 Harper Ave., LLC, 146 AD3d 938, 939; Alejandro v. North Tarrytown Realty Assoc., 129 AD3d 749, 750).BALKIN, J.P., HINDS-RADIX, DUFFY and CONNOLLY, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix and Iannacci, JJ.US Bank, National Association, etc., ap, v. Joseph Mizrahi, respondent def — (Index No. 4078/08)In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Rothenberg, J.), dated September 13, 2012, which, sua sponte, directed dismissal of the complaint unless it filed a motion for summary judgment within 60 days, (2) an order of the same court dated November 29, 2012, which, sua sponte, directed dismissal of the complaint based on its failure to file a motion for summary judgment or otherwise proceed within 60 days as required by the order dated September 13, 2012, and (3) an order of the same court dated January 9, 2014, which denied that branch of its motion which was to vacate the order dated November 29, 2012.ORDERED that the appeals from the orders dated September 13, 2012, and November 29, 2012, are dismissed, without costs or disbursements, as no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701[a][2]), and we decline to grant leave to appeal, as the appeals have been rendered academic in light of our determination of the appeal from the order dated January 9, 2014; and it is further,ORDERED that the order dated January 9, 2014, is reversed, on the law, and that branch of the plaintiff’s motion which was to vacate the order dated November 29, 2012, is granted; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.In February 2008, the plaintiff US Bank, National Association (hereinafter US Bank), commenced an action to foreclose a mortgage given by the defendant Joseph Mizrahi (hereinafter the defendant). In 2011, US Bank stipulated to accept a late answer from the defendant. In an order dated September 13, 2012 (hereinafter the September order), the Supreme Court, after a status conference, sua sponte, directed US Bank to file a motion for summary judgment within 60 days or face dismissal of the complaint. In an order dated November 29, 2012, the Supreme Court, sua sponte, directed dismissal of the complaint on the ground that the plaintiff failed to file a motion for summary judgment or otherwise proceed within 60 days as required by the September order. Thereafter, US Bank moved, inter alia, to vacate the order dated November 29, 2012. In an order dated January 9, 2014, the Supreme Court denied, as relevant here, that branch of the motion which was to vacate the order dated November 29, 2012.“A court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met” (Patel v. MBG Devel., Inc., 41 AD3d 682, 682). The September order could not be deemed a 90-day demand pursuant to CPLR 3216 because it gave US Bank only 60 days within which to file a motion for summary judgment (see CPLR 3216[b][3]). Since the dismissal order dated November 29, 2012, merely effectuated the September order, which did not meet the statutory preconditions set forth in CPLR 3216, there was a failure of a condition precedent, and the Supreme Court was not authorized to dismiss the action on its own motion (see Patel v. MBG Devel., Inc., 41 AD3d at 683). In any event, there was no evidence that the plaintiff intended to abandon the action, that the default was willful, or that the defendants were prejudiced (see Vasquez v. New York City Hous. Auth., 51 AD3d 781; Atlantic J & S Spiritis Corp. v. Noll’s Boat Yard, 290 AD2d 525; see also Piszczatowski v. Hill, 93 AD3d 707).In light of our determination, the plaintiff’s remaining contention has been rendered academic.DILLON, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix and Iannacci, JJ.Joseph Mizrahi, res, v. US Bank, National Association, etc., appellant def — (Index No. 16793/14)In an action pursuant to RPAPL 1501(4) to cancel and discharge a mortgage, the defendant US Bank, National Association, appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated May 28, 2015, which denied its motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it or, in the alternative, pursuant to CPLR 2201 to stay all proceedings in the action pending resolution of its appeal in the related foreclosure action.ORDERED that the order is reversed, on the law, with costs, that branch of the appellant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it is granted, and the motion is otherwise denied as academic.On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v. Martinez, 84 NY2d 83, 87; Sposato v. Paboojian, 110 AD3d 979; Constructamax, Inc. v. Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 109 AD3d 574). Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v. Ginzburg, 43 NY2d 268, 275; Sposato v. Paboojian, 110 AD3d at 979; Constructamax, Inc. v. Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 109 AD3d at 574-575).RPAPL 1501(4) provides that “[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage… has expired,” any person with an estate or interest in the property may maintain an action “to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom.” Here, the plaintiff alleged in his complaint that the defendant US Bank, National Association (hereinafter US Bank), accelerated the underlying mortgage debt in February 2008, that an action by US Bank to foreclose the subject mortgage had been dismissed by order dated November 29, 2012, and that US Bank had failed to commence a new foreclosure action within six years after the acceleration of the mortgage debt. However, in support of its motion, US Bank submitted evidence demonstrating that it had appealed from an order denying that branch of its motion which was to vacate the November 2012 order dismissing the foreclosure action. This evidence demonstrated that, contrary to the allegations set forth in the complaint, the foreclosure action was still pending and unresolved (see Lehman Bros., Inc. v. Hughes Hubbard & Reed, 92 NY2d 1014, 1016-1017). Since the evidence submitted by US Bank demonstrated that material facts alleged in the plaintiff’s complaint were not facts at all, and that no significant dispute exists regarding them (see Reznick v. Bluegreen Resorts Mgt., Inc., 154 AD3d 891, 893, quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275), the Supreme Court should have granted that branch of US Bank’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.DILLON, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix and Iannacci, JJ.Joseph Mizrahi, res, v. US Bank, National Association, etc., appellant def — (Index No. 16793/14)In an action pursuant to RPAPL 1501(4) to cancel and discharge a mortgage, the defendant US Bank, National Association, appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Kings County (Rothenberg, J.), dated June 13, 2016, which, inter alia, in effect, granted that branch of the plaintiff’s motion which was for summary judgment on the complaint.ORDERED that the appeal is dismissed as academic, without costs or disbursements, and the provision of the order which, in effect, granted the plaintiff’s motion for summary judgment and the first through fifth decretal paragraphs thereof are vacated.In light of our determination on a related appeal granting that branch of the appellant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it (see Mizrahi v. US Bank, National Association, __ AD3d __ [Appellate Division Docket No. 2015-08105; decided herewith]), the instant appeal has been rendered academic.While it is the general policy of New York courts to simply dismiss an appeal which has been rendered academic, vacatur of an order or judgment on appeal may be an appropriate exercise of discretion where necessary “in order to prevent a judgment which is unreviewable for mootness from spawning any legal consequences or precedent” (Matter of Hearst Corp. v. Clyne, 50 NY2d at 718; see Matter of Adirondack Moose Riv. Comm. v. Board of Black Riv. Regulating Dist., 301 NY 219, 223; E-Z Eating 41 Corp. v. H.E. Newport L.L.C., 84 AD3d 401, 401-402; Funderburke v. New York State Dept. of Civ. Serv., 49 AD3d 809, 811; see also United States v. Munsingwear, Inc., 340 US 36, 40-41). Under the particular circumstances of this case, we deem it appropriate to vacate the provisions of the order appealed from (see Mannino v. Wells Fargo Home Mtge., Inc., 120 AD3d at 639).DILLON, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.By Eng, P.J.; Roman, Miller and Christopher, JJ.Chaim Victor Salameh res, v. Igor Yarkovski def, Cab East, LLC, ap — (Index No. 504141/16)In an action to recover damages for personal injuries, etc., the defendant Cab East, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Toussaint, J.), dated August 3, 2016, as denied, as premature, its motion for summary judgment dismissing the complaint insofar as asserted against it, with leave to renew after the completion of discovery.ORDERED that the order is affirmed insofar as appealed from, with costs.A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see Martino v. Midtown Trackage Ventures, LLC, 147 AD3d 1040, 1040; Okula v. City of New York, 147 AD3d 967, 968; Brea v. Salvatore, 130 AD3d 956, 956; Malester v. Rampil, 118 AD3d 855, 856). A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party’s position may exist but cannot then be stated (see CPLR 3212[f]; Ingram v. Bay Ridge Auto. Mgt. Corp., 145 AD3d 672, 672-673; Nicholson v. Bader, 83 AD3d 802, 802). ”A party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” (Antonyshyn v. Tishman Constr. Corp., 153 AD3d 1308, 1310 [internal quotation marks omitted]; see        Rungoo v. Leary, 110 AD3d 781, 783; Cajas-Romero v. Ward, 106 AD3d 850, 852).Here, the defendant Cab East, LLC (hereinafter Cab), moved for summary judgment dismissing the complaint insofar as asserted against it less than two months after the plaintiffs commenced this action, prior to the exchange of any discovery. Furthermore, in this action to recover damages for personal injuries arising from a motor vehicle accident, the submissions in opposition to Cab’s motion sufficiently established that facts may exist that would demonstrate that Cab owned one of the vehicles involved in the accident. Thus, an opportunity should be provided for the parties to conduct discovery which may result in disclosure of relevant information. Accordingly, the Supreme Court properly denied, as premature, Cab’s motion for summary judgment dismissing the complaint insofar as asserted against it, with leave to renew upon the completion of discovery (see CPLR 3212[f]; Martino v. Midtown Trackage Ventures, LLC, 147 AD3d at 1040; Ingram v. Bay Ridge Auto. Mgt. Corp., 145 AD3d at 673; Brea v. Salvatore, 130 AD3d at 957; Nicholson v. Bader, 83 AD3d at 802; cf. Rungoo v. Leary, 110 AD3d at 783; Cajas-Romero v. Ward, 106 AD3d at 852).ENG, P.J., ROMAN, MILLER and CHRISTOPHER, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.PEOPLE, etc., res, v. Shawn Lawrence, ap — (Ind. No. 1095-12)Appeal by the defendant from a judgment of the County Court, Suffolk County (Condon, J.), rendered February 22, 2016, convicting him of murder in the second degree, attempted murder in the second degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is reversed, on the law, and a new trial is ordered.The defendant was charged with murder in the second degree, attempted murder in the second degree (two counts), and criminal possession of a weapon in the second degree in connection with a shooting in Amityville, Suffolk County. Prior to the defendant’s trial, the People alerted the County Court to the fact that defense counsel was a potential witness in the case because he had interviewed the People’s main witness who had identified the defendant as a shooter, and in that interview the witness had recanted the identification. That interview was not witnessed by anyone else. As a concession, defense counsel agreed to forgo cross-examination of the witness regarding the interview. The defendant was informed of the issue and independent counsel was appointed to advise him on the issue. When court reconvened days later, the defendant indicated that he wished for his attorney to continue to represent him but refused to waive any conflict. At that point, the People sought to have defense counsel relieved. The court declined. The defendant was convicted of murder in the second degree, two counts of attempted murder in the second degree, and criminal possession of a weapon in the second degree.A determination to substitute or disqualify counsel falls within the trial court’s discretion (see People v. Carncross, 14 NY3d 319, 330; People v. Tineo, 64 NY2d 531, 536). ”That discretion is especially broad when the defendant’s actions with respect to counsel place the court in the dilemma of having to choose between undesirable alternatives, either one of which would theoretically provide the defendant with a basis for appellate review” (People v. Tineo, 64 NY2d at 536; see People v. Carncross, 14 NY3d at 330; People v. Robinson, 121 AD3d 1179, 1180). Criminal courts faced with counsel who allegedly have a conflict of interest must balance two conflicting constitutional rights: the defendant’s right to effective assistance of counsel, and the defendant’s right to be represented by counsel of his or her own choosing (see US Const Sixth Amend; People v. Carncross, 14 NY3d at 327; People v. Gomberg, 38 NY2d 307, 312-313).Courts should not arbitrarily interfere with the attorney-client relationship, but must protect the defendant’s right to effective assistance of counsel (see People v. Carncross, 14 NY3d at 327; People v. Gomberg, 38 NY2d at 313; see also Wheat v. United States, 486 US 153, 159-160). Thus, the court must satisfy itself that the defendant has made an informed decision to continue with counsel despite the possible conflict, yet avoid pursuing its inquiry too far so as not to intrude into confidential attorney-client communications or discussions of possible defenses (see People v. Gomberg, 38 NY2d at 313; see also Holloway v. Arkansas, 435 US 475, 487). The presumption in favor of a client being represented by counsel of his or her choosing may be overcome by demonstration of an actual conflict or a serious potential for conflict (see Wheat v. United States, 486 US at 164).Here, defense counsel’s actions of interviewing the prosecution’s main witness alone and being the only person who could testify to the witness’s recantation of his identification of the defendant as a shooter created an actual conflict of interest. Defense counsel was faced with the choice of testifying on behalf of his client, which would result in his disqualification, or not presenting evidence of an exculpatory statement (see United States v. Kliti, 156 F3d 150 [2d Cir]). Under the circumstances, especially in light of the defendant’s refusal to waive any conflict, the County Court erred in denying the People’s application to relieve defense counsel.Accordingly, the defendant is entitled to a new trial.ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Mastro, J.P.; Hall, Miller and Brathwaite Nelson, JJ.All Seasons Fuels, Inc. appellants-res, v. Morgan Fuel & Heating Co., Inc., etc., respondent- ap — (Index No. 8962/13)Appeals from (1) an order of the Supreme Court, Orange County (Catherine M. Bartlett, J.), dated April 27, 2015, and (2) an interlocutory judgment of that court entered May 29, 2015. Cross appeal from the order dated April 27, 2015. The order, insofar as appealed from, denied that branch of the motion of the plaintiff All Seasons Fuels, Inc., which was for summary judgment on the issue of damages on the second cause of action, and granted that branch of the defendant’s cross motion which was for summary judgment on its first counterclaim to the extent of directing the plaintiff Charlene Flood to comply with her obligations under paragraph 5(d) of the subject employment agreement. The order, insofar as cross-appealed from, granted that branch of the motion of the plaintiff All Seasons Fuels, Inc., which was for summary judgment on the issue of liability on the second cause of action, and denied those branches of the defendant’s cross motion which were, in effect, to strike certain portions of the affidavit of James Suto, for summary judgment dismissing the second cause of action and so much of the third cause of action as sought damages, and for summary judgment on its second and third counterclaims against the plaintiffs. The interlocutory judgment, upon the order, directed the plaintiff Charlene Flood to return to the defendant any confidential information that she had received in tangible form during her employment with the defendant.ORDERED that the appeal from so much of the order as granted that branch of the defendant’s cross motion which was for summary judgment on its first counterclaim against the plaintiff Charlene Flood is dismissed, without costs or disbursements, as that portion of the order was superseded by the interlocutory judgment; and it is further,ORDERED that the order is affirmed insofar as reviewed on the appeal and insofar as cross-appealed from, without costs or disbursements; and it is further,ORDERED that the interlocutory judgment is affirmed, without costs or disbursements.In September 2011, the plaintiff All Seasons Fuels, Inc. (hereinafter All Seasons), executed an asset purchase agreement (hereinafter the APA) to sell its assets to the defendant, a distributor of petroleum products. In exchange, All Seasons was entitled to receive a commission on each gallon of heating oil, kerosene, on-road diesel fuel, and off-road diesel fuel that the defendant sold from September 2011 through September 2014 to entities to be designated on a customer list that All Seasons was required to provide to the defendant at the closing. The customer list was defined under the APA as consisting of “those individuals and entities that purchased products from [All Seasons] within the eighteen months immediately prior to the execution of” the APA. The defendant prepaid between $240,000 and $242,000 to All Seasons toward the amount that would be due to All Seasons for commissions under the APA. All Seasons was not entitled to any further payment from the defendant until the amount accrued exceeded the sum that the defendant had prepaid. At the closing on September 8, 2011, All Seasons gave the defendant its computer, which contained customer names and addresses. From the computer, the defendant generated a list containing All Seasons’ customers.The plaintiff Charlene Flood, who was the owner of All Seasons, entered into a separate written contract with the defendant to work as a salesperson for the defendant from September 2011 through September 2014 (hereinafter the Employment Agreement). Under the terms of the Employment Agreement, Flood was entitled to an annual salary and a “bonus,” or commission, for commercial propane sales and for each gallon of residential propane, heating oil, or kerosene sold to any new full price customer during the term of her employment.Flood’s employment with the defendant terminated on or about February 18, 2013. In or about December 2013, the plaintiffs commenced this action against the defendant. The plaintiffs alleged in their second cause of action that the defendant had breached the APA by underreporting the sales that the defendant had made to All Seasons’ customers, and by failing to give All Seasons credit for all of the commissions that it was entitled to under the APA. In their third cause of action, the plaintiffs alleged, inter alia, that the defendant breached the Employment Agreement by failing to give Flood credit for all of the commissions that she was entitled to under the Employment Agreement.In its answer, the defendant asserted a counterclaim against Flood, alleging that she had violated paragraph 5(d) of the Employment Agreement, which required her to return to the defendant all copies of the defendant’s confidential material after her employment terminated. The defendant also asserted a counterclaim against the plaintiffs alleging, in effect, that it had advanced $242,000 to All Seasons pursuant to the APA, that under the Employment Agreement, commissions earned by Flood were also credited against the debt created by the prepayment, that the plaintiffs failed to earn $242,000 in commissions during the three-year period of the APA and the Employment Agreement, and that it was entitled to a money judgment in the amount equal to the difference between $242,000 and the commissions that the plaintiffs had earned.All Seasons moved for summary judgment on the second cause of action alleging breach of contract. In support of its motion, All Seasons presented evidence that the defendant had provided All Seasons with commissions only on sales to customers that had placed orders using All Seasons’ prior telephone number, which All Seasons sold to the defendant as part of the APA. All Seasons alleged that the sales records produced by the defendant in discovery and during the term of the APA were voluminous, inaccurate, and incomplete, and, as a result, sought to prove its damages through the affidavit of its accountant, James Suto. Suto extrapolated the post-closing sales that the defendant allegedly should have made to All Seasons’ customers, and the commissions that All Seasons allegedly was entitled to, by using All Seasons’ pre-closing sales history.The defendant cross-moved, inter alia, for summary judgment dismissing the second cause of action and so much of the third cause of action as sought damages, and, in effect, to strike the damages analysis set forth in Suto’s affidavit on the basis that he was not qualified to render an expert opinion on damages. The defendant also cross-moved for summary judgment on its first counterclaim, which was against Flood, seeking the return of its confidential material pursuant to paragraph 5(d) of the Employment Agreement, and on its second and third counterclaims seeking damages.In the order appealed and cross-appealed from, the Supreme Court, inter alia, granted that branch of All Seasons’ motion which was for summary judgment on the issue of the defendant’s liability on the second cause of action, and denied that branch of All Seasons’ motion which was for summary judgment on the issue of damages on the second cause of action. The court granted that branch of the defendant’s cross motion which was for summary judgment on its counterclaim against Flood seeking the return of confidential material pursuant to paragraph 5(d) of the Employment Agreement, and denied the remaining branches of the defendant’s cross motion. In the interlocutory judgment appealed from, the court, upon the order, directed Flood to comply with her obligations under paragraph 5(d) of the Employment Agreement.To recover damages for breach of contract, a plaintiff must demonstrate the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach (see Alliance Natl. Ins. Co. v. Absolut Facilities Mgt., LLC, 140 AD3d 810; Legum v. Russo, 133 AD3d 638, 639). Here, All Seasons demonstrated its prima facie entitlement to judgment as a matter of law on the issue of the defendant’s liability on the second cause of action. All Seasons submitted evidence demonstrating that the defendant breached the APA by only providing All Seasons with credit for commissions on sales that were made to customers that had placed orders using All Seasons’ former telephone number. The APA did not condition All Seasons’ entitlement to receive a commission on whether a customer used All Seasons’ prior telephone number to place an order.In opposition, the defendant failed to raise a triable issue of fact as to whether it breached the APA. The APA unambiguously required the defendant to pay All Seasons a commission on every sale to an individual or entity that had purchased products from All Seasons within the 18 months immediately prior to the execution of the APA. Therefore, contrary to the defendant’s contention, extrinsic evidence that the term “customer” in the APA was intended to mean a customer “name and delivery location” failed to raise a triable issue of fact in opposition to All Seasons’ prima facie showing (see Glass v. Del Duca, 151 AD3d 941; B&H Assoc. of NY, LLC v. Fairley, 148 AD3d 1097, 1099; Scotto v. Georgoulis, 89 AD3d 717, 719). Furthermore, the summary of sales records, and the affidavits from Mark Bottini, the defendant’s secretary, and Mark Caprara, the defendant’s comptroller, were insufficient to raise a triable issue of fact as to whether the defendant breached the APA. Bottini and Caprara did not dispute that the defendant had credited All Seasons only for commissions on sales that were made to customers that had placed orders using All Seasons’ former telephone number. Their contention that, due to the prepayment amount, All Seasons would not have sustained any damages even if it had been properly credited for commissions in accordance with the APA was relevant to the issue of damages and not liability (see Woodruff v. Castaldo, 113 AD2d 403, 408). The defendant’s remaining contentions with respect to that branch of All Seasons’ motion are without merit. Accordingly, the Supreme Court properly granted that branch of All Seasons’ motion which was for summary judgment on the issue of the defendant’s liability on the second cause of action.However, All Seasons failed to establish, prima facie, its entitlement to judgment as a matter of law with respect to the issue of damages on its second cause of action. Although the Supreme Court did not err in denying that branch of the defendant’s cross motion which was, in effect, to strike certain portions of Suto’s affidavit (see Rivers v. Birnbaum, 102 AD3d 26, 31; see generally Siegel, NY Prac §281, at 482 [5th ed, 2011]), the affidavit was nevertheless insufficient to establish, as a matter of law, the amount of damages sustained by All Seasons as a result of the defendant’s breach of the APA (see generally Berley Indus. v. City of New York, 45 NY2d 683, 686-687). Accordingly, the court properly denied that branch of All Seasons’ motion which was for summary judgment on the issue of damages on the second cause of action, without regard to the sufficiency of the defendant’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).The Supreme Court also properly denied that branch of the defendant’s cross motion which was for summary judgment on its second counterclaim, which was asserted against both of the plaintiffs. The defendant failed to establish, prima facie, that the prepayment amount that it tendered pursuant to the APA exceeded the amount of commissions earned by the plaintiffs under the terms of the parties’ agreements. Accordingly, that branch of the defendant’s cross motion was properly denied, regardless of the sufficiency of the plaintiffs’ opposition papers (see id. at 853). For the same reasons, the court properly denied those branches of the defendant’s cross motion which were for summary judgment dismissing the second cause of action and so much of the third cause of action as sought damages.Contrary to the plaintiffs’ contention, the defendant properly denominated its request for summary judgment on its counterclaim against Flood as a cross motion. In addition to seeking summary judgment on its counterclaim against Flood, the defendant also sought summary judgment dismissing the second cause of action and so much of the third cause of action as sought damages, and therefore sought affirmative relief against All Seasons, which was the moving party (see Mora v. Nakash, 118 AD3d 964, 965; Darras v. Romans, 85 AD3d 710, 711-712). Accordingly, the Supreme Court properly directed Flood to comply with her obligations under paragraph 5(d) of the Employment Agreement.The parties’ remaining contentions either are without merit, are improperly raised for the first time on appeal, or need not be reached in light of our determination.MASTRO, J.P., HALL, MILLER and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Leventhal, Austin and Iannacci, JJ.Bank of New York Mellon, formerly known as Bank of New York, as Trustee for the Benefit of the Certificateholders, CWALT, Inc., Alternative Loan Trust 2007-3T1, Mortgage Pass-Through Certificates, Series 2007-3T1, res, v. Safraz Alli appellants def — (Index No. 13114/10)Appeal from an order of the Supreme Court, Queens County (Howard G. Lane, J.), dated February 17, 2016. The order, insofar as appealed from, upon a decision of that court dated October 13, 2015, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Safraz Alli and Bibi Shameena Alli and for an order of reference.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Safraz Alli and Bibi Shameena Alli and for an order of reference are denied.On February 23, 2005, Safraz Alli (hereinafter the defendant) executed a note in the sum of $445,500 in favor of CIT Group/Consumer Finance, Inc., which was secured by a mortgage on residential property located in Queens (hereinafter the premises). The mortgage was executed by the defendant and Bibi Shameena Alli (hereinafter together the defendants). On January 24, 2007, the defendant executed a note in the sum of $22,728.51 in favor of America’s Wholesale Lender, which was also secured by a mortgage on the premises. Pursuant to a consolidation, extension, and modification agreement, the notes and mortgages were consolidated into a single lien in the sum of $460,000. The defendant executed a consolidated note dated January 24, 2007, and the defendants executed a consolidated mortgage. By assignment of mortgage dated March 17, 2010, Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for America’s Wholesale Lender, assigned the consolidated mortgage, “TOGETHER with the bond or note or obligation described in said mortgage,” to the plaintiff.In May 2010, the plaintiff commenced this action against the defendants, among others, to foreclose the mortgage. The defendants served an answer, asserting the affirmative defense that the plaintiff lacked standing. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, and for an order of reference. The defendants opposed the motion, arguing that the plaintiff failed to establish, prima facie, that it had standing to commence the action. In an order dated February 17, 2016, the Supreme Court, upon a decision dated October 13, 2015, granted the motion. The defendants appeal.“Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” (Deutsche Bank Natl. Trust Co. v. Abdan, 131 AD3d 1001, 1002 [internal quotation marks omitted]; see Hudson City Sav. Bank v. Genuth, 148 AD3d 687). Where a plaintiff’s standing to commence a foreclosure action is placed in issue by a defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d 725; Wells Fargo Bank, N.A. v. Arias, 121 AD3d 973, 973-974). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361-362; U.S. Bank, N.A. v. Noble, 144 AD3d 786; U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 753-754). Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d at 726; U.S. Bank N.A. v. Saravanan, 146 AD3d 1010, 1011; Deutsche Bank Natl. Trust Co. v. Logan, 146 AD3d 861, 862).Here, the plaintiff failed to meet its prima facie burden of establishing its standing (see Wells Fargo Bank, N.A. v. Talley, 153 AD3d 583). In support of its motion, the plaintiff submitted the affidavit of Dara Foye, a document coordinator for Bayview Loan Servicing, LLC (hereinafter Bayview), the loan servicer. Foye averred, based on her review of Bayview’s business records, that the original, endorsed consolidated note was delivered to the plaintiff on January 24, 2007, and that the plaintiff “maintained possession of the original note since that date up until and including the date the action was commenced on May 24, 2010.” However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Foye under the business records exception to the hearsay rule (see CPLR 4518[a]), since Foye did not attest that she was personally familiar with the record-keeping practices and procedures of the plaintiff (see Wells Fargo Bank, N.A. v. Talley, 153 AD3d at 583; Arch Bay Holdings, LLC v. Albanese, 146 AD3d 849, 853; Aurora Loan Servs., LLC v. Baritz, 144 AD3d 618, 620; Deutsche Bank Natl. Trust Co. v. Brewton, 142 AD3d 683, 685). The plaintiff also failed to establish its standing based on the purported assignment of the note and mortgage to it by MERS, as it failed to submit any evidence establishing delivery or assignment of the note to MERS prior to its execution of the assignment to the plaintiff (see Arch Bay Holdings, LLC v. Albanese, 146 AD3d at 853). Since the plaintiff failed to meet its prima facie burden, the Supreme Court should have denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, without regard to the sufficiency of the defendants’ opposition papers (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.By Dillon, J.P.; Cohen, Connolly and Christopher, JJ.Melissa Mercado, ap, v. Jennifer Horn, as executor of the estate of Anna Horn res — (Index No. 33872/14)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Alfieri, Jr., J.), dated September 16, 2016, which granted the defendants’ motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.On the evening of September 18, 2013, a two-car accident occurred on Route 59 at its intersection with Blakeslee Place in Rockland County. Route 59 at its intersection with Blakeslee Place is a two-way street with one lane of travel in each direction and a two-way left-turn lane in the middle, which was available to vehicles traveling in both directions. Blakeslee Place was governed by a stop sign at this intersection. Immediately prior to the accident, the plaintiff was attempting to make a left turn from Blakeslee Place into the eastbound lane of Route 59 when her vehicle collided with the defendants’ vehicle. The defendants’ vehicle was operated by the defendant Brian Horn (hereinafter the defendant driver) and was traveling straight in a westerly direction in the two-way left-turn lane of Route 59. The plaintiff testified that she brought her vehicle to a stop before turning and that she saw the defendants’ vehicle at the time of the impact. The Supreme Court granted the defendants’ motion for summary judgment dismissing the complaint, and the plaintiff appeals.Here, the defendants established their entitlement to judgment as a matter of law by demonstrating, prima facie, that the plaintiff failed to see what was there to be seen and failed to yield the right-of-way (see Vehicle and Traffic Law §1142[a]; Fuertes v. City of New York, 146 AD3d 936, 937; Crowe v. Hanley, 123 AD3d 755, 757; Exime v. Williams, 45 AD3d 633, 634). In opposition, however, the plaintiff raised a triable issue of fact. There was conflicting evidence as to how far the accident site was from where the defendant driver intended to make a left turn. Under the circumstances, triable issues of fact exist as to whether the defendant driver was properly using the two-way left-turn lane at the time of the accident and whether his alleged negligence was a proximate cause of the accident (see Vehicle and Traffic Law §1126[c]; Dowling v. Consolidated Carriers Corp., 65 NY2d 799).Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Leventhal, Austin and Iannacci, JJ.Corex-SPA, ap, v. Janel Group of New York, Inc., res — (Index No. 601372/14)In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered June 27, 2016, which, upon the conditional granting of the defendant’s motion pursuant to CPLR 3126 to dismiss the complaint unless the plaintiff provided full and complete responses to the defendant’s notice for discovery and inspection and interrogatories within a specified time, directed dismissal of the complaint.ORDERED that the order is affirmed, with costs.The plaintiff commenced this action against the defendant to recover damages for breach of contract. The defendant served the plaintiff with a notice for discovery and inspection of documents dated June 2, 2015. The plaintiff did not respond to this demand within 20 days.The parties then appeared for a preliminary conference on July 8, 2015. According to the preliminary conference order, the parties were to serve discovery responses by September 10, 2015. Following the preliminary conference, the defendant served the plaintiff with a set of interrogatories on August 10, 2015. The plaintiff did not respond by September 10, 2015, to either the notice for discovery and inspection of documents or the interrogatories. The defendant extended the plaintiff’s time to respond to both demands to September 30, 2015, but the plaintiff failed to respond by that date.In November 2015, the defendant moved pursuant to CPLR 3126 to dismiss the complaint for the plaintiff’s failure to comply with discovery demands. The plaintiff opposed the motion and provided a proposed draft response to the defendant’s notice for discovery and inspection, attaching documents which it had previously supplied to the defendant in opposition to the defendant’s pre-answer motion to dismiss the complaint pursuant to CPLR 3211(a)(7). The proposed response did not identify which of the documents were being submitted in response to the 14 categories of documents demanded in the notice for discovery and inspection. The plaintiff did not provide a response to the outstanding interrogatories, but indicated that its attorneys were working with its agent based in New Jersey and personnel in its corporate offices in Italy to provide adequate responses and disclosure to the defendant’s demands and “hope[d]” to respond to those demands within days. In an order entered May 13, 2016 (hereinafter the conditional order), the Supreme Court conditionally granted the defendant’s motion to dismiss the complaint unless the plaintiff provided full and complete responses to the defendant’s notice for discovery and inspection and interrogatories by June 3, 2016. In the conditional order, the court advised the plaintiff that its failure to provide full and complete responses by the deadline would result in dismissal of the complaint.On June 3, 2016, the plaintiff e-filed an affidavit of its owner, which was undated and unsworn, stating that its agent in New Jersey had disappeared after embezzling $2 million and that the agent had failed to provide to the plaintiff’s attorneys the information necessary to respond to the defendant’s discovery demands, which caused the plaintiff’s delay in providing discovery responses. The plaintiff also e-filed an undated and unsworn response to the defendant’s interrogatories. The plaintiff did not provide an updated response to the defendant’s notice for discovery and inspection.In the order appealed from, the Supreme Court directed dismissal of the complaint upon the plaintiff’s failure to provide full and complete responses to the defendant’s discovery demands by the deadline set forth in the conditional order. The plaintiff appeals.“Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court” (Morales v. Zherka, 140 AD3d 836, 836-837; see Isaacs v. Isaacs, 71 AD3d 951, 952). ”Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be disturbed” (Lotardo v. Lotardo, 31 AD3d 504, 505; see Morales v. Zherka, 140 AD3d at 837; Parker Waichman, LLP v. Laraia, 131 AD3d 1215, 1216).If a party refuses to obey an order for disclosure or willfully fails to disclose information, the court may dismiss the action (see CPLR 3126[3]). ”While actions should be resolved on the merits when possible, a court may strike [a pleading] upon a clear showing that [a party's] failure to comply with a disclosure order was the result of willful and contumacious conduct” (Almonte v. Pichardo, 105 AD3d 687, 688; see Harris v. City of New York, 117 AD3d 790, 790; Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 210; Zakhidov v. Boulevard Tenants Corp., 96 AD3d 737, 739).Here, the willful and contumacious character of the plaintiff’s actions can be inferred from its repeated failure to respond adequately to the defendant’s notice for discovery and inspection and interrogatories, and the absence of any adequate explanation for its failure to timely comply with those requests, or the deadline set forth in the preliminary conference order (see Montemurro v. Memorial Sloan-Kettering Cancer Ctr., 94 AD3d 1066, 1066; Quinones v. Long Is. Jewish Med. Ctr., 90 AD3d 632, 633; Howe v. Jeremiah, 51 AD3d 975, 975-976; Watson v. Hall, 43 AD3d 435; Powell v. Cipollaro, 34 AD3d 551, 551-552; Devito v. J & J Towing, Inc., 17 AD3d 624, 625).When the plaintiff failed to provide full and complete responses to the defendant’s discovery demands within the specified time, the conditional order became absolute (see Patino v. Carlyle Three, LLC, 148 AD3d 1175, 1176; Almonte v. Pichardo, 105 AD3d at 688). To be relieved of the adverse impact of the conditional order directing dismissal of the complaint, the plaintiff was required to demonstrate a reasonable excuse for its failure to provide full and complete responses to the defendant’s discovery demands and that its cause of action was potentially meritorious (see Gibbs v. St. Barnabas Hosp., 16 NY3d 74, 80; Patino v. Carlyle Three, LLC, 148 AD3d at 1176; Lee v. Barnett, 134 AD3d 908, 910; Estate of Alston v. Ramseur, 124 AD3d 713, 713). The plaintiff’s submission of an unsworn and unsigned affidavit from its owner did not demonstrate either. Thus, dismissal of the complaint was properly directed.BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.MATTER of Debora Winn, res, v. Naim Diaz, ap — (Docket No. V-21013-15)Salvatore C. Adamo, New York, NY, for appellant.Glen Gucciardo, Northport, NY, attorney for the child.Appeal by the father from an order of the Family Court, Suffolk County (Rosann Orlando, Ct. Atty. Ref.), dated October 20, 2016. The order, after a fact-finding hearing, granted the maternal grandmother’s petition for visitation with the subject child pursuant to Domestic Relations Law §72(1).ORDERED that the order is affirmed, without costs or disbursements.The subject child was born in September 2015. Eight days after giving birth, the child’s mother suffered a cardiac arrest, which has left her unable to speak or eat on her own. On or about December 28, 2015, the child’s maternal grandmother commenced this proceeding seeking visitation with the child pursuant to Domestic Relations Law §72(1), alleging that the child’s father had refused to grant her access to the child since the mother’s cardiac arrest. After a fact-finding hearing, the Family Court granted the petition, finding that the grandmother had standing to commence the proceeding and that her visitation with the child was in the child’s best interests. The father appeals.“‘When a grandparent seeks visitation pursuant to Domestic Relations Law §72(1), the court must make a two-part inquiry’” (Matter of Moskowitz v. Moskowitz, 128 AD3d 1070, 1070, quoting Matter of Brancato v. Federico, 118 AD3d 986, 986; see Matter of Gray v. Varone, 101 AD3d 1122, 1123). ”First, it must find that the grandparent has standing, based on, inter alia, equitable considerations” (Matter of Gray v. Varone, 101 AD3d at 1123; see Matter of Moskowitz v. Moskowitz, 128 AD3d at 1070; Matter of Brancato v. Federico, 118 AD3d at 986). ”If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child” (Matter of Gray v. Varone, 101 AD3d at 1123; see Matter of E.S. v. P.D., 8 NY3d 150, 157; Matter of Moskowitz v. Moskowitz, 128 AD3d at 1070). ”In considering whether a grandparent has standing to petition for visitation based upon ‘circumstances show[ing] that conditions exist which equity would see fit to intervene’ (Domestic Relations Law §72[1]), ‘an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,’ among other factors” (Matter of Lipton v. Lipton, 98 AD3d 621, 621, quoting Matter        of Emanuel S. v. Joseph E., 78 NY2d 178, 182; see Matter of Moskowitz v. Moskowitz, 128 AD3d at 1070). The court must also consider “‘the nature and basis of the parents’ objection to visitation’” (Matter of Bender v. Cendali, 107 AD3d 981, 982, quoting Matter of Emanuel S. v. Joseph E., 78 NY2d at 182; see Matter of Brancato v. Federico, 118 AD3d at 986).Here, the Family Court providently exercised its discretion in determining that the grandmother had standing to petition for visitation pursuant to Domestic Relations Law §72(1) (see Matter of Gort v. Kull, 96 AD3d 842, 843). The evidence adduced at the hearing established that the grandmother had a close relationship with, and maintained regular contact with, her daughter, who is the mother of the child. The grandmother further established that she had repeatedly contacted the father in an attempt to visit with the child, and that the mother would have allowed regular contact between the grandmother and the child had she not become incapacitated (see Matter of Seddio v. Artura, 139 AD3d 1075, 1076-1077; Matter of Gray v. Varone, 101 AD3d at 1123; Matter of Gort v. Kull, 96 AD3d at 843; Matter of Agusta v. Carousso, 208 AD2d 620, 621).The Family Court also properly determined that visitation between the grandmother and the child was in the child’s best interests. Animosity alone is insufficient to deny visitation (see Matter of Hilgenberg v. Hertel, 100 AD3d 1432, 1433-1434). In cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the grandchildren. Were it otherwise, visitation could be achieved by agreement (see id. at 1433-1434; compare Matter of E.S. v. P.D., 27 AD3d 757, 758-759, affd 8 NY3d 150, with Matter of Wilson v. McGlinchey, 2 NY3d 375, 382, and Matter of Coulter v. Barber, 214 AD2d 195, 197). Here, the estrangement between the grandmother and the child resulted principally from the animosity between the father and the grandmother, and the court providently exercised its discretion in determining that it was in the child’s best interests to grant the grandmother’s petition for visitation (see Matter of Seddio v. Artura, 139 AD3d at 1077; Matter of Luft v. Luft, 123 AD3d 831, 832; Matter of Gort v. Kull, 96 AD3d at 843).BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.MATTER of Kelly A. Goulding, res, v. Michael Goulding, ap — (Docket No. F-19438-08)Laurette D. Mulry, Central Islip, NY (Daniel R. Howard of counsel), for appellant.Appeal by the father from an order of the Family Court, Suffolk County (Bernard Cheng, J.), dated October 17, 2016. The order denied the father’s objections to an order of that court (Aletha V. Fields, S.M.), dated February 11, 2016, which, after a hearing, found that he was in willful violation of a prior order of that court directing payment of child support.ORDERED that the order dated October 17, 2016, is affirmed, without costs or disbursements.The mother commenced this proceeding pursuant to Family Court Act article 4 against the father, alleging that he was in willful violation of a child support order. Following a hearing, the Support Magistrate issued an order, dated February 11, 2016, inter alia, finding that the father was in willful violation of the order of support. The Support Magistrate referred the matter to a Judge of the Family Court for confirmation pursuant to Family Court Act §439(a), and recommended that the father serve a period of incarceration. On that same date, the Family Court confirmed the determination of willfulness, and issued an order of commitment, dated February 11, 2016, which committed the father to the custody of the Suffolk County Correctional Facility unless he paid a purge amount of $4,658.10. The father filed objections to the Support Magistrate’s order, and in an order dated October 17, 2016, the court denied his objections to the Support Magistrate’s order. The father now appeals from the order dated October 17, 2016.The father failed to pursue his sole remedy, which was an appeal from the order of commitment dated February 11, 2016, entered upon confirmation of the Support Magistrate’s determination (see Matter of Flanagan v. Flanagan, 109 AD3d 470, 471; Matter of Dakin v. Dakin, 75 AD3d 639, 640; Matter of Roth v. Bowman, 245 AD2d 521, 522). Since the father improperly filed objections to the nonfinal order of the Support Magistrate, the Family Court correctly denied his objections (see Matter of Ceballos v. Castillo, 85 AD3d 1161, 1163-1164; Matter of Dakin v. Dakin, 75 AD3d at 640).RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.MATTER of Stamatoula Lorandos, ap, v. Simeon Karakatsiotis, res — (Docket No. F-11333-16/16A)Deana Balahtsis, New York, NY, for appellant.Joseph Daniels, New York, NY, for respondent.Appeal by the mother from an order of the Family Court, Kings County (Jacqueline B. Deane, J.), dated November 2, 2016. The order denied the mother’s objections to an order of that court (Mirna Mompelas, S.M.), dated August 30, 2016, which granted the father’s petition to vacate the registration in New York of an order of a foreign court on the ground of lack of personal jurisdiction.ORDERED that the order dated November 2, 2016, is affirmed, with costs.The parties were married in 1981 and are the parents of two children. In 1995, the mother, who then resided in Greece, filed a petition in that country seeking, inter alia, an award of child support. An order of the First Instance Court of Athens, Greece (hereinafter the foreign order), entered a default judgment against the father pursuant to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents (20 UST 361, TIAS No. 6638 [1969]), awarding the mother, inter alia, child support. In 2015, the mother filed a petition seeking to enforce the foreign order, and in May 2016, registered the foreign order in the Family Court, Kings County. The father then filed a petition to vacate the registration of the foreign order on the ground of lack of personal jurisdiction. The Support Magistrate granted the father’s petition to vacate on the ground of lack of personal jurisdiction. In the order appealed from, the Family Court denied the mother’s objections to the Support Magistrate’s order. The mother appeals.In order for the decree of a foreign court to be accorded recognition in this State, the court must have had in personam jurisdiction over the parties (see Daguerre, S.A.R.L. v. Rabizadeh, 112 AD3d 876, 877-878; Aranoff v. Aranoff, 226 AD2d 657, 658; Vazquez v. Sund Emba AB, 152 AD2d 389). A New York court is permitted to scrutinize the basis of the foreign court’s jurisdiction; “an assertion of jurisdiction by a foreign court should not preclude a challenge here” (Matter of Claire Lucia D. v. Russell Morris D., 43 AD3d 286, 287 [internal quotation marks omitted]).The Family Court properly denied the mother’s objections to the Support Magistrate’s order, which found that the Greek court failed to follow the requirements of the Hague Convention regarding personal jurisdiction. Hence, the foreign order was not entitled to comity by the courts of this State (see Greschler v. Greschler, 51 NY2d 368, 376; Daguerre, S.A.R.L. v. Rabizadeh, 112 AD3d at 877-878; Aranoff v. Aranoff, 226 AD2d at 658).BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Dillon, J.P.; Cohen, Connolly and Christopher, JJ.MATTER of Leonard L. Germain, Jr., ap, v. Town of Chester Planning Board, res-res, et al., res — (Index No. 12/16)In a proceeding pursuant to CPLR article 78 to review a determination of the Town of Chester Planning Board dated December 2, 2015, granting the application of the respondent Primo Sports for site plan approval of the subject property, the petitioner appeals from an order of the Supreme Court, Orange County (G. Walsh, J.), dated April 1, 2016, which granted the motion of the respondent Town of Chester Planning Board to dismiss the petition insofar as asserted against it for failure to join a necessary party.ORDERED that on the Court’s own motion, the notice of appeal is deemed to be an application for leave to appeal from the order, and leave to appeal is granted (see CPLR 5701[b][1]; [c]); and it is further,ORDERED that the order is reversed, on the law, without costs or disbursements, the motion of the respondent Town of Chester Planning Board to dismiss the petition insofar as asserted against it for failure to join a necessary party is denied, and the matter is remitted to the Supreme Court, Orange County, for the joinder of Chill Factor Cooling, LLC, as a respondent in this proceeding, without prejudice to its right to assert any defenses or affirmative defenses, for the service of the notice of petition and petition by the petitioner upon Chill Factor Cooling, LLC, within 30 days after service upon the petitioner of a copy of this decision and order, for the service by Chill Factor Cooling, LLC, of an answer or motion directed to the petition, and for further proceedings thereafter.Chill Factor Cooling, LLC (hereinafter Chill Factor), is a necessary party to this proceeding (see CPLR 1001[a]; Matter of Cybul v. Village of Scarsdale, 17 AD3d 462, 463; Matter of Karmel v. White Plains Common Council, 284 AD2d 464, 465; Matter of Artrip v. Incorporated Vil. of Piermont, 267 AD2d 457, 457) subject to the jurisdiction of the court, and therefore, the Supreme Court should have “order[ed] [it] summoned,” rather than granting the motion of the Town of Chester Planning Board to dismiss the petition insofar as asserted against it (CPLR 1001[b]; see Windy Ridge Farm v. Assessor of Town of Shandaken, 11 NY3d 725, 727; Matter of Jenkins v. Astorino, 110 AD3d 882, 885; Matter of Mega Sound & Light, LLC v. Commissioner of Labor, 99 AD3d 800, 800; Matter of Lazzari v. Town of Eastchester, 62 AD3d 1002, 1002-1003; see also Matter of Greens at Half Hollow, LLC v. Suffolk County Dept. of Pub. Works, 147 AD3d 942, 943-944). Accordingly, we reverse the order and remit the matter to the Supreme Court, Orange County, for further proceedings (see Matter of Mega Sound & Light, LLC v. Commissioner of Labor, 99 AD3d at 800; Matter of Lazzari v. Town of Eastchester, 62 AD3d at 1002-1003).DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Cohen, Connolly and Christopher, JJ.MATTER of Board of Fire Commissioners of the Fairview Fire District, a District Corporation of the State of New York, ap, v. Town of Poughkeepsie Planning Board res — (Index No. 4353/14)In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Planning Board of the Town of Poughkeepsie dated August 21, 2014, issuing a negative declaration pursuant to the State Environmental Quality Review Act (ECL art 8), and granting a land contour permit to Page Park Associates, LLC, and to review a determination of the Town Board of the Town of Poughkeepsie dated October 1, 2014, granting the application of Page Park Associates, LLC, for a zoning overlay district to its property, and action for related declaratory relief, the petitioner/plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Dutchess County (Sproat, J.), dated April 17, 2015, as denied the petition and dismissed the proceeding/action.ORDERED that the judgment is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.Page Park Associates, LLC (hereinafter Page), proposed to construct a multifamily residential project in the Town of Poughkeepsie. The project, known as “Fairview Commons” (hereinafter the FC project), was located within the Fairview Fire District. After the Town of Poughkeepsie Planning Board (hereinafter the Planning Board) conducted its review pursuant to the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA), it issued a negative declaration on August 21, 2014. Thereafter, the Board of Commissioners of the Fairview Fire District, a District Corporation of the State of New York (hereinafter the petitioner), commenced this hybrid proceeding (Fairview I) challenging the Planning Board’s SEQRA determination, and action for related declaratory relief, against the Planning Board, the Town of Poughkeepsie Town Board (hereinafter Town Board), the Town of Poughkeepsie, a Municipal Corporation of the State of New York (hereinafter collectively the Town respondents), and Page (hereinafter collectively the respondents). In its petition/complaint, the petitioner asserted three causes of action. After the Town Board granted Page’s rezoning application on October 1, 2014, the petitioner amended the petition/complaint to add a fourth cause of action challenging the Town Board’s granting of Page’s application for a zoning overlay district to its property, since the Town Board relied upon the SEQRA determination.The Supreme Court, in the judgment appealed from, denied the petition and dismissed the proceeding/action, finding that the petitioner lacked standing, and that, in any event, the Planning Board had complied with SEQRA. The petitioner appeals.“To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” (Matter of Tuxedo Land Trust, Inc. v. Town Bd. of Town of Tuxedo, 112 AD3d 726, 727-728; see Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 772-774; Matter of Village of Chestnut Ridge v. Town of Ramapo, 45 AD3d 74, 89-90). To qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature (see Matter of County Oil Co., Inc. v. New York City Dept. of Envtl. Protection, 111 AD3d 718, 719; Matter of Valhalla Union Free School Dist. v. Board of Legislators of County of Westchester, 183 AD2d 771, 772). Although raising economic concerns does not foreclose standing to also raise environmental injury (see Matter of Blue Lawn v. County of Westchester, 293 AD2d 532, 534; Matter of Valhalla Union Free School Dist. v. Board of Legislators of County of Westchester, 183 AD2d at 772), economic injury is not by itself within the zone of interests which SEQRA seeks to protect (see Society of Plastics Indus. v. County of Suffolk, 77 NY2d at 777; Matter of Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 NY2d 428, 433; Matter of Valhalla Union Free School Dist. v. Board of Legislators of County of Westchester, 183 AD2d at 772). Here, the petitioner’s concerns that an increase in the number of residents in its district would result in an increase in the number of service calls made by it, which would result in a financial burden on it, were insufficient to establish its standing since such concerns are solely economic in nature (see Society of Plastics Indus. v. County of Suffolk, 77 NY2d at 777; Matter of Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 NY2d at 433; Matter of Valhalla Union Free School Dist. v. Board of Legislators of County of Westchester, 183 AD2d at 772).Moreover, the petitioner’s claim relating to traffic impacts was insufficient to establish standing, since the petitioner failed to demonstrate an environmental injury different from that suffered by the public at large (see Matter of Shelter Is. Assn. v. Zoning Bd. of Appeals of Town of Shelter Is., 57 AD3d 907, 909; Matter of Long Is. Pine Barrens Socy. v. Planning Bd. of Town of Brookhaven, 213 AD2d 484, 485-486).Nor did the petitioner’s status as a municipal agency confer standing upon it, since a “municipality is limited to asserting rights that are its own… and is not permitted to assert the collective individual rights of its residents” (Matter of Village of Chestnut Ridge v. Town of Ramapo, 45 AD3d at 91). In order to establish standing, in addition to showing that the alleged injury to the community character fell within the zone of interest protected by SEQRA, the petitioner had to show an environmental injury that was different from that of the public at large, and was not purely economic, which it failed to do (see Vinnie Montes Waste Sys. v. Town of Oyster Bay, 199 AD2d 493, 495).The petitioner also did not have standing in its representative capacity. “In order to establish standing to challenge a SEQRA determination, a municipality must demonstrate how its personal or property rights, either personally or in a representative capacity, will be directly and specifically affected apart from any damage suffered by the public at large” (Matter of Town of Amsterdam v. Amsterdam Indus. Dev. Agency, 95 AD3d 1539, 1541 [internal quotation marks omitted]). Here, the petitioner did not allege in its petition/complaint that it was acting in its representative capacity for its affected citizens, but merely alleged the economic costs to it as a result of the FC project and other pending or anticipated projects (see generally Matter of Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 NY2d at 433-434). Accordingly, the Supreme Court properly determined that the petitioner lacked standing, and dismissed the proceeding/action.Since this Court has previously denied motions by Page to dismiss the appeal as academic, its current contention that the plaintiff’s appeal should be dismissed as academic on the same ground as previously asserted is precluded by the doctrine of the law of the case (see Martin v. City of Cohoes, 37 NY2d 162, 165).In light of our determination, we need not reach the petitioner’s remaining contention.DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Cohen, Connolly and Christopher, JJ.MATTER of Board of Fire Commissioners of the Fairview Fire District, a District Corporation of the State of New York, ap, v. Town of Poughkeepsie Planning Board res — (Index No. 515/15)Jacobowitz & Gubits, LLP, Walden, NY (George Lithco of counsel), for appellant.Mackey Butts & Wise, LLP, Millbrook, NY (Joshua E. Mackey and Rebecca A. Valk of counsel), for respondents Town of Poughkeepsie Planning Board, Town of Poughkeepsie Town Board, and Town of Poughkeepsie, a Municipal Corporation of the State of New York.Teahan & Constantino LLP, Poughkeepsie, NY (Richard I. Cantor of counsel), for respondent Page Park Associates, LLC.In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Planning Board of the Town of Poughkeepsie dated January 15, 2015, which granted conditional site plan approval, and action for related declaratory relief, the petitioner/plaintiff appeals (1) from so much of an order and judgment (one paper) of the Supreme Court, Dutchess County (Sproat, J.), dated June 30, 2015, as granted those branches of the motion of Page Park Associates, LLC, and the separate motion of the Town of Poughkeepsie Planning Board, the Town Board of the Town of Poughkeepsie, and the Town of Poughkeepsie, a Municipal Corporation of the State of New York, which were pursuant to CPLR 7804(f) and 3211(a)(5) to dismiss the first, second, and fifth causes of action insofar as asserted against each of them, and dismissed those causes of action, and (2) , as limited by its brief, from so much of an order of the same court dated October 5, 2015, as (a), upon reargument, in effect, vacated the original determination in the order and judgment dated June 30, 2015, denying those branches of the motion of Page Park Associates, LLC, and the separate motion of the Town of Poughkeepsie Planning Board, Town of Poughkeepsie Town Board, and Town of Poughkeepsie, a Municipal Corporation of the State of New York, which were pursuant to CPLR 7804(f) and 3211(a)(5) to dismiss the third and fourth causes of action insofar as asserted against each of them, and thereupon granted those branches of the motions, and (b), upon renewal, in effect, vacated the original determination in the order and judgment dated June 30, 2015, denying that branch of the motion of the Town of Poughkeepsie Planning Board, Town of Poughkeepsie Town Board, and Town of Poughkeepsie, a Municipal Corporation of the State of New York, which was pursuant to CPLR 7804(f) and 3211(a)(5) to dismiss the third and fourth causes of action insofar as asserted against them, and thereupon granted that branch of their motion.ORDERED that the order and judgment is affirmed insofar as appealed from; and it is further,ORDERED that the order is modified, on the facts and in the exercise of discretion, (1) by deleting the provisions thereof, upon reargument, in effect, vacating the original determination in the order and judgment denying those branches of the motion of Page Park Associates, LLC, and the separate motion of the Town of Poughkeepsie Planning Board, Town of Poughkeepsie Town Board, and Town of Poughkeepsie, a Municipal Corporation of the State of New York, which were pursuant to CPLR 7804(f) and 3211(a)(5) to dismiss the third cause of action insofar as asserted against each of them, and thereupon granting those branches of the motions, and substituting therefor a provision, upon reargument, adhering to the original determination in the order and judgment denying those branches of the motions, and (2) by deleting the provision thereof, upon renewal, in effect, vacating the determination in the order and judgment denying that branch of the motion of the Town of Poughkeepsie Planning Board, Town of Poughkeepsie Town Board, and Town of Poughkeepsie, a Municipal Corporation of the State of New York, which was pursuant to CPLR 7804(f) and 3211(a)(5) to dismiss the third cause of action insofar as asserted against them, and substituting therefor a provision, upon renewal, adhering to the original determination in the order and judgment denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Dutchess County, for the service and filing of the respondents/defendants’ answers within 30 days after the date of this decision and order, and for further proceedings on the petition/complaint in accordance herewith; and it is further,ORDERED that one bill of costs is payable to the respondents appearing separately and filing separate briefs.The background facts in this case are set forth in our decision and order on a related appeal (Matter of Board of Fire Commrs. of Fairview Fire District v. Town of Poughkeepsie, __ AD3d __ [Appellate Division Docket No. 2015-07114; decided herewith]; hereinafter Fairview I).On January 15, 2015, the Town of Poughkeepsie Planning Board (hereinafter the Planning Board) granted conditional site plan approval to a project proposed by Page Park Associates, LLC (hereinafter Page), to construct a multifamily residential project in the Town of Poughkeepsie. The Board of Fire Commissioners of the Fairview Fire District, a District Corporation of the State of New York (hereinafter the petitioner), commenced this hybrid proceeding (hereinafter Fairview II) challenging the site plan approval, and action for related declaratory relief. In its petition/complaint, the petitioner asserted five causes of action. The Planning Board, the Town of Poughkeepsie Town Board (hereinafter the Town Board), the Town of Poughkeepsie, a Municipal Corporation of the State of New York (hereinafter collectively the Town respondents), and Page (hereinafter collectively the respondents) each filed pre-answer motions to dismiss the petition/complaint pursuant to CPLR 7804(f) and 3211(a)(5) insofar as asserted against each of them. The Supreme Court, in an order and judgment (one paper) dated June 30, 2015, granted those branches of the respondents’ separate motions which were to dismiss the first, second, and fifth causes of action insofar as asserted against each of them. The court denied the motions with respect to the third and fourth causes of action, finding that as alleged, those causes of action were facially sufficient, and directed the respondents to answer. The petitioner appeals from this order and judgment.Page moved for leave to reargue, and the Town respondents moved for leave to reargue and renew. With respect to reargument, the respondents contended that the Supreme Court overlooked that the petitioner lacked standing to maintain the third and fourth causes of action. With respect to that branch of the Town respondents’ motion which was for leave to renew, they submitted a payment in lieu of taxes (hereinafter PILOT) agreement, which was executed on May 28, 2015, and filed with the Dutchess County Clerk’s Office on June 17, 2015, and which, they argued, rendered the petitioner’s third and fourth causes of action academic. By order dated October 5, 2015, the court granted leave to reargue, and, upon reargument, directed dismissal of the third and fourth causes of action insofar as asserted against each of the respondents. The court also granted that branch of the Town respondents’ motion which was for leave to renew, and, upon renewal, directed dismissal of the third and fourth causes of action insofar as asserted against the Town respondents. The petitioner appeals from this order.The Supreme Court properly determined that the first, second, and fifth causes of action were barred by the doctrine of res judicata, to the extent that the petitioner contended that the site plan approval was based upon an invalid determination under the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA).The doctrine of res judicata provides that “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (O’Brien v. City of Syracuse, 54 NY2d 353, 357; see Dupps v. Betancourt, 121 AD3d 746, 747). The doctrine of res judicata bars a party from relitigating any claim which could have been or should have been litigated in a prior proceeding (see County of Nassau v. New York State Pub. Empl. Relations Bd., 151 AD2d 168, 185, affd 76 NY2d 579). Therefore, under the doctrine of res judicata, or claim preclusion, a valid final judgment will bar future actions between the same parties involving the same cause of action (see Matter of Reilly v. Reid, 45 NY2d 24, 27).Here, the main thrust of the petitioner’s first and second causes of action is that the Planning Board’s resolution granting site plan approval should be annulled because it was based upon the invalid SEQRA determination. Likewise, in the fifth cause of action, the petitioner contended that a land contour permit issued to Park Page was void since it relied upon the invalid SEQRA determination, and therefore, the project violated the density requirements of the Town Zoning Code. However, the Supreme Court, in Fairview I, already determined that the petitioner did not have standing to challenge the SEQRA determination, and that, in any event, the Planning Board took the required hard look, and therefore, its actions were not arbitrary and capricious. Since the court already determined that the petitioner did not have standing, and that the SEQRA determination was valid, the petitioner is barred from relitigating the validity of the SEQRA determination, and the causes of action alleging that the resolution granting site plan approval should be annulled due to the Planning Board’s reliance on the SEQRA determination were properly dismissed (see Matter of Reilly v. Reid, 45 NY2d at 27; Dupps v. Betancourt, 121 AD3d at 747).The portion of the first cause of action which alleged that the Planning Board should have reconsidered its negative declaration in light of the new information provided in the final report submitted by the petitioner’s expert, as well as other new evidence, is not barred by the doctrine of res judicata, since this claim was not decided in Fairview I. However, for the same reasons that the petitioner lacked standing in Fairview I, it also lacks standing to raise this claim in Fairview II, since the petitioner’s economic claims are insufficient to confer standing upon it (see Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 777; Matter of Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 NY2d 428, 433; Matter of Valhalla Union Free School Dist. v. Board of Legislators of County of Westchester, 183 AD2d 771, 772). Accordingly, the first cause of action was properly dismissed in its entirety.Upon reargument, the Supreme Court correctly determined that the petitioner lacked standing with respect to the fourth cause of action, but incorrectly determined that it lacked standing with respect to the third cause of action.In the fourth cause of action, the petitioner merely reiterates the same arguments it made with respect to its challenge to the negative declaration, i.e., that the Town respondents failed to consider the impacts the project would have on the petitioner’s ability to provide fire and emergency services. As such, the petitioner has failed to demonstrate that it will suffer an injury that is environmental and not solely economic in nature (see Matter of County Oil Co., Inc. v. New York City Dept. of Envtl. Protection, 111 AD3d 718, 719; Matter of Valhalla Union Free School Dist. v. Board of Legislators of County of Westchester, 183 AD2d at 772), or that the injury suffered by the petitioner would not be the same as that suffered by the general public (see Matter of Shelter Is. Assn. v. Zoning Bd. of Appeals of Town of Shelter Is., 57 AD3d 907, 909; Matter of Long Is. Pine Barrens Socy. v. Planning Bd. of Town of Brookhaven, 213 AD2d 484, 485-486).However, with respect to the third cause of action, the petitioner established that it is within the zone of interest sought to be protected by the Town Code provision that requires a PILOT agreement to be implemented to cover, among other things, the costs of fire and ambulance services (see Town Code of the Town of Poughkeepsie §210-21[H]), and the petitioner has alleged that it will be harmed by the failure of the agreement to cover its costs. As such, it has alleged an injury distinct from other members of the general public, and it has demonstrated an injury in fact sufficient to confer standing (see Society of Plastics Indus. v. County of Suffolk, 77 NY2d at 773-774; cf. Matter of Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 NY2d at 435; Matter of Quigley v. Town of Ulster, 66 AD3d 1295, 1296).The Supreme Court further erred in determining that the third cause of action was time-barred. The third cause of action challenged the action of the Planning Board in granting site plan approval on January 15, 2015, since a condition of the Planned Residential Overlay District (hereinafter PROD) designation had not been met, and was not, as found by the court, challenging the Town Board’s failure to require an executed PILOT agreement when adopting the PROD designation on October 1, 2014. As such, the petition filed on February 17, 2015, was timely filed (see Matter of Young v. Board of Trustees of Vil. of Blasdell, 89 NY2d 846, 849; Matter of Mule v. Hawthorne Cedar Knolls Union Free School Dist., 290 AD2d 698, 699).Moreover, the Supreme Court, upon renewal, erred in directing dismissal of the third cause of action since submission of the PILOT agreement would not have changed the prior determination (see CPLR 2221[e][2]; Lindbergh v. SHLO 54, LLC, 128 AD3d 642, 644-645; Matter of Jaronczyk v. Mangano, 121 AD3d 995, 997).The petitioner’s contention that the Supreme Court, upon renewal, improperly directed dismissal of the fourth cause of action, has been rendered academic in light of our determination.DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Cohen, Connolly and Christopher, JJ.PEOPLE, etc., res, v. Charles Dolson, ap — (Ind. No. 10-00667)John R. Lewis, Sleepy Hollow, NY, for appellant.David M. Hoovler, District Attorney, Middletown, NY (Andrew R. Kass of counsel; Frank R. Moy on the brief), for respondent.Appeal by the defendant from a judgment of the County Court, Orange County (Freehill, J.), rendered November 19, 2012, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the defendant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.MATTER of Adair Chloe Kimbrough, etc., res, v. Arkeen Jamel Murphy, ap — (Docket No. U-38888-04/13B)Austin I. Idehen, Jamaica, NY, for appellant.Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Megan E. K. Montcalm of counsel), for respondent.Eric T. Schneiderman, Attorney General, New York, NY (Scott A. Eisman of counsel), appearing pursuant Executive Law §71 (no brief filed).Appeals by the father (1) from an order of disposition of the Family Court, Kings County (Dean T. Kusakabe, J.), dated January 27, 2016, and (2) an order of that court, also dated January 27, 2016. The order of disposition, insofar as appealed from, in effect, confirmed an order of that court (Israella Mayeri, S.M.), dated March 4, 2014, made after a hearing, finding that the father had willfully violated a prior order of child support and, inter alia, directed that the father be committed to the County jail for a period of 6 months, suspended for a period of 12 months on the condition that the father pay the sum of $381per month. The order directed the entry of a money judgment in favor of the mother and against the father in the principal sum of $3,837 for child support arrears.ORDERED that the appeal from the order is dismissed as abandoned, without costs or disbursements; and it is further,ORDERED that the order of disposition is affirmed insofar as appealed from, without costs or disbursements.This proceeding sought a determination that the father willfully violated a child support order. After a hearing, a Support Magistrate found that the father had willfully violated the child support order, and recommended that he be incarcerated. The Family Court, in effect, confirmed the Support Magistrate’s finding of willfulness and directed that the father be committed to the County jail for a period of 6 months, suspended for a period of 12 months on the condition that he pay the sum of $381 per month, comprising his basic monthly child support obligation of $254 plus $127 toward arrears. Judgments for child support arrears previously had been entered against the father in amounts totaling $34,268.85, inclusive of interest. The Family Court directed the entry of a money judgment in favor of the mother and against the father in the principal sum of $3,837 for additional child support arrears. The father appeals from the Family Court’s order of disposition and order directing the entry of a money judgment.The father’s appeal from the order directing the entry of a money judgment must be dismissed as abandoned, as he does not seek reversal of any portion of that order in his brief (see        Matter of Pepe v. Pepe, 124 AD3d 898).The petitioner presented prima facie evidence of the father’s willful violation of the child support order with proof that the father failed to pay child support as ordered (see Family Ct Act §454[3][a]; Matter of Kretkowski v. Pasqua, 147 AD3d 836, 837). Account statements from the Special Collections Unit indicated that the father had paid only $2,695.71 toward his ongoing basic child support obligation since 2009, out of $14,478, and that he had not paid any support for the child since November 2012 (see Matter of Saintime v. Saint Surin, 40 AD3d 1103, 1104). The burden of going forward then shifted to the father to rebut the petitioner’s prima facie showing of a willful violation by offering some competent, credible evidence of his inability to pay (see Matter of Powers v. Powers, 86 NY2d 63, 69-70; Matter of Rafferty v. Ettinger, 150 AD3d 1016; Matter of Rojas-Paredes v. Lewis, 149 AD3d 844; Matter of Myles v. Turner, 137 AD3d 1038, 1039). The father failed to sustain this burden (see Matter of Myles v. Turner, 137 AD3d at 1039; cf. Matter of Morgan v. Spence, 139 AD3d 859, 861). In light of the father’s willful violation of the prior order of support, the Family Court’s determination committing the father to the County jail for a period of 6 months, suspended for 12 months on the condition that the father pay his continued basic support obligation of $254 per month plus $127 per month in arrears, was a proper exercise of discretion (see Family Ct Act §§454[1], [3][a]; 455[1]; Matter of Columbia County Support Collection Unit v. Risley, 27 NY3d 758; Matter of Sullivan v. Kilkenny, 141 AD3d 533, 535).The father’s arguments regarding the constitutionality of Family Court Act §§437 and 454(3)(a) are unpreserved for appellate review (see Matter of Coleman v. Thomas, 295 AD2d 508, 509). In any event, application of these statutes to the instant proceeding did not violate the equal protection clause or deprive the father of due process (see generally Mathews v. Eldridge, 424 US 319, 333; People v. Williams, 84 AD3d 1279).The father’s remaining contentions are either not properly before this Court or without merit.HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.MATTER of Christopher Basile, ap, v. Sherry Wiggs, res — (Docket No. F-7061-08)Richard A. Medina, New York, NY, for appellant.Appeal from an order of the Family Court, Westchester County (Hal B. Greenwald, J.), dated September 20, 2016. The order denied the father’s objections to an order of that court (Allen Hochberg, S.M.) dated March 21, 2016, which, after a hearing, dismissed his petition for a downward modification of his child support obligation.ORDERED that the order dated September 20, 2016, is affirmed, without costs or disbursements.The father and the mother were married and had one child who was born in August 1998. The parties separated and entered into a stipulation of settlement dated April 26, 2006, which provided that the father was to pay $2,150 per month in child support. The parties were divorced by judgment dated June 19, 2007, which incorporated but did not merge with the stipulation of settlement. In October 2014, the father moved for a downward modification of his child support obligation based upon, inter alia, constructive emancipation. A hearing was held before a Support Magistrate and, in an order dated March 21, 2016, the Support Magistrate dismissed the petition. The father filed objections and, in an order dated September 20, 2016, the Family Court denied the objections. The father appeals.“It is fundamental public policy in New York that parents are responsible for their children’s support until age 21″ (Matter of Jurgielewicz v. Johnston, 114 AD3d 945, 945 [internal quotation marks omitted]; see Family Ct Act §413; Matter of Barlow v. Barlow, 112 AD3d 817; Matter of Gold v. Fisher, 59 AD3d 443, 444). ”However, under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support. A child’s mere reluctance to see a parent is not abandonment” (Matter of Barlow v. Barlow, 112 AD3d at 818; see Matter of Grucci v. Villanti, 108 AD3d 626, 626-627; Schulman v. Schulman, 101 AD3d 1098, 1099). ”‘[W]here it is the parent who causes a breakdown in communication with his [or her] child, or has made no serious effort to contact the child and exercise his [or her] visitation rights, the child will not be deemed to have abandoned the parent’” (Matter of Glen L.S. v. Deborah A.S., 89 AD3d 856, 857, quoting Matter of Alice C. v. Bernard G.C., 193 AD2d 97, 109; see Matter of Barlow v. Barlow, 112 AD3d 817; Schulman v. Schulman, 101 AD3d at 1099). Such a breakdown in communication between a parent and a child may result from the parent’s “malfeasance, misconduct, neglect, or abuse” (Matter of Barlow v. Barlow, 112 AD3d at 818, citing Matter of Wiegert v. Wiegert, 267 AD2d 620). Where a child justifiably refuses to continue a relationship with a parent due to such parental conduct, the child will not be deemed to be self-emancipated (see Matter of Barlow v. Barlow, 112 AD3d 817; Labanowski v. Labanowski, 49 AD3d 1051). ”The burden of proof as to emancipation is on the party asserting it” (Schneider v. Schneider, 116 AD2d 714, 715; see Matter of Barlow v. Barlow, 112 AD3d 817; Schulman v. Schulman, 101 AD3d at 1099; Matter of Glen L.S. v. Deborah A.S., 89 AD3d at 857).Here, the Family Court correctly determined that the father failed to meet his burden of demonstrating that the child was constructively emancipated. The father did not show that a substantial change had taken place in his relationship with the child. The evidence presented at a hearing did not establish that the father consistently made a serious effort to maintain a relationship with the child during the relevant time period. Furthermore, he failed to show that his behavior was not a primary cause of the deterioration in his relationship with the child.The father’s remaining contentions are without merit.Accordingly, the Family Court properly denied the father’s objections to the order dismissing his petition for a downward modification of his child support obligation.HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Dillon, J.P.; Cohen, Connolly and Christopher, JJ.Karl Dibble, ap, v. Village of Sleepy Hollow, respondent def — (Index No. 61274/14)Nora Constance Marino, Great Neck, NY, for appellant.Goldberg Segalla, LLP, Garden City, NY (Brendan T. Fitzpatrick and Stephen P. Falvey of counsel), for respondent.In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Ruderman, J.), dated June 16, 2016, which granted the motion of the defendant Village of Sleepy Hollow for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is affirmed, with costs.On the afternoon of June 24, 2013, a manhole cover exploded underneath the plaintiff’s vehicle as he was driving on North Broadway (Route 9) in the Village of Sleepy Hollow. The explosion lifted the plaintiff’s vehicle off the ground and onto the opposite side of the roadway. The Village owned the manhole, including its cover, and sewer system beneath it. However, the Village abandoned use of the manhole prior to the accident, and the manhole allegedly was sealed over during a repaving project undertaken by the State. Following the accident, the plaintiff commenced this action to recover damages for personal injuries against several parties including the Village. The plaintiff alleges, inter alia, that the Village had negligently abandoned use of the manhole and allowed it to be sealed, thereby preventing the manhole from venting and permitting the build up of flammable gasses. After discovery, the Village moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it did not have prior written notice of the condition alleged, as required by section 276-1 of the Code of the Village of Sleepy Hollow. The Supreme Court granted the motion.Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect which comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition, or an exception to the written notice requirement applies (see Amabile v. City of Buffalo, 93 NY2d 471, 474; DeSalvio v. Suffolk County Water Auth., 127 AD3d 804, 805; Braver v. Village of Cedarhurst, 94 AD3d 933, 934). ”Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it” (Miller v. Village of E. Hampton, 98 AD3d 1007, 1008; see Amabile v. City of Buffalo, 93 NY2d at 474).Here, the Village established its prima facie entitlement to judgment as a matter of law by submitting evidence, including an affidavit from the Village Clerk, demonstrating that it did not receive prior written notice of the condition alleged. The Village further established, prima facie, that it did not create the alleged condition through an affirmative act of negligence, which was the only exception alleged in the plaintiff’s pleadings (see Wald v. City of New York, 115 AD3d 939, 940-941). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Village had prior written notice or whether an exception to that requirement applied (see Minier v. City of New York, 106 AD3d 1060, 1061). Accordingly, the Supreme Court properly granted the Village’s motion for summary judgment dismissing the complaint insofar as asserted against it.DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.By Austin, J.P.; Roman, Sgroi and Brathwaite Nelson, JJ.Matter of John E. Lindsay, ap, v. Sheree N. Lindsay-Lewis, res — (Docket No. F-7152-15)Appeal by the father from an order of the Family Court, Nassau County (Felice J. Muraca, J.), dated November 14, 2016. The order denied the father’s objections to an order of that court (Adam E. Small, S.M.), dated April 28, 2016, which, after a fact-finding hearing, dismissed, without prejudice, his petition for a downward modification of his child support obligation.ORDERED that the order dated November 14, 2016, is affirmed, with costs.A “party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification” (Matter of Baumgardner v. Baumgardner, 126 AD3d 895, 896-897; see Matter of Rubenstein v. Rubenstein, 114 AD3d 798, 798; Matter of Suyunov v. Tarashchansky, 98 AD3d 744, 745). ”A parent’s loss of employment may constitute a substantial change in circumstances” (Matter of Rubenstein v. Rubenstein, 114 AD3d at 798; see Matter of Suyunov v. Tarashchansky, 98 AD3d at 745; Matter of Ceballos v. Castillo, 85 AD3d 1161, 1162). A parent seeking downward modification of a child support obligation must submit competent proof that “the termination occurred through no fault of the parent and the parent has diligently sought re-employment commensurate with his or her earning capacity” (Matter of Riendeau v. Riendeau, 95 AD3d 891, 892; see Matter of Rubenstein v. Rubenstein, 114 AD3d at 798; Ashmore v. Ashmore, 114 AD3d 712, 713; Matter of Nenninger v. Tonnessen, 113 AD3d 619; Matter of Suyunov v. Tarashchansky, 98 AD3d at 745; Matter of Ceballos v. Castillo, 85 AD3d at 1162).Here, the record supports the Support Magistrate’s determination that the father failed to demonstrate a substantial change in circumstances warranting a downward modification of his child support obligation. The evidence submitted relating to the father’s unemployment showed that he voluntarily left his job to follow his girlfriend to Florida. Thus, the father failed to establish that the termination of his employment did not occur through his own fault (see Matter of Rosalind EE. v. William EE., 4 AD3d 629; Alfano v. Alfano, 151 AD2d 530; see also Matter of Westwater v. Donnelly, 204 AD2d 467). Furthermore, the father failed to adduce sufficient evidence to satisfy his burden of establishing that he diligently sought re-employment commensurate with his qualifications and experience (see Matter of Rolko v. Intini, 128 AD3d 705; Matter of Riendeau v. Riendeau, 95 AD3d 891; Matter of Peterson v. Peterson, 75 AD3d 512; Matter of Gedacht v. Agulnek, 67 AD3d 1013).The father’s remaining contention is without merit.Accordingly, the Family Court properly denied the father’s objections to the Support Magistrate’s order finding that he was not entitled to a downward modification of his child support obligation.AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.Henry Herrmann, ap, v. Salvatore Giovanniello res — (Index No. 602796/13)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered February 23, 2017, which granted the defendants’ motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.The plaintiff was struck by a motor vehicle driven by the defendant Salvatore Giovanniello as the plaintiff was crossing Merrick Road in Freeport outside of a crosswalk or intersection. Giovanniello testified, at his deposition, that the plaintiff was standing in a westbound traffic lane when Giovanniello first saw him, and that the plaintiff then stepped back, across the double-yellow line, into the eastbound traffic lane in which Giovanniello was traveling. Giovanniello applied the brakes with heavy pressure and swerved to the right slightly, but the front driver’s side of his vehicle struck the plaintiff. The plaintiff commenced this action against the defendants to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff’s conduct was the sole proximate cause of the accident (see Boereau v. Scott, 140 AD3d 687, 688; see also Braxton v. Jennings, 63 AD3d 772; DiCocco v. Center for Dev. Disabilities, 264 AD2d 803). The plaintiff failed to raise a triable issue of fact in opposition. Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Eng, P.J.; Dillon, Miller, Hinds-Radix and Iannacci, JJ.PEOPLE, etc., res, v. Rodger Perry, ap — (Ind. No. 1254/15)Paul Skip Laisure, New York, NY (David P. Greenberg of counsel), for appellant.Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Joyce Adolfsen of counsel; Alexander Brennan on the memorandum), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Foley, J.), rendered February 2, 2016, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Sanders, 25 NY3d 337; People v. Bradshaw, 18 NY3d 257, 264-267; People v. Lopez, 6 NY3d 248, 255). The defendant’s contention regarding the order of protection issued at the time of sentencing survives his valid waiver of the right to appeal (see People v. Gibson-Parish, 153 AD3d 1273; People v. Forte, 147 AD3d 973; People v. Kumar, 127 AD3d 882). However, the defendant’s contention regarding the order of protection is unpreserved for appellate review, since he did not raise the issue at sentencing or move to amend the order of protection on the ground now raised (see People v. Nieves, 2 NY3d 310; People v. Black, 144 AD3d 935), and we decline to review it in the exercise of our interest of justice jurisdiction.ENG, P.J., DILLON, MILLER, HINDS-RADIX and IANNACCI, JJ., concur.By Leventhal, J.P.; Hall, Austin and Miller, JJ.PEOPLE, etc., res, v. Patrick Bowie, ap — (Ind. No. 07-00040)Patrick Bowie, Stormville, NY, appellant pro se.David M. Hoovler, District Attorney, Middletown, NY (Elizabeth L. Schulz of counsel), for respondent.Diane E. Selker, Peekskill, NY, former appellate counsel.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated April 5, 2011 (People v. Bowie, 83 AD3d 729), affirming a judgment of the County Court, Orange County, rendered October 4, 2007.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).LEVENTHAL, J.P., HALL, AUSTIN and MILLER, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.MATTER of Peter Muller, ap, v. Lauren Muller, res — (Docket No. F-3645-14/14A)Peter Muller, Stony Point, NY, appellant pro se.Appeal by the father from an order of the Family Court, Rockland County (Rachel E. Tanguay-McGuane, J.), entered July 14, 2016. The order denied the father’s objections to an order of that court (Latoya Stephens, S.M.) dated April 18, 2016, which, after a hearing, denied his petition for a downward modification of his child support obligation.ORDERED that the order entered July 14, 2016, is affirmed, without costs or disbursements.In December 2014, the father filed a petition seeking a downward modification of his child support obligation. He alleged that he was permanently disabled and unable to work in any capacity, and that his only sources of income were social security disability benefits and a small stipend that he received for serving on a town planning board. Following a hearing, in an order dated April 18, 2016, the Support Magistrate denied the father’s petition. Thereafter, in an order entered July 14, 2016, the Family Court denied the father’s objections to the Support Magistrate’s order. The father appeals from the order entered July 14, 2016.In order for a party to be entitled to a modification of a child support order, that party must show “a substantial change in circumstances” since the entry of the order (Family Ct Act §451[3][a]; see Matter of Pepe v. Pepe, 128 AD3d 831, 834). Although a petition for a downward modification of child support may be granted based on a parent’s loss of employment due to an injury or illness, it may be denied if the parent still has the ability to provide support through some other type of employment (see Matter of Karagiannis v. Karagiannis, 73 AD3d 1064, 1065). A party seeking modification on the basis of loss of employment due to illness must show that he or she has made a good faith effort to obtain other employment commensurate with his or her abilities or qualifications (see id. at 1065). On appeal, credibility determinations of the hearing court are entitled to great weight and will not be disturbed if supported by the record (see id.).Here, the record supports the Support Magistrate’s determination that the father failed to establish a substantial change in circumstances since the entry of the prior child support order. The father failed to present any competent medical evidence in support of his testimony that he is permanently and completely disabled and unable to obtain gainful employment to meet his child support obligation (see Matter of Hackett v. Hackett, 154 AD3d 751; Matter of Cato v. Cato, 134 AD3d 821, 822).The father’s remaining contentions are without merit or not properly before this Court.Accoringly, the Family Court properly denied the father’s objections to the Support Magistrate’s order denying his petition for a downward modification of his child support obligation.HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Rivera, J.P.; Roman, Lasalle and Barros, JJ.Queens Branch of the Bhuvaneshwar Mandir, Inc., et al., res, v. Jagraine Sherman ap — (Index No. 1429/15)John F. Langan, P.C., Long Island City, NY, for appellants.Eugene F. Levy, Forest Hills, NY, for respondents.Appeal from an order of the Supreme Court, Queens County (Leonard Livote, J.), dated July 28, 2015. The order, insofar as appealed from, granted that branch of the plaintiffs’ motion which was to confirm the results of an election held on May 31, 2015, in which their slate of candidates were elected as the members of the Board of Trustees of the plaintiff Queens Branch of the Bhuvaneshwar Mandir, Inc., and denied that branch of the defendants’ cross motion which was pursuant to CPLR 3001 for a judgment declaring that its slate of candidates won the election.ORDERED that the order is affirmed insofar as appealed from, with costs.In 2015, the plaintiffs commenced this action for injuctive relief after a dispute arose regarding the control of the plaintiff Queens Branch of the Bhuvaneshwar Mandir, Inc. (hereinafter the Mandir), a religious corporation. Following commencement of the action, the parties agreed to resolve the issue of control by holding an election for the Mandir’s Board of Trustees. After the election was conducted, the plaintiffs moved, inter alia, to confirm the results of the election, in which their slate of candidates were elected as the Mandir’s Board of Trustees. The defendants cross-moved, inter alia, pursuant to CPLR 3001 for a judgment declaring that their slate of candidates prevailed in the election on the ground that a substantial majority of individuals who cast votes in favor of the plaintiffs’ slate of candidates were ineligible to vote in the election. The Supreme Court granted the plaintiffs’ motion and denied the defendants’ cross motion.“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs” (Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 9 NY3d 282, 286; see First Presbyt. Church of Schenectady v. United Presybt. Church in U.S. of Am., 62 NY2d 110, 116). However, “[c]ivil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution” (Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 9 NY3d at 286). In applying neutral principles of law, “courts may rely upon internal documents, such as a congregation’s bylaws, but only if those documents do not require interpretation of ecclesiastical doctrine” (id.; see Matter of Ming Tung v. China Buddhist Assn., 124 AD3d 13, 20, affd 26 NY3d 1152).Here, resolution of the instant dispute, including determining whether any votes were cast by individuals who were not eligible to vote in the election, does not “require[ ] intrusion into constitutionally protected ecclesiastical matters” (Matter of Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 9 NY3d at 288). Rather, this question may be resolved based upon neutral principles of law and reference to the secular provisions of the Mandir’s internal documents (see Schwimmer v. Welz, 56 AD3d 541, 543; Esformes v. Brinn, 52 AD3d 459, 462; Malankara Archdiocese of Syrian Orthodox Church in N. Am. v. Thomas, 33 AD3d 887, 888). The defendants failed to establish that any of the individuals who voted in favor of the plaintiffs’ slate of candidates were ineligible to vote in the election. Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was to confirm the results of the election and denied that branch of the defendants’ cross motion which was pursuant to CPLR 3001 for a judgment declaring that their slate of candidates won the election.RIVERA, J.P., ROMAN, LASALLE and BARROS, JJ., concur.By Dillon, J.P.; Cohen, Connolly and Christopher, JJ.Wellington Farms of Massachusetts, Inc., res, v. Capital Area Food Bank, ap — (Index No. 2510/13)DLA Piper LLP (US), Albany, NY (Jeffrey D. Kuhn of counsel), for appellant.Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, NY (Kyle C. Van De Water of counsel), for respondent.In an action, inter alia, to recover damages for breach of contract, the defendant appeals from (1) an order of the Supreme Court, Dutchess County (Rosa, J.), dated June 22, 2015, which granted the plaintiff’s motion for summary judgment on the cause of action alleging breach of contract and denied the defendant’s motion for summary judgment dismissing that cause of action, and (2) a judgment of the same court dated December 1, 2015, which, upon the order, is in favor of the plaintiff and against it in the total sum of $78,942.95.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 order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).This action arises from a dispute between the plaintiff and the defendant as to the existence of an enforceable contract for the sale of a truckload of frozen ground turkey. In March and April 2012, the plaintiff sold truckloads of frozen ground turkey to the defendant. In May 2012, the plaintiff’s president, George Oppenheimer, contacted a representative of the defendant, Mark Kiriakou, via email regarding an additional shipment of frozen ground turkey. Kiriakou eventually provided Oppenheimer with a purchase order number and delivery location for the order. In the course of the email communications with respect to this order, Oppenheimer provided Kiriakou with multiple invoices containing different prices. When the turkey was in transit to be delivered, the defendant’s then-CEO contacted Oppenheimer and stated that the defendant could not pay for the order and therefore could not accept delivery. Eventually, the turkey was placed in a storage facility.The plaintiff commenced this action alleging, inter alia, that the defendant breached a contract for the sale of the turkey. The plaintiff moved for summary judgment on the breach of contract cause of action, and the defendant moved for summary judgment dismissing that cause of action. The Supreme Court granted the plaintiff’s motion and denied the defendant’s motion. A judgment was entered upon the order in favor of the plaintiff and against the defendant, and the defendant appeals.“A contract for the sale of goods for the price of $500 or more is not enforceable ‘unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker’” (Bazak Intl. Corp. v. Mast Indus., 73 NY2d 113, 119, quoting UCC 2-201[1]). ”Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received” (UCC 2-201[2]).Here, contrary to the defendant’s contentions, the Supreme Court properly found that the writings submitted by the plaintiff satisfied UCC 2-201(2) (see        Bazak Intl. Corp. v. Mast Indus., 73 NY2d at 123; Crabtree v. Elizabeth Arden Sales Corp., 305 NY 48, 55; Civale Corp. v. Colonial Aluminum Sales, 165 AD2d 805, 805; cf. Henry L. Fox Co. v. Kaufman Org., 74 NY2d 136, 142-143).Moreover, the Supreme Court properly determined that the plaintiff made a prima facie showing that the parties entered into an enforceable agreement (see UCC 2-204, 2-305; Bay Refrig. Corp. v. All Well Supplies, 213 AD2d 439, 439; Judal Indus. v. Welsbach Elec. Corp., 138 AD2d 573, 574-575). The plaintiff established that the parties reached an agreement for the purchase of a truckload of frozen ground turkey to be delivered on June 27, 2012, at the defendant’s specified delivery location. Although the invoices submitted by the plaintiff contained varying prices, there was no “dispute over essential terms [that] manifest[ed] a lack of intention to contract” (Judal Indus. v. Welsbach Elec. Corp., 138 AD2d at 574; see Kleinschmidt Div. of SCM Corp. v. Futuronics Corp., 41 NY2d 972). In opposition, the defendant failed to raise a triable issue of fact.Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the cause of action alleging breach of contract and denied the defendant’s motion for summary judgment dismissing that cause of action.DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.By Eng, P.J.; Chambers, Cohen, Roman and Hinds-Radix, JJ.PEOPLE, etc., res, v. Matthew Thomas, ap — (S.C.I. Nos. 305/14, 259/15)Thomas N. N. Angell, Poughkeepsie, NY (Steven Levine of counsel), for appellant.William V. Grady, District Attorney, Poughkeepsie, NY (Bridget Rahilly Steller of counsel), for respondent.Appeals by the defendant, as limited by his motion, from two sentences of the County Court, Dutchess County (Forman, J.), both imposed January 19, 2016, upon his pleas of guilty, on the ground that the sentences were excessive.ORDERED that the sentences are affirmed.The sentences imposed were not excessive (see People v. Suitte, 90 AD2d 80).ENG, P.J., CHAMBERS, COHEN, ROMAN and HINDS-RADIX, JJ., concur.By Mastro, J.P.; Chambers, Lasalle and Brathwaite Nelson, JJ.MATTER of William Jacobs, ap, v. Charles Cartalemi res — (Index No. 62551/15)Appeal from an order and judgment (one paper) of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated April 21, 2016. The order and judgment granted that branch of the motion of Charles Cartalemi and Westchester Industrial Complex, LLC, which was, in effect, pursuant to CPLR 3211(a) to dismiss the action, and, in effect, dismissed the action.ORDERED that the order and judgment is modified, on the law, (1) by deleting the provision thereof, in effect, dismissing the action, (2) by deleting the provision thereof granting that branch of the motion of Charles Cartalemi and Westchester Industrial Complex, LLC, which was, in effect, pursuant to CPLR 3211(a) to dismiss the action, and substituting therefor a provision denying that branch of the motion, and (3) by adding thereto a provision declaring that William Jacobs has withdrawn as a member of Westchester Industrial Complex, LLC, effective December 1, 2015, and that in order to receive the value of his membership interest, he is obligated to follow the procedures set forth in the operating agreement of Westchester Industrial Complex, LLC; as so modified, the order and judgment is affirmed, without costs or disbursements.In June 1995, William Jacobs and Charles Cartalemi entered into an operating agreement for the formation of a limited liability company, Westchester Industrial Complex, LLC (hereinafter WIC). On March 26, 2015, Jacobs served Cartalemi and WIC with a notice of withdrawal (hereinafter the notice), which indicated that he was exercising his right to withdraw as a member of WIC, in accordance with Limited Liability Company Law former §606. At that time, Jacobs allegedly owned a 20 percent membership interest in WIC, and Cartalemi owned the remaining 80 percent interest. The notice asked Cartalemi to consent to Jacobs’s withdrawal, and to make arrangements for the payment of the value of his membership interest in accordance with Limited Liability Company Law §509. The notice stated that, if Cartalemi did not consent to Jacobs’s withdrawal, the notice would serve as formal notice that his withdrawal would be automatically effective on December 1, 2015. Cartalemi did not consent to Jacobs’s withdrawal.On July 30, 2015, Jacobs commenced this action, denominated a “special proceeding,” asserting two causes of action. The first sought a judgment declaring that, pursuant to Limited Liability Company Law former §606, Jacobs was entitled to withdraw as a member of WIC, effective December 1, 2015. The second cause of action sought a declaration that, upon his withdrawal from WIC, Jacobs was entitled to be paid, within a reasonable time, the fair value of his membership interest in accordance with Limited Liability Company Law §509, together with interest at nine percent per annum, without the application of any discount factor. By notice of motion dated December 18, 2015, WIC and Cartalemi moved, in effect, to dismiss the action pursuant to CPLR 3211(a), or, alternatively, to convert the “special proceeding” to an action pursuant to CPLR 103. They argued that Jacobs withdrew from WIC effective December 1, 2015, and that therefore, his first cause of action should be dismissed as academic. As to the second cause of action, they argued that Jacobs was not entitled to a judgment declaring that he was entitled to be paid the fair value of his membership interest pursuant to Limited Liability Company Law §509, because WIC’s operating agreement provided otherwise and Jacobs was obligated to follow the procedures in the operating agreement. In an order and judgment dated April 21, 2016, the Supreme Court granted that branch of the motion which was, in effect, to dismiss the action, and, in effect, dismissed the action. Jacobs appeals.“The supreme court may render a declaratory judgment… as to the rights and other legal relations of the parties to a justiciable controversy” (CPLR 3001). ”[T]he demand for relief in the complaint shall specify the rights and other legal relations on which a declaration is requested” (CPLR 3017[b]). Generally, a motion to dismiss the complaint in an action for a declaratory judgment “presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration” (Staver Co. v. Skrobisch, 144 AD2d 449, 450; see Rockland Light & Power Co. v. City of New York, 289 NY 45, 51; North Oyster Bay Baymen’s Assn. v. Town of Oyster Bay, 130 AD3d 885, 890; Bregman v. East Ramapo Cent. Sch. Dist., 122 AD3d 656, 657). Further, “a complaint praying for judgment declaring the ‘rights and legal relations’ of the parties should not be dismissed as insufficient merely because the facts alleged in the complaint show that the plaintiff is not entitled to a declaration of rights as the plaintiff claims them to be. The court should, in proper case[s], retain jurisdiction of the action and should exercise its power to declare the rights and legal relations of the parties whatever they may be” (Rockland Light & Power Co. v. City of New York, 289 NY at 51; see Cahill v. Regan, 5 NY2d 292, 298). ”Accordingly, where a cause of action is sufficient to invoke the court’s power to ‘render a declaratory judgment… as to the rights and other legal relations of the parties to a justiciable controversy’ (CPLR 3001; see CPLR 3017[b]), a motion to dismiss that cause of action should be denied” (Matter of Tilcon N.Y., Inc. v. Town of Poughkeepsie, 87 AD3d 1148, 1150; see North Oyster Bay Baymen’s Assn. v. Town of Oyster Bay, 130 AD3d at 890; Bregman v. East Ramapo Cent. Sch. Dist., 122 AD3d at 657; Minovici v. Belkin BV, 109 AD3d 520, 524; DiGiorgio v. 1109-1113 Manhattan Ave. Partners, LLC, 102 AD3d 725, 728).Furthermore, upon a motion to dismiss for failure to state a cause of action, where “the material allegations of the complaint are constructively admitted [and] there is no issue of fact,” a court may reach the merits of a properly pleaded cause of action for a declaratory judgment (German Masonic Temple Assn. v. City of New York, 279 NY 452, 457; see St. Lawrence Univ. v. Trustee of Theol. School of St. Lawrence Univ., 20 NY2d 317, 325; Lanza v. Wagner, 11 NY2d 317, 334; Hoffman v. City of Syracuse, 2 NY2d 484, 487; Rockland Light & Power Co. v. City of New York, 289 NY at 53; North Oyster Bay Baymen’s Assn. v. Town of Oyster Bay, 130 AD3d at 890). ”Under such circumstances, the motion to dismiss for failure to state a cause of action should be taken as a motion for a declaration in the defendant’s favor and treated accordingly” (Matter of Tilcon N.Y., Inc. v. Town of Poughkeepsie, 87 AD3d at 1150 [internal quotations omitted]; see North Oyster Bay Baymen’s Assn. v. Town of Oyster Bay, 130 AD3d at 890; Minovici v. Belkin BV, 109 AD3d at 524; DiGiorgio v. 1109-1113 Manhattan Ave. Partners, LLC, 102 AD3d at 728).Here, the parties are in agreement that the issue of withdrawal is governed by Limited Liability Company Law former §606 (see Limited Liability Company Law §606[b]). As relevant, Limited Liability Company Law former §606 provided that, unless otherwise provided in the operating agreement, a member may withdraw as a member of a limited liability company with the vote or written consent of at least “two-thirds in interest” of the remaining members. If such consent is not given, unless otherwise provided for or prohibited by the operating agreement, the member may withdraw “upon not less than six months’ prior written notice to the limited liability company” (Limited Liability Company Law former §606). The uncontested facts set forth in the pleadings, to which were appended WIC’s operating agreement, Jacobs’s notice of withdrawal, and the refusal to consent to the withdrawal, establish that Jacobs’s withdrawal as a member of WIC was effective December 1, 2015.However, contrary to Jacobs’s contention, the pleadings, and the exhibits appended thereto, also established that the issue of valuation of his membership interest upon withdrawal is not governed by Limited Liability Company Law §509, because WIC’s operating agreement includes a controlling provision. Limited Liability Company Law §509 provides that, upon withdrawal as a member of a limited liability company, any withdrawing member is entitled to receive any distribution to which he or she is entitled under the operating agreement and, “if not otherwise provided in the operating agreement, he or she is entitled to receive, within a reasonable time after withdrawal, the fair value of his or her membership interest in the limited liability company as of the date of withdrawal” (emphasis added).WIC’s operating agreement includes an article setting forth the procedures to be followed when a member “desires to sell his, her or its Membership Interest.” Where a “selling member” has received a prior offer from a bona fide purchaser for value, the selling member is obligated to offer the membership interest first to the other WIC members upon the terms and conditions offered to the third party. Where there is no prior offer to purchase the membership interest, the operating agreement directs that the selling member must make an offer of sale to the other WIC members, who may accept or reject the same, or make a counteroffer. In the event of a rejection of the offer and a rejection of the counteroffer, if any, the selling member then becomes free to offer the membership interest to any other party, provided that the terms are no less favorable to the selling member than the terms offered to WIC’s members. It is undisputed that Jacobs has not engaged in this procedure.Jacobs’s contention that these provisions of the operating agreement control only the “sale” of a membership interest and not the valuation of a membership interest upon a member’s withdrawal from WIC is unavailing. ”The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent” (Greenfield v. Philles Records, 98 NY2d 562, 569; see Marin v. Constitution Realty, LLC, 28 NY3d 666, 673). ”The best evidence of what parties to a written agreement intend is what they say in their writing” (Slamow v. Del Col, 79 NY2d 1016, 1018; see Greenfield v. Philles Records, 98 NY2d at 569). ”[A] contract should be ‘read as a whole;… and if possible it will be so interpreted as to give effect to its general purpose’” (Beal Sav. Bank v. Sommer, 8 NY3d 318, 324-325, quoting Matter of Westmoreland Coal Co. v. Entech, Inc., 100 NY2d 352, 358; see Marin v. Constitution Realty, LLC, 28 NY3d at 673). ”[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield v. Philles Records, 98 NY2d at 569; see Marin v. Constitution Realty, LLC, 28 NY3d at 673).Here, the operating agreement is unambiguous on its face. It establishes procedures to be used where a member has not received an offer of sale, but nonetheless wishes to relinquish her, his, or its membership interest and to be compensated for the same. Thus, regardless of whether the “selling member” has withdrawn as a member of WIC, the operating agreement provides the manner in which the member might receive value for the membership interest (cf. Bellwether Community Credit Union v. CUSO Development Co., LLC, 566 Fed Appx 398 [6th Cir]). Accordingly, the Supreme Court properly determined that Jacobs was not entitled to a judgment declaring that, upon his withdrawal from WIC, he is entitled to be paid, within a reasonable time, the fair value of his membership interest in accordance with Limited Liability Company Law §509, together with interest at nine percent per annum, without the application of any discount factor.However, because this is an action for declaratory relief, instead of dismissing the action on the ground that Jacobs was not entitled to the relief he sought, “the proper procedure for the court is to deny the motion to dismiss the complaint (thereby retaining jurisdiction of the controversy) and then to declare the rights of the parties, whatever they may be” (St. Lawrence Univ. v. Trustees of Theol. School of St. Lawrence Univ., 20 NY2d at 325; see Cahill v. Regan, 5 NY2d at 298; Rockland Light & Power Co. v. City of New York, 289 NY at 51). Accordingly, the Supreme Court should have denied that branch of the motion which was, in effect, to dismiss the action, and declared that Jacobs has withdrawn as a member of WIC, effective December 1, 2015, and that in order to receive the value of his membership interest, he is obligated to follow the procedures set forth in WIC’s operating agreement.Jacobs’s remaining contentions are without merit.MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Chambers, Lasalle and Brathwaite Nelson, JJ.William Jacobs, individually and derivatively on behalf of Westchester Industrial Complex, LLC, appellant-res, v. Westchester Industrial Complex, LLC respondents-ap — (Index No. 70359/14)Appeal and cross appeal from an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated July 6, 2016. The order, insofar as appealed from, granted those branches of the defendants’ motion which were for summary judgment dismissing the first through third causes of action, and pursuant to CPLR 3211(a)(4) to dismiss the fourth and fifth causes of action. The order, insofar as cross-appeal from, denied that branch of the defendants’ motion which was for summary judgment dismissing the sixth cause of action. Application by the defendants for leave to withdraw their cross appeal.ORDERED that the application for leave to withdraw the cross appeal is granted; and it is further,ORDERED that the order is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the defendants.The plaintiff, Williams Jacobs, and the defendant Charles Cartalemi were the members of the defendant Westchester Industrial Complex, LLC (hereinafter WIC). At the time of the commencement of this action, the plaintiff held a 20 percent membership interest in WIC and Cartalemi held the remaining 80 percent interest. The plaintiff commenced this action on November 26, 2014, against WIC, Charles Cartalemi, Joan Cartalemi, who was Charles Cartalemi’s wife, and DAN-NIC-CAR, LLC (hereinafter DNC), a limited liability company owned by Charles Cartalemi. The first cause of action sought a judgment pursuant to RPAPL article 15 declaring that a mortgage encumbering certain real property owned by WIC had been satisfied by a settlement agreement in a separate foreclosure action. The second cause of action was to recover damages for breach of fiduciary duty and conversion, and was based on an allegation that Charles Cartalemi wrongfully caused WIC to pay DNC interest payments at the rate of 11.75 percent on a “fictitious and non-existent principal indebtedness of” the sum of $1,640,000 related to the assignment of the aforementioned mortgage to DNC, damaging WIC and the plaintiff in the sum of $500,000.The third cause of action also sought to recover damages for breach of fiduciary duty, and was based on an allegation that Charles Cartalemi had hired Joan Cartalemi and his daughter as employees of WIC without the plaintiff’s knowledge or consent, and that their three salaries combined exceeded 20 percent of WIC’s annual gross revenue. The plaintiff further alleged that on March 31, 2013, Charles Cartalemi and Joan Cartalemi loaned WIC the sum of $360,000 to repay a note outstanding to the plaintiff, and that Charles Cartalemi caused or allowed WIC to make interest payments on the note that were not commercially reasonable. The plaintiff alleged that Charles Cartalemi “willfully orchestrated a scheme so as to deliberately cause WIC to pay unnecessary wages and a higher interest rate than those WIC[ ] was obligated to pay or could have paid on a commercially reasonable basis.” The fourth cause of action sought an accounting, and the fifth cause of action sought the appointment of a receiver for WIC. The sixth cause of action is not at issue on this appeal.While this action was pending, the plaintiff withdrew as a member of WIC, effective December 1, 2015 (see Matter of Jacobs v. Cartalemi, __ AD3d __ [decided herewith]). By notice of motion dated February 5, 2016, the defendants moved for summary judgment dismissing the complaint, contending that, upon his withdrawal from WIC, the plaintiff no longer had standing to maintain any of his causes of action, which were all derivative in nature, or, alternatively, inter alia, to dismiss the fourth and fifth causes of action pursuant to CPLR 3211(a)(4), on the ground that these causes of action were duplicative of causes of action in a related action pending in the Supreme Court. In an order dated July 6, 2016, the court found that, upon his withdrawal from WIC, the plaintiff no longer had standing to maintain any derivative causes of action. Therefore, it granted those branches of the defendants’ motion which were for summary judgment dismissing the first, second, and third causes of action. The court also granted those branches of the defendants’ motion which were to dismiss the fourth and fifth causes of action as duplicative of causes of action asserted in the related action. The plaintiff appeals.The Supreme Court properly concluded that, upon the plaintiff’s withdrawal from WIC, he no longer possessed standing to maintain any derivative cause of action (see Jacobs v. Cartalemi, __ AD3d __ [decided herewith]). Thus, the court correctly granted those branches of the defendants’ motion which were for summary judgment dismissing the first, second, and third causes of action, as those causes of action alleged wrongs that were committed against WIC and not the plaintiff individually (see Zuckerbrod v. 355 Co., LLC, 113 AD3d 675, 676; Mizrahi v. Cohen, 104 AD3d 917, 919; see also Tzolis v. Wolff, 10 NY3d 100; Out of Box Promotions, LLC v. Koschitzki, 55 AD3d 575, 577).The Supreme Court did not improvidently exercise its discretion in granting those branches of the defendants’ motion which were to dismiss the fourth and fifth causes of action pursuant to CPLR 3211(a)(4), as those causes of action were duplicative of causes of action brought against the same defendants in the related action (see CPLR 3211[a][4]; Whitney v. Whitney, 57 NY2d 731, 732; Dec v. BFM Realty, LLC, 153 AD3d 497).The plaintiff’s remaining contentions are without merit.MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Chambers, Lasalle and Brathwaite Nelson, JJ.William Jacobs, individually and derivatively on behalf of Westchester Industrial Complex, LLC, appellant-res, v. Charles Cartalemi respondents-ap — (Index No. 65701/12)Appeal and cross appeal from an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated June 27, 2016. The order, insofar as appealed from, granted those branches of the defendants’ motion which were for summary judgment dismissing the second, fourth, and fifth causes of action. The order, insofar as cross-appealed from, denied those branches of the defendants’ motion which were for summary judgment dismissing the first and third causes of action.ORDERED that the order is affirmed insofar as appealed from; and it is further,ORDERED that the order is reversed insofar as cross-appealed from, on the law, and those branches of the defendants’ motion which were for summary judgment dismissing the first and third causes of action are granted; and it is further,ORDERED that one bill of costs is awarded to the defendants.The plaintiff, William Jacobs, and the defendant Charles Cartalemi were the members of the defendant Westchester Industrial Complex, LLC (hereinafter WIC). At the time of the commencement of this action, the plaintiff held a 20 percent membership interest in WIC and Cartalemi held the remaining 80 percent interest. The plaintiff commenced this action on September 27, 2012, both individually and derivatively against Cartalemi and WIC, alleging five causes of action. His first cause of action sought an accounting, his second cause of action sought damages against Cartalemi for breach of fiduciary duty, his third cause of action sought the appointment of a receiver for WIC, his fourth cause of action sought the imposition of a constructive trust, and his fifth cause of action was to recover damages for waste. The plaintiff alleged, among other things, that since 2006, Cartalemi had unilaterally increased his salary and paid his family members excess wages; that Cartalemi had used space on WIC’s property for his personal use and failed to pay WIC a fair rental price; and that Cartalemi had mismanaged and misappropriated funds from WIC.During the pendency of this action, the plaintiff withdrew as a member of WIC effective December 1, 2015 (see Matter of Jacobs v. Cartalemi, __ AD3d __ [decided herewith). By notice of motion dated February 5, 2016, Cartalemi and WIC moved for summary judgment dismissing the complaint, contending that the plaintiff no longer had standing to maintain any of his causes of action, which were all derivative in nature. The plaintiff opposed the motion, contending, inter alia, that until such time as he was paid for his membership interest, he remained the equitable and beneficial owner of a 20 percent interest in WIC, and, therefore, was entitled to assert derivative claims. He also contended that, in any event, he could still maintain each of his causes of action as individual causes of action.The Supreme Court, in an order dated June 27, 2016, granted those branches of the defendants' motion which were for summary judgment dismissing the second, fourth, and fifth causes of action, and denied those branches of the motion which were for summary judgment dismissing the first and third causes of action. The plaintiff appeals from so much of the order as granted those branches of the defendants' motion which were for summary judgment dismissing the second, fourth, and fifth causes of action. The defendants cross-appeal from so much of the order as denied those branches of their motion which were for summary judgment dismissing the first and third causes of action."[M]embers of a limited liability company (LLC) may bring derivative suits on the LLC’s behalf” (Tzolis v. Wolff, 10 NY3d 100, 102). In a derivative suit, “[t]he remedy sought is for wrong done to the corporation; the primary cause of action belongs to the corporation; [and] recovery must enure to the benefit of the corporation” (Isaac v. Marcus, 258 NY 257, 264; see Marx v. Akers, 88 NY2d 189, 193). In the context of a corporation, “the standing of the shareholder is based on the fact that… he [or she] is defending his [or her] own interests as well as those of the corporation” (Tenney v. Rosenthal, 6 NY2d 204, 211; see Independent Inv. Protective League v. Time, Inc., 50 NY2d 259, 263). ”Where the plaintiff voluntarily disposes of the stock, his [or her] rights as a shareholder cease, and his [or her] interest in the litigation is terminated. Being a stranger to the corporation, the former stockowner lacks standing to institute or continue the suit” (Independent Inv. Protective League v. Time, Inc., 50 NY2d at 263-264 [citations omitted]; see Tenney v. Rosenthal, 6 NY2d at 211). The same is true in the context of an LLC. In order to maintain a derivative cause of action, a plaintiff must be a member of the LLC (see Herman v. Herman, 122 AD3d 506, 507; Billings v. Bridgepoint Partners, LLC, 21 Misc 3d 535, 540 [Sup Ct, Erie County]; cf. Maldonado v. DiBre, 140 AD3d 1501, 1504; Ciullo v. Orange & Rockland Utils., 271 AD2d 369; Rubinstein v. Catacosinos, 91 AD2d 445, 447, affd 60 NY2d 890). Thus, the Supreme Court properly held that, once the plaintiff withdrew from WIC, he lost standing to maintain any derivative causes of action on behalf of the company, notwithstanding his possible right to a future payment for the value of his membership interest upon his withdrawal (see Billings v. Bridgepoint Partners, LLC, 21 Misc 3d at 540; Howe v. Bank of New York Mellon, 783 F Supp 2d 466, 477 [SD NY]).In light of the plaintiff’s lack of standing to maintain derivative causes of action on behalf of WIC, the Supreme Court properly granted those branches of the defendants’ motion which were for summary judgment dismissing the second, fourth, and fifth causes of action. ”[A]llegations of mismanagement or diversion of assets by officers or directors to their own enrichment, without more, plead a wrong to the corporation only, for which a shareholder may sue derivatively but not individually” (Abrams v. Donati, 66 NY2d 951, 953). The subject causes of action, which sought damages for breach of fiduciary duty and waste, and the imposition of a constructive trust, respectively, were all based on alleged wrongs that were committed against WIC and not the plaintiff individually (see Zuckerbrod v. 355 Co., LLC, 113 AD3d 675, 676; Mizrahi v. Cohen, 104 AD3d 917, 919).For those same reasons, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action, which sought an accounting. ”The right to an accounting is premised upon the existence of a confidential or fiduciary relationship and a breach of the duty imposed by that relationship respecting property in which the party seeking the accounting has an interest” (Palazzo v. Palazzo, 121 AD2d 261, 265; see Dee v. Rakower, 112 AD3d 204, 214; Lawrence v. Kennedy, 95 AD3d 955, 958). Here, the plaintiff’s right to an accounting was based on his ability to prove that Cartalemi breached his fiduciary duty to WIC, a claim that is entirely derivative and which the plaintiff, having withdrawn as a member from WIC, no longer had standing to maintain (see Independent Inv. Protective League v. Time, Inc., 50 NY2d at 263-264; Tenney v. Rosenthal, 6 NY2d at 211; Zuckerbrod v. 355 Co., LLC, 113 AD3d at 676; Mizrahi v. Cohen, 104 AD3d at 919).The Supreme Court also should have granted that branch of the defendants’ motion which was for summary judgment dismissing the third cause of action, which was for the appointment of a receiver. ”The appointment of a receiver is not a form of ultimate relief that can be awarded in a plenary action, but rather, is limited as a provisional remedy (see CPLR 6401 [a]) or as an aid in post-judgment enforcement (see CPLR 5228)” (Old Republic Natl. Tit. Ins. Co. v. Cardinal Abstract Corp., 14 AD3d 678, 680-681).The plaintiff’s remaining contentions are without merit.MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Hall, Cohen and Iannacci, JJ.Marcos Mardirossian, ap, v. Pearl Express Cab, et al., res — (Index No. 703606/14)Malillo & Grossman, Flushing, NY (Mikhail Pinkusovich of counsel), for appellant.Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, NY (Robert D. Grace of counsel), for respondents.In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), entered April 15, 2016, which granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action to recover damages for personal injuries on the ground that he did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident.ORDERED that the order is reversed, on the law, with costs, and that branch of the defendants’ motion which was for summary judgment dismissing the cause of action to recover damages for personal injuries is denied.The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955, 956-957). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff’s spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law §5102(d) (see Staff v. Yshua, 59 AD3d 614).In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to the cervical and lumbar regions of his spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law §5102(d) (see Perl v. Meher, 18 NY3d 208, 218-219).Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the cause of action to recover damages for personal injuries.MASTRO, J.P., HALL, COHEN and IANNACCI, JJ., concur.By Miller, J.P.; Duffy, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Christopher Turner, ap — (Ind. No. 15-00043)Marianne Karas, Thornwood, NY, for appellant.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jennifer Spencer and William C. Milaccio of counsel; Conor Colbert Horan on the brief), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Warhit, J.), rendered May 12, 2016, convicting him of attempted robbery in the first degree (two counts), upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s valid waiver of his right to appeal (see People v. Sanders, 25 NY3d 337, 341-342; People v. Lopez, 6 NY3d 248, 256-257) precludes appellate review of his contention that the sentence imposed was excessive (see        People v. Seaberg, 74 NY2d 1, 9).MILLER, J.P., DUFFY, LASALLE and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Leventhal, Maltese and Duffy, JJ.PEOPLE, etc., res, v. Antonio Bruno, ap — (Ind. No. 11336/07)Antonio Bruno, Elmira, NY, appellant pro se.Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated April 15, 2015 (People v. Bruno, 127 AD3d 986), affirming a judgment of the Supreme Court, Kings County, rendered October 29, 2008.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).MASTRO, J.P., LEVENTHAL, MALTESE and DUFFY, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.MATTER of Xiomara C. (Anonymous). Administration for Childrens Services, res; Karen A. (Anonymous), ap — (Proceeding No. 1)MATTER of Bryanah C. (Anonymous). Administration for Childrens Services, res; Karen A. (Anonymous), ap — (Proceeding No. 2)MATTER of Asia A. (Anonymous). Administration for Childrens Services, res; Karen A. (Anonymous), ap — (Proceeding No. 3)MATTER of Sharayah A. (Anonymous). Administration for Childrens Services, res; Karen A. (Anonymous), ap — (Proceeding No. 4)MATTER of Isayah A. (Anonymous). Administration for Childrens Services, res; Karen A. (Anonymous), ap — (Proceeding No. 5)MATTER of Yahira C. (Anonymous). Administration for Childrens Services, res; Karen A. (Anonymous), ap — (Proceeding No. 6)MATTER of London A. (Anonymous). Administration for Childrens Services, res; Karen A. (Anonymous), ap — (Proceeding No. 7)MATTER of Aminah G. (Anonymous). Administration for Childrens Services, res; Karen A. (Anonymous), ap — (Proceeding No. 8) (Docket Nos. N-28852-14, N-28853-14, N-28854-14, N-28855-14, N-28856-14, N-28857-14, N-24164-15, N-7373-16)Steven P. Forbes, Jamaica, NY, for appellant.Zachary W. Carter, Corporation Counsel, New York, NY (Jane L. Gordon and Antonella Karlin of counsel), for respondent.Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Judith Stern of counsel), attorney for the children Xiomara C., Bryanah C., Isayah A., and Yahira C.Karen P. Simmons, Brooklyn, NY (Laura Solecki and Janet Neustatetter of counsel), attorney for the children Asia A. and Sharayah A.Appeal by the mother from an order of the Family Court, Kings County (Ann E. O’Shea, J.), dated April 25, 2016. The order, insofar as appealed from, after a hearing, denied that branch of the mother’s application which was pursuant to Family Court Act §1028 for the return of her children Xiomara C., Bryanah C., Isayah A., and Yahira C. to her custody.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.In these related child neglect proceedings pursuant to Family Court Act article 10, the petitioner alleged that the mother failed to exercise a minimum degree of care after an incident in which one of her children was given the responsibility of escorting three of her siblings to school in Brooklyn from a shelter in the Bronx, and two of the children became lost. As relevant to this appeal, six of the children were removed from the mother’s care after this incident and placed in the care of their maternal grandmother. The mother made an application pursuant to Family Court Act §1028 to have those six children returned to her. The court denied that branch of her application which was for the return of the children Xiomara C., Bryanah C., Isayah A., and Yahira C. (hereinafter collectively the subject children). The mother appeals from so much of the order as denied that branch of her application.The Family Court properly denied that branch of the mother’s application which was for the return of the subject children. An application pursuant to Family Court Act §1028(a) for the return of a child who has been temporarily removed shall be granted unless the court finds that the return presents an imminent risk to the child’s life or health (see Family Ct Act §1028[a]; Matter of Audrey L. [Marina L.], 147 AD3d 838; Matter of Hannah T.R. [Soraya R.], 145 AD3d 1012; Matter of David L.S. [Caprice L.T.], 145 AD3d 901). There must be evidence that the harm or danger is imminent, that is, near or impending, not merely possible (see Nicholson v. Scoppetta, 3 NY3d 357, 369; Matter of Zachariah W. [Dominique W.], 149 AD3d 853).In reviewing the Family Court’s determination of an application pursuant to Family Court Act §1028(a), this Court must determine whether a sound and substantial basis in the record supports the Family Court’s determination (see Matter of Audrey L. [Marina L.], 147 AD3d at 839). Here, the Family Court’s determination denying that branch of the mother’s application which was for the return of the subject children had a sound and substantial basis in the record, as there was evidence that a return of those children to the mother would present an imminent risk to their lives or health. The court’s determination as to the mother’s credibility should not be disturbed, as it is supported by the record (see Matter of Zephyr D. [Luke K.], 148 AD3d 1013; Matter of Iris G. [Angel G.], 144 AD3d 908).HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Rivera, J.P.; Austin, Roman, Hinds-Radix and Connolly, JJ.PEOPLE, etc., res, v. Ronald Felder, ap — (Ind. No. 9758/14)Paul Skip Laisure, New York, NY, for appellant.Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (W. Miller, J.), rendered June 9, 2016, convicting him of driving while intoxicated as a felony in violation of Vehicle and Traffic Law §1192(3), upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the defendant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).RIVERA, J.P., AUSTIN, ROMAN, HINDS-RADIX and CONNOLLY JJ., concur.By Miller, J.P.; Duffy, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Dyquante Robinson, ap — (Ind. No. 1229/15)Paul Skip Laisure, New York, NY, for appellant.Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (W. Miller, J., at plea; Sciarrino, Jr., J., at sentence), rendered May 16, 2016, convicting him of attempted burglary in the second degree (three counts), upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the defendant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).MILLER, J.P., DUFFY, LASALLE and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Hall, Cohen and Iannacci, JJ.PEOPLE, etc., res, v. Leroy D. (Anonymous), ap — (Ind. No. 1161/15)Paul Skip Laisure, New York, NY (Bryan D. Kreykes of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Emily Sun on the brief), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (Zayas, J.), rendered January 21, 2016, adjudicating him a youthful offender, upon his plea of guilty to criminal possession of a weapon in the third degree, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the defendant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).MASTRO, J.P., HALL, COHEN and IANNACCI, JJ., concur.By Balkin, J.P.; Maltese, Barros and Connolly, JJ.K. J., an infant by his father and natural guardian, Lonnie Jefferson ap, v. City of New York res — (Index No. 3840/15)Louis C. Fiabane, New York, NY (Stanislav Ladnik of counsel), for appellants.Zachary W. Carter, Corporation Counsel, New York, NY (Deborah A. Brenner and Tahirih M. Sadrieh of counsel), for respondents.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 (Genovesi, J.), dated July 7, 2016, as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Board of Education of the City of New York and New York City Department of Education.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Board of Education of the City of New York and New York City Department of Education is denied.On December 1, 2014, the then 14-year-old infant plaintiff allegedly sustained personal injuries, including a fractured orbital bone, when he was assaulted by four fellow students in a stairwell leading from the cafeteria at Abraham Lincoln High School in Brooklyn. The infant plaintiff, by his father and natural guardian, and his father, individually, commenced this action alleging, inter alia, negligent supervision. In an order dated July 7, 2016, the Supreme Court granted the defendants’ motion for summary judgment dismissing the complaint. The plaintiffs appeal from so much of the order as granted that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Board of Education of the City of New York and New York City Department of Education (hereinafter together the DOE). We reverse the order insofar as appealed from.In support of their motion, the defendants relied upon the plaintiffs’ testimony at hearings held pursuant to General Municipal Law §50-h, and deposition testimony of a school safety officer. The infant plaintiff testified that while he was in the cafeteria during the lunch period, one of the assailants threw an object at him. The infant plaintiff went over to the assailants’ table, and one of the assailants repeatedly challenged him to a fight. The infant plaintiff declined the challenges to fight and returned to his table without reporting the incident to any school personnel. The infant plaintiff then observed the assailants exit the cafeteria and one of the assailants walk toward the stairwell. At the end of the lunch period, the infant plaintiff exited the cafeteria doors to the stairwell in order to go to his next class, which was located up the stairs. The four assailants blocked the infant plaintiff’s access to the stairs and proceeded to punch and kick him. The infant plaintiff estimated that he was punched and kicked for 25 seconds. After the assault, the infant plaintiff fled the stairwell back into the cafeteria where he found a dean who took him to the nurse’s office. It is undisputed that there were no school safety officers, school personnel, or security cameras in the subject stairwell at the time of the incident.The school safety officer testified that he did not witness the assault. He was called on the radio by a dean to render assistance to the infant plaintiff. He testified that his job duties did not include supervision of the cafeteria during lunch, and that the deans supervise the cafeteria. He further testified that, as a general matter, during the break between class periods, teachers stand in the hallway while the school safety officers patrol the hallways to make sure the students are headed to class. He did not know how many students attended the school, how many school safety officers were assigned to the school at the time of the incident, where school safety officers were stationed throughout the day, and how often there were violent incidents in the school hallways or the stairwells generally. He did not know how many students attacked the infant plaintiff or the assailants’ identities. He had seen one of the assailants in the dean’s office on one or two occasions prior to the infant plaintiff’s incident. The officer testified that he had a supervisor who was in charge of school safety personnel in the building, but the defendants did not proffer any evidence from that supervisor, or anyone familiar with the students involved in the assault.The infant plaintiff’s father testified that after the incident, he spoke to a dean who informed him that one of his son’s assailants had assaulted another student on a prior occasion. The father also testified that he was aware that a number of the assailants were members of the Crips gang.The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v. City of New York, 49 NY2d 557, 562). ”This burden may be satisfied only by the defendant’s affirmative demonstration of the merit of the defense, rather than merely by reliance on gaps in the plaintiffs’ case” (Shafi v. Motta, 73 AD3d 729, 730).“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (Mirand v. City of New York, 84 NY2d 44, 49). ”The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” (id. at 49; see Khosrova v. Hampton Bays Union Free Sch. Dist., 99 AD3d 669, 671).“In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” (Mirand v. City of New York, 84 NY2d at 49; see Whitfield v. Board of Educ. of City of Mount Vernon, 14 AD3d 552, 553). ”Actual or constructive notice to the school of prior similar conduct is generally required,” and “an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence” (Mirand v. City of New York, 84 NY2d at 49; see Whitfield v. Board of Educ. of City of Mount Vernon, 14 AD3d at 553).Even if a breach of the duty of supervision is established, it must be demonstrated that such negligence was a proximate cause of the injuries sustained (see Mirand v. City of New York, 84 NY2d at 49; Whitfield v. Board of Educ. of City of Mount Vernon, 14 AD3d at 553). The test for causation is “whether under all the circumstances the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school’s negligence” (Mirand v. City of New York, 84 NY2d at 50). The issues of adequacy of supervision and proximate cause are generally factual questions for the jury (see id. at 51; Wood v. Watervliet City School Dist., 30 AD3d 663, 664).Here, the defendants’ submissions failed to eliminate all triable issues of fact as to whether the DOE had actual or constructive notice of the fellow students’ potential for causing harm, and whether, under the circumstances, the DOE provided adequate supervision at the end of the lunch period in the area where the assault occurred (see Lennon v. Cornwall Cent. Sch. Dist., 132 AD3d 820, 820; Smith v. Poughkeepsie City School Dist., 41 AD3d 579, 580; Hernandez v. City of New York, 24 AD3d 723, 723). The defendants failed to proffer any evidence demonstrating that the DOE lacked actual or constructive notice of any prior violent behavior by any of the infant plaintiff’s assailants. Moreover, given the witnesses’ testimony regarding the disciplinary history of one of the infant plaintiff’s assailants, there were triable issues of fact as to whether the DOE had specific knowledge of that student’s dangerous propensities (see Smith v. Poughkeepsie City School Dist., 41 AD3d at 581; Wood v. Watervliet City School Dist., 30 AD3d at 664; Speight v. City of New York, 309 AD2d 501, 501-502). The defendants failed to proffer sufficient evidence demonstrating the general security measures at the school, including the number of school safety officers on duty, where the school safety officers were assigned in the vicinity of the cafeteria and stairwell, and the frequency of violence in the hallways and stairwells between class periods and after lunch.Contrary to the defendants’ contentions, they also failed to eliminate triable issues of fact as to whether inadequate security was a proximate cause of the infant plaintiff’s injuries (see Mirand v. City of New York, 84 NY2d at 51). In determining whether an incident occurs “in so short a span of time that even the most intense supervision could not have prevented it” (Convey v. City of Rye School Dist., 271 AD2d 154, 160; see Tanenbaum v. Minnesauke Elementary School, 73 AD3d 743, 744; Siegell v. Herricks Union Free School Dist., 7 AD3d 607, 608), “[t]he issue is not the speed of the punch, but the circumstances leading up to and surrounding” the incident (Wood v. Watervliet City School Dist., 30 AD3d at 665; see Mirand v. City of New York, 84 NY2d at 50). According to the infant plaintiff’s section 50-h hearing testimony, the four assailants left the cafeteria prior to the end of the lunch period and were able to block access to the stairwell when the lunch period ended. There was an absence of supervisory personnel or security in the subject stairwell when it would be expected that a large number of students would be exiting the cafeteria and using that stairwell (see Mirand v. City of New York, 84 NY2d at 50-51). ”Proximate cause is a question of fact for the jury where varying inferences are possible,” and “[p]roper supervision depends largely on the circumstances surrounding the event” (id. at 51). Here, the circumstances leading up to and surrounding the assault upon the infant plaintiff raised triable issues of fact as to whether adequate supervision would have prevented the assault.Accordingly, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against the DOE, and the Supreme Court should have denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against the DOE regardless of the sufficiency of the plaintiffs’ opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851).BALKIN, J.P., MALTESE, BARROS and CONNOLLY, JJ., concur.By Dillon, J.P.; Sgroi, Maltese, Barros and Christopher, JJ.PEOPLE, etc., res, v. Joshua Conklin, ap — (S.C.I. No. 16-00015)John R. Lewis, Sleepy Hollow, NY, for appellant.David M. Hoovler, District Attorney, Middletown, NY (Andrew R. Kass of counsel; William E. Podszus on the brief), for respondent.Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered March 11, 2016, convicting him of escape in the second degree, upon his plea of guilty, and imposing sentence upon his adjudication as a second felony offender.ORDERED that the judgment is modified, on the law, by vacating the defendant’s adjudication as a second felony offender and the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for a new second felony offender hearing and for resentencing thereafter.At the sentencing proceeding, the defendant admitted that he had a prior felony conviction in 2008 of burglary in the second degree. However, he indicated that he was challenging his 2008 felony conviction on constitutional grounds. Under these circumstances, as the People correctly concede, the County Court was obligated to conduct further inquiry to ascertain the nature of the defendant’s constitutional challenges, and to conduct a hearing thereon (see CPL 400.21; People v. Pierre, 30 AD3d 897; People v. Katz, 214 AD2d 586; People v. Chestnut, 188 AD2d 480; People v. Davis, 144 AD2d 688).DILLON, J.P., SGROI, MALTESE, BARROS and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Cohen, Connolly and Christopher, JJ.Nancyanne F. Humes, ap, v. Michael T. Humes, res — (Index No. 1920/14)Peter D. Barlet, Warwick, NY, for appellant.Larkin, Ingrassia & Tepermayster, LLP, Newburgh, NY (William J. Larkin III of counsel), for respondent.Appeals by the plaintiff from (1) an order of the Supreme Court, Orange County (Maria S. Vazquez-Doles, J.), dated June 18, 2015, and (2) a judgment of divorce of that court dated April 4, 2016. The order denied the plaintiff’s motion to set aside the parties’ separation agreement and for an award of an attorney’s fee, and directed the entry of a judgment of divorce which incorporated, but did not merge, the separation agreement. The judgment of divorce, insofar as appealed from, was entered upon the order.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment of divorce is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the defendant.The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of divorce in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment of divorce (see CPLR 5501[a][1]).In this matrimonial action, the plaintiff moved to set aside the parties’ separation agreement on the grounds of overreaching and fraud, and for an award of an attorney’s fee. In an order dated June 18, 2015, the Supreme Court denied the plaintiff’s motion and directed the entry of a judgment of divorce which incorporated, but did not merge, the separation agreement. A judgment of divorce was entered upon the order. The plaintiff appeals.“An agreement between spouses which is fair on its face will be enforced according to its terms unless there is proof of unconscionability, or fraud, duress, overreaching, or other inequitable conduct” (McKenna v. McKenna, 121 AD3d 864, 865; see Christian v. Christian, 42 NY2d 63, 73; Gardella v. Remizov, 144 AD3d 977, 978-979; Hof v. Hof, 131 AD3d 579, 579-580; Cioffi-Petrakis v. Petrakis, 103 AD3d 766, 767). ”An agreement, however, is not unconscionable merely because, in retrospect, some of its provisions were improvident or one-sided” (Ku v. Huey Min Lee, 151 AD3d 1040, 1041 [internal quotation marks omitted]; see Label v. Label, 70 AD3d 898, 899; O’Lear v. O’Lear, 235 AD2d 466).Here, the Supreme Court properly denied that branch of the plaintiff’s motion which was to set aside the parties’ separation agreement, as she failed to demonstrate that the agreement, which was fair on its face, was the result of fraud or overreaching, or any other basis upon which the agreement could be set aside (see        Ku v. Huey Min Lee, 151 AD3d at 1041; Label v. Label, 70 AD3d at 900).The Supreme Court also providently exercised its discretion in declining to award the plaintiff an attorney’s fee (see Domestic Relations Law §237; DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881; Gottlieb v. Gottlieb, 297 AD2d 620).The plaintiff’s remaining contentions are without merit.DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Balkin, Hall and Lasalle, JJ.MATTER of Braccos Clam & Oyster Bar, Inc., pet, v. New York State Liquor Authority, res — (Index No. 5868/16)Michael Solomon, Freeport, NY (V. Roy Cacciatore of counsel), for petitioner.Christopher R. Riano, Albany, NY (Mark D. Frering and Alexandra S. Obremski of counsel), for respondent.Proceeding pursuant to CPLR article 78 to review so much of a determination of the New York State Liquor Authority dated June 30, 2016, as adopted the recommendation of an Administrative Law Judge dated March 17, 2016, made after a hearing, sustaining two charges that the petitioner violated Alcoholic Beverage Control Law §106(6) and rule 54.2 of the Rules of the New York State Liquor Authority (9 NYCRR 48.2), and imposed a civil penalty of $4,000.ADJUDGED that the determination is confirmed insofar as reviewed, the petition is denied, and the proceeding is dismissed on the merits, with costs.In June 2015, the respondent, the New York State Liquor Authority, commenced a proceeding to cancel or revoke the license of the petitioner, Bracco’s Clam & Oyster Bar, Inc., based on charges, inter alia, that on May 17, 2015, it suffered or permitted the licensed premises to become disorderly in violation of Alcoholic Beverage Control Law §106(6), and that it failed to exercise adequate supervision over the conduct of the licensed business in violation of rule 54.2 of the Rules of the New York State Liquor Authority (9 NYCRR 48.2) on that date. At a hearing before an Administrative Law Judge, the respondent presented the testimony of a police sergeant and documents indicating that a fight between patrons occurred at the licensed premises on May 17, 2015. The petitioner presented the testimony of one of its principals, who, among other things, disputed that the altercation occurred at the premises. The Administrative Law Judge credited the respondent’s evidence and found that there was substantial evidence to sustain the two charges. On June 30, 2016, the respondent issued a determination, which adopted the Administrative Law Judge’s recommendation sustaining those charges and imposed a civil penalty of $4,000. The petitioner commenced this proceeding pursuant to CPLR article 78 to review the respondent’s determination, and the Supreme Court transferred the proceeding to this Court.“Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence” (Matter of Albany Manor, Inc. v. New York State Liq. Auth., 44 AD3d 759, 759; see Matter of Clan Fitz, Inc. v. New York State Liq. Auth., 144 AD3d 1024, 1025; Matter of Sherwyn Toppin Mktg. Consultants, Inc. v. New York State Liq. Auth., 103 AD3d 648, 651). Substantial evidence has been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 180). It is “[m]ore than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt” (id. at 180-181). ”‘The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable’” (Matter of Sherwyn Toppin Mktg. Consultants, Inc. v. New York State Liq. Auth., 103 AD3d at 652, quoting Matter of Ridge Rd. Fire Dist. v. Schiano, 16 NY3d 494, 499). The strict rules of evidence do not apply to administrative proceedings and hearsay evidence is admissible (see Matter of Culligan’s Pub v. New York State Liq. Auth., 170 AD2d 506). Hearsay evidence may constitute substantial evidence if sufficiently relevant and probative and may, under appropriate circumstances, form the sole basis for an agency’s determination, unless it is seriously controverted (see Matter of JMH, Inc. v. New York State Liq. Auth., 61 AD3d 1260, 1261; Matter of S & S Pub, Inc. v. New York State Liq. Auth., 49 AD3d 654, 655; Matter of A.J. & Taylor Rest. v. New York State Liq. Auth., 214 AD2d 727).Here, contrary to the petitioner’s contention, the respondent’s determination, sustaining the two charges that the petitioner violated Alcoholic Beverage Control Law §106(6) and rule 54.2 of the Rules of the New York State Liquor Authority (9 NYCRR 48.2), is supported by substantial evidence (see Matter of Willis v. New York State Liq. Auth., 118 AD3d 1013, 1014; Matter of Confetti, Inc. v. New York State Liq. Auth., 44 AD3d 1041, 1042; cf. Matter of Island Mermaid Rest. Corp. v. New York State Liq. Auth., 52 AD3d 603, 604).DILLON, J.P., BALKIN, HALL and LASALLE, JJ., concur.By Balkin, J.P.; Hinds-Radix, Duffy and Connolly, JJ.Joseph Pomerantsev, ap, v. Vladimir Kodinsky, respondent def — (Index No. 510617/15)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Baynes, J.), dated July 28, 2016, which granted the motion of the defendant Vladimir Kodinsky pursuant to CPLR 510(1) and 511 to change the venue of the action from Kings County to Richmond County.ORDERED that the order is reversed, on the law, with costs, the motion of the defendant Vladimir Kodinsky pursuant to CPLR 510(1) and 511 to change the venue of the action from Kings County to Richmond County is denied, and the Clerk of the Supreme Court, Richmond County, is directed to deliver to the Clerk of the Supreme Court, Kings County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511[d]).CPLR 503(a) provides, in relevant part, that “the place of trial shall be in the county in which one of the parties resided when it was commenced.” ”For venue purposes, a residence is where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency” (Ellis v. Wirshba, 18 AD3d 805, 805; see Johnson v. Finkelstein, 145 AD3d 863, 863; Patton v. Malychev, 132 AD3d 829, 830; Forbes v. Rubinovich, 94 AD3d 809, 810). In the context of venue, a party may have more than one residence (see CPLR 503[a]; Patton v. Malychev, 132 AD3d at 830).“In order to prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must show that the plaintiff’s choice of venue is improper, and also that the defendant’s choice of venue is proper” (Deas v. Ahmed, 120 AD3d 750, 750; see CPLR 511[b]; Kidd v. 22-11 Realty, LLC, 142 AD3d 488, 489; Gonzalez v. Sun Moon Enters. Corp., 53 AD3d 526). Here, in support of his motion pursuant to CPLR 510(1) and 511 to change the venue of the action from Kings County to Richmond County, the defendant Vladimir Kodinsky failed to demonstrate that the plaintiff did not reside in Kings County at the time of commencement of the action (see Deas v. Ahmed, 120 AD3d at 751; Chehab v. Roitman, 120 AD3d 736, 737-738). Hence, Kodinsky failed to meet his initial burden, and the Supreme Court should have denied his motion to change the venue of the action.BALKIN, J.P., HINDS-RADIX, DUFFY and CONNOLLY, JJ., concur.By Balkin, J.P.; Hinds-Radix, Duffy and Connolly, JJ.Joseph Pomerantsev, plf-res, v. Vladimir Kodinsky, ap, Lizette Flores, defendant- res — (Index No. 510617/15)In an action to recover damages for personal injuries, the defendant Vladimir Kodinsky appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Baynes, J.), dated July 28, 2016, as denied his cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and the cross motion of the defendant Vladimir Kodinsky for summary judgment dismissing the complaint and all cross claims insofar as asserted against him is granted.This action arises from a three-vehicle accident which occurred on the eastbound Staten Island Expressway near its intersection with Clove Road in Richmond County. The plaintiff, who was operating the lead vehicle, commenced this action against the defendant Vladimir Kodinsky, who was operating the middle vehicle, and the defendant Lizette Flores, who was operating the rearmost vehicle. After other motions were made, Kodinsky cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against him, contending that he was not at fault in the happening of the accident. The Supreme Court, inter alia, denied the cross motion. Kodinsky appeals.“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway” (Vehicle and Traffic Law §1129[a]; see Napolitano v. Galletta, 85 AD3d 881, 882). Hence, “[a] rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision” (Hauser v. Adamov, 74 AD3d 1024, 1025; see Hanakis v. DeCarlo, 98 AD3d 1082, 1084). ”Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation” (Ortiz v. Haidar, 68 AD3d 953, 954; see Wooldridge-Solano v. Dick, 143 AD3d 698, 699; Kuris v. El Sol Contr. & Constr. Corp., 116 AD3d 675, 676; Strickland v. Tirino, 99 AD3d 888; Hanakis v. DeCarlo, 98 AD3d at 1084; Katz v. Masada II Car & Limo Serv., Inc., 43 AD3d 876, 877).Here, Kodinsky established his entitlement to judgment as a matter of law by demonstrating, prima facie, that his vehicle was slowing down in response to a traffic condition ahead, and that his vehicle was then propelled forward into the plaintiff’s vehicle after his vehicle was struck in the rear by Flores’s vehicle (see Ortiz v. Haidar, 68 AD3d at 954; Katz v. Masada II Car & Limo Serv., Inc., 43 AD3d at 877). In response, neither Flores nor the plaintiff raised a triable issue of fact. Contrary to the contention of the plaintiff and Flores, the cross motion was not premature (see CPLR 3212[f]).Accordingly, the Supreme Court should have granted Kodinsky’s cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.BALKIN, J.P., HINDS-RADIX, DUFFY and CONNOLLY, JJ., concur.By Mastro, J.P.; Chambers, Austin and Duffy, JJ.PEOPLE, etc., res, v. Julio Smith, ap — (Ind. No. 6713/98)Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated February 25, 2002 (People v. Smith, 291 AD2d 575), affirming a judgment of the Supreme Court, Kings County, rendered October 26, 1999.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).MASTRO, J.P., CHAMBERS, AUSTIN and DUFFY, JJ., concur.