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By Leventhal, J.P.; Barros, Connolly and Brathwaite Nelson, JJ.Jae S. Lee, ap, v. Law Offices of Kim & Bae, P.C. res — (Index No. 13926/3)In an action, inter alia, to recover damages for malicious prosecution, the plaintiff appeals from an order of the Supreme Court, Nassau County (Angela G. Iannacci, J.), entered April 30, 2015. The order, insofar as appealed from, denied the plaintiff’s application, made in her reply affirmation, to deem her motion for leave to enter a default judgment to also be considered as one to vacate a prior order of the same court dated February 26, 2014, granting the defendants’ unopposed motion to dismiss the complaint, and thereupon, for leave to enter a default judgment in her favor.ORDERED that on the Court’s own motion, the notice of appeal from so much of the order entered April 30, 2015, as denied the plaintiff’s application, made in her reply affirmation, to deem her motion for leave to enter a default judgment to also be considered as one to vacate the prior order dated February 26, 2014, is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,ORDERED that the order entered April 30, 2015, is affirmed insofar as appealed from, with costs.After the plaintiff commenced this action, inter alia, to recover damages for malicious prosecution, the defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7). In an order dated February 26, 2014 (hereinafter the dismissal order), the Supreme Court granted the defendants’ unopposed motion to dismiss the complaint (hereinafter the dismissal order).More than eight months later, the plaintiff moved for leave to enter a default judgment in her favor. After opposition papers were served, the plaintiff served a reply affirmation, in which she requested that the Supreme Court consider her motion to be one to vacate the order of dismissal, and thereupon, for leave to enter a default judgment in her favor. The court denied, as academic, the plaintiff’s motion for leave to enter a default judgment in light of the dismissal order. The court also denied the plaintiff’s application to deem her motion to also be considered as one to vacate the dismissal order, and the plaintiff appeals from that portion of the order.The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds or evidence for, the motion (see USAA Fed. Sav. Bank v. Calvin, 145 AD3d 704, 706; Allstate Flooring Distribs., L.P. v. MD Floors LLC, 131 AD3d 834, 836; Mikulski v. Battaglia, 112 AD3d 1355, 1356; Matter of Allstate Ins. Co. v. Dawkins, 52 AD3d 826, 827; Dannasch v. Bifulco, 184 AD2d 415, 415). Here, the plaintiff’s reply papers included new arguments in support of the motion, new grounds and evidence for the motion, and expressly requested relief that was dramatically unlike the relief sought in her original motion (see USAA Fed. Sav. Bank v. Calvin, 145 AD3d at 706; Carter v. Johnson, 110 AD3d 656, 658). Therefore, those contentions, and the grounds and evidence in support of them, were not properly before the Supreme Court (see USAA Fed. Sav. Bank v. Calvin, 145 AD3d at 706; Mikulski v. Battaglia, 112 AD3d at 1356). Accordingly, we agree with the court’s determination to deny the plaintiff’s application to deem her motion to also be considered as one to vacate the dismissal order.The plaintiff’s remaining contention is not properly before this Court.LEVENTHAL, J.P., BARROS, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.Teddy Lebron, ap, v. Adu-Tutu Mensah res — (Index No. 7406/14)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Edwards, J.), dated March 31, 2017, which denied his motion for summary judgment on the issue of liability and, in effect, to dismiss the defendants’ affirmative defense alleging comparative negligence.ORDERED that the order is reversed, on the law, with costs, and the plaintiff’s motion for summary judgment on the issue of liability and, in effect, to dismiss the defendants’ affirmative defense alleging comparative negligence is granted.On May 12, 2014, at the intersection of Fifth Avenue and Park Place in Brooklyn, the plaintiff allegedly was injured when the scooter he was operating came into contact with a yellow taxi operated by the defendant Adu-Tutu Mensah (hereinafter the defendant driver) and owned by the defendant Sinkeria, Inc.On May 15, 2014, the plaintiff commenced this action to recover damages for personal injures. After discovery, the plaintiff moved for summary judgment on the issue of liability and, in effect, to dismiss the defendants’ affirmative defense alleging comparative negligence. In support of the motion, the plaintiff submitted, inter alia, copies of the transcript of his deposition testimony, photographs of the accident scene, the affidavits of nonparty witnesses who either saw the collision or saw the accident scene immediately after the collision occurred, the police accident report, and the defendant driver’s MV-104 accident report. According to the evidence submitted by the plaintiff, the accident occurred when the defendants’ taxi, traveling in the opposite direction from the plaintiff’s scooter, suddenly made a left turn directly into the path of the plaintiff’s scooter. The defendant driver stated, in both the police accident report and in the MV-104 accident report, that at the time of the occurrence, he was attempting to make a left turn onto Park Place in the eastbound direction.In opposition to the motion, the defendants submitted the transcript of the defendant driver’s deposition and an affirmation from their attorney. In his deposition, the defendant driver stated that his taxi had not yet entered the intersection and had not begun to make the left turn when the taxi and the plaintiff’s scooter came into contact with each other. He also stated that the taxi was facing straight, that no part of it was on or had crossed the double yellow line, and that no part of the plaintiff’s scooter was on or had crossed the double yellow line when the contact occurred. The Supreme Court denied the motion, and the plaintiff appeals.Pursuant to Vehicle and Traffic Law §1141, the operator of a vehicle intending to turn left within an intersection must yield the right-of-way to any oncoming vehicle which is within the intersection or so close to it as to constitute an immediate hazard (see Attl v. Spetler, 137 AD3d 1176; Ducie v. Ippolito, 95 AD3d 1067, 1067-1068; Ahern v. Lanaia, 85 AD3d 696). A violation of this statute constitutes negligence per se (see Katikireddy v. Espinal, 137 AD3d 866, 867; Vainer v. DiSalvo, 79 AD3d 1023, 1024). The operator of an oncoming vehicle with the right-of-way is entitled to assume that the opposing operator will yield in compliance with the Vehicle and Traffic Law (see Attl v. Spetler, 137 AD3d at 1176; Arias v. Tiao, 123 AD3d 857, 858).Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that the defendant driver violated Vehicle and Traffic Law §1141 when he made a left turn directly into the path of the plaintiff’s scooter when it was not reasonably safe to do so, and that this violation was the sole proximate cause of the accident (see Mei-Hua Gao v. Makrinos, 147 AD3d 747; Foley v. Santucci, 135 AD3d 813, 813-814; Pyke v. Bachan, 123 AD3d 994; Dulcie v. Ippolito, 95 AD3d at 1067-1068). In opposition to the motion, the defendants failed to raise a triable issue of fact. The defendant driver testified at his deposition that, at the time of the occurrence, his taxi had not entered the intersection, was stopped, and was facing straight ahead. This testimony reflects a belated attempt to avoid the consequences of his earlier admissions in the police accident report and the MV-104 accident report that he was in the process of making a left turn, by raising a feigned issue of fact which was insufficient to defeat the motion (see Buchinger v. Jazz Leasing Corp., 95 AD3d 1053, 1053). In particular, the MV-104 form, which was prepared and signed by the defendant, expressly stated that the defendant was proceeding to make a left turn onto eastbound Park Avenue when the collision occurred.Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability and, in effect, to dismiss the defendants’ affirmative defense alleging comparative negligence.DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Dillon, J.P.; Miller, Barros and Christopher, JJ.Kwang Bok Yi, appellant-res, v. Open Karaoke Corp. respondents-ap — (Index No. 51789/14)In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Francesca E. Connolly, J.), dated February 5, 2015, as denied his motion for leave to enter a default judgment against the defendants Open Karaoke Corp., 162 D&Y Corp., and Yong Ae Ha on the issue of liability, upon the failure of those defendants to appear or answer the complaint, and the defendants cross-appeal, as limited by their brief, from so much of the same order as denied those branches of their cross motion which were to extend the time for the defendants Open Karaoke Corp., 162 D&Y Corp., and Yong Ae Ha to appear in the action and to compel the plaintiff to accept a second amended verified answer on behalf of those defendants.ORDERED that the order is affirmed insofar as appealed from; and it is further,ORDERED that the defendants’ cross appeal is dismissed as academic in light of our determination on the companion appeal (see Kwang Bok Yi v. Open Karaoke Corp., __ AD3d __ [Appellate Division Docket No. 2016-11486, decided herewith]); and it is further,ORDERED that one bill of costs is awarded to the defendants.On February 7, 2011, the plaintiff was a patron of a karaoke bar located at 40-20 149th Place, in Flushing. When an employee of the bar demanded that the plaintiff pay a bill for services received, the plaintiff refused and a fight ensued. The police were summoned and the plaintiff was arrested and charged with, inter alia, assault in the third degree.The plaintiff commenced this action by summons with notice against Norae Hahnun Jib, Corp. (hereinafter Norae), Dong Hyun Ha (hereinafter Dong), Open Karaoke Corp. (hereinafter Open Karaoke), 162 D&Y Corp. (hereinafter D&Y), and Yong Ae Ha (hereinafter Yong), alleging that he was attacked without provocation by an employee of the bar and sustained personal injuries as a result of the attack. Dong and Yong allegedly owned the corporate defendants, Norae, Open Karaoke, and D&Y, and all of the defendants allegedly operated the bar. In response to the demand for a complaint by Norae and Dong, the only parties who had formally appeared in the action at that time, the plaintiff served a verified complaint, asserting a negligent hiring and retention cause of action and a cause of action based on 42 USC §1983. By the time Open Karaoke served a verified answer, the plaintiff had already moved for leave to enter a default judgment against it, D&Y, and Yong, on the issue of liability, upon their failure to appear or answer the complaint. In the interim, the defendants served a second amended verified answer on behalf of all of them, and cross-moved, inter alia, to extend the time for Open Karaoke, D&Y, and Yong to appear, and to compel the plaintiff to accept the second amended verified answer on behalf of all of the defendants. The Supreme Court denied the plaintiff’s motion for leave to enter a default judgment against Open Karaoke, D&Y, and Yong, and denied those branches of the defendants’ cross motion which were to extend the time for Open Karaoke, D&Y, and Yong to appear in the action and to compel the plaintiff to accept the second amended verified answer on behalf of those defendants.Contrary to the plaintiff’s contention, the Supreme Court did not err in denying his motion for leave to enter a default judgment against Open Karaoke, D&Y, and Yong, as the plaintiff failed, inter alia, to submit adequate proof of the facts sufficient to establish viable causes of action against them (see Charmon v. Pavy, 153 AD3d 493, 494; Roy v. 81 E. 98th KH Gym, LLC, 142 AD3d 985, 985; Fried v. Jacob Holding, Inc., 110 AD3d 56, 59). The plaintiff’s contention that the court improperly considered the defendants’ papers in opposition to his motion for leave to enter a default judgment is without merit.DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Miller, Barros and Christopher, JJ.Kwang Bok Yi, ap, v. Open Karaoke Corp., et al., def, Norae Hahnun Jib, Corp. res — (Index No. 51789/14)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (William J. Giacomo, J.), dated October 7, 2016, which granted that branch of the motion of the defendants Norae Hahnun Jib, Corp., and Dong Hyun Ha which was for summary judgment dismissing the complaint insofar as asserted against them and, sua sponte, directed the dismissal of the complaint insofar as asserted against the defendants Open Karaoke Corp., 162 D&Y Corp., and Yong Ae Ha.ORDERED that the appeal from so much of the order as, sua sponte, directed the dismissal of the complaint insofar as asserted against the defendants Open Karaoke Corp., 162 D&Y Corp., and Yong Ae Ha is dismissed, 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 leave to appeal from that portion of the order has not been granted (see CPLR 5701[c]); and it is further,ORDERED that the order is affirmed insofar as reviewed; and it is further,ORDERED that one bill of costs is awarded to the respondents.The underlying facts in this case are set forth in the companion appeal (see Kwang Bok Yi v. Open Karaoke Corp., __ AD3d __ [Appellate Division Docket No. 2015-01836; decided herewith]). Insofar as is relevant on this appeal, on February 7, 2011, the plaintiff was a patron at a karaoke bar operated by the defendant Norae Hahnun Jib, Corp. (hereinafter Norae), and co-owned by the defendant Dong Hyun Ha (hereinafter Dong), when he allegedly was attacked without provocation by an employee of the bar and sustained personal injuries. In his verified complaint, the plaintiff asserted a negligent hiring and retention cause of action and a cause of action based on 42 USC §1983. Following discovery, Norae and Dong (hereinafter together the Norae defendants) moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. The plaintiff opposed the motion, and the Supreme Court granted that branch of the motion.To hold a party liable under theories of negligent hiring, negligent retention, or negligent supervision, a plaintiff must establish that the party knew or should have known that the employee had violent propensities, or a propensity for the conduct which caused the plaintiff’s alleged injuries (see Weinfeld v. HR Photography, Inc., 149 AD3d 1014, 1015-1016; DeJesus v. DeJesus, 132 AD3d 721, 722). Here, the Norae defendants established their prima facie entitlement to judgment as a matter of law on the negligent hiring and retention cause of action. In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325). Accordingly, the Supreme Court properly granted that branch of the Norae defendants’ motion which was for summary judgment dismissing that cause of action insofar as asserted against them.“The essential elements of the cause of action are conduct committed by a person acting under color of state law, which deprived the plaintiff of rights, privileges, or immunities secured… by the Constitution or laws of the United States” (Maio v. Kralik, 70 AD3d 1, 11-12 [internal quotation marks omitted]; see 42 USC §1983; DiPalma v. Phelan, 81 NY2d 754, 756). The Norae defendants also established their prima facie entitlement to judgment as a matter of law on the cause of action based on 42 USC §1983. In opposition, the plaintiff failed to raise a triable issue of fact as to whether his arrest and ensuing criminal charges resulted from any action of the Norae defendants under color of state law on February 7, 2011 (see Alvarez v. Prospect Hosp., 68 NY2d at 324-325). ”[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to withstand summary judgment (Zuckerman v. City of New York, 49 NY2d 557, 562; Javaheri v. Old Cedar Dev. Corp., 84 AD3d 881, 887 [internal quotation marks omitted]). Accordingly, the Supreme Court properly granted that branch of the Norae defendants’ motion which was for summary judgment dismissing that cause of action insofar as asserted against them.DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Chambers, Maltese and Barros, JJ.PEOPLE, etc., res, v. Akeem Deane, ap — (Ind. No. 2038/11)Paul Skip Laisure, New York, NY (Dina Zloczower of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Camille O’Hara Gillespie, and Sullivan & Cromwell LLP [Maya Krugman], of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mark Dwyer, J.), rendered December 12, 2013, convicting him of murder in the second degree, criminal possession of a weapon in the fourth degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant was charged with, inter alia, murder in the second degree. During trial, the trial court asked defense counsel if he wished to pursue the affirmative defense of extreme emotional disturbance. Defense counsel explicitly chose not to pursue the defense. On appeal, the defendant argues that he was deprived of a fair trial by the court’s failure to charge the jury on the defense of extreme emotional disturbance. Since the defendant specifically waived the right to a charge on extreme emotional disturbance, the trial court’s failure to so charge did not constitute error (see People v. Brown, 262 AD2d 569; see also People v. Petrovich, 87 NY2d 961; People v. Feris, 144 AD2d 691), and did not deprive the defendant of a fair trial.The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).DILLON, J.P., CHAMBERS, MALTESE and BARROS, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Darryl Cohen, ap — (Ind. No. 745/12)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Charles Lopresto, J.), rendered December 3, 2013, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant validly waived his right to appeal (see People v. Sanders, 25 NY3d 337). The defendant’s valid waiver of his right to appeal precludes review of his contention that he was deprived of the effective assistance of counsel, since that contention does not relate to the voluntariness of his plea of guilty (see People v. Eccleston, 113 AD3d 699, 699; People v. Hluboky, 99 AD3d 1020, 1021).Although the defendant’s valid waiver of his right to appeal does not preclude review of his challenge to the legality of his sentence as a persistent violent felony offender, the defendant failed to preserve his contention for appellate review (see People v. Simpson, 152 AD3d 627, 627; People v. DelCarpio, 101 AD3d 746, 746-747). Under the circumstances of this case, we decline to exercise our interest of justice jurisdiction to review it.SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Mastro, Roman, Lasalle and Christopher, JJ.PEOPLE, etc., res, v. James Darrow, ap — (Ind. No. 2769-15)Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Suffolk County (John J. Toomey, Jr., J.), imposed August 1, 2016, on the ground that the sentence was excessive.ORDERED that the sentence 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. Bryant, 28 NY3d 1094, 1096; People v. Sanders, 25 NY3d 337, 341-342; People v. Lopez, 6 NY3d 248, 257).SCHEINKMAN, P.J., MASTRO, ROMAN, LASALLE and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros and Brathwaite Nelson, JJ.A/SL DFV, LLC, res, v. C.A.R.S. Construction, LLC ap — (Index No. 15324/11)In an action to foreclose a mortgage, the defendants appeal from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), dated January 21, 2016. The order, insofar as appealed from, granted the plaintiff’s motion for summary judgment on the complaint and dismissing the defendants’ counterclaims.ORDERED that the order is affirmed insofar as appealed from, with costs.In May 2008, the defendant C.A.R.S. Construction, LLC (hereinafter CARS), obtained a construction loan from Hudson Valley Bank (hereinafter the bank). The construction loan was secured by a mortgage on certain real property. The loan was further guaranteed by the defendants Romaz Properties, Ltd., Robert Romeo, and Carmella Maria Holland. Allegedly, the defendants defaulted on the mortgage by failing to pay the full sum due upon the maturity of the note.The bank commenced this action to foreclose the mortgage. The defendants asserted counterclaims alleging that the bank breached the construction loan agreement by unjustifiably refusing to advance to CARS all of the proceeds of the loan. Meanwhile, the bank assigned the loan to VFC Partners 19, LLC (hereinafter VFC), and VFC was substituted as the plaintiff. VFC moved, inter alia, for summary judgment on the complaint and dismissing the defendants’ counterclaims. The defendants opposed the motion. The Supreme Court granted VFC’s motion, and the defendants appeal. In November 2016, the subject note and mortgage were sold and assigned to A/SL DFV, LLC. In May 2017, the Supreme Court issued an order substituting A/SL DFV, LLC, as the plaintiff and amending the caption accordingly. By decision and order on motion dated October 3, 2017, this Court, inter alia, substituted A/SL DFV, LLC, for VFC as the respondent on the appeal.We agree with the Supreme Court’s determination to grant VFC’s motion for summary judgment on the complaint and dismissing the defendants’ counterclaims. In a mortgage foreclosure action, the plaintiff establishes a prima facie entitlement to judgment as a matter of law by submitting the mortgage, the unpaid note, and evidence of default (see North Am. Sav. Bank, FSB v. Esposito-Como, 141 AD3d 706, 708; Pennymac Holdings, LLC v. Tomanelli, 139 AD3d 688, 689; Wells Fargo Bank, N.A. v. Hallock, 138 AD3d 735, 735; Bayview Loan Servicing, LLC v. 254 Church St., LLC, 129 AD3d 650, 650; Sperry Assocs. Fed. Credit Union v. Alexander, 116 AD3d 759, 759; Wachovia Bank, N.A. v. Carcano, 106 AD3d 724, 725). Here, VFC established its prima facie entitlement to judgment as a matter of law by submitting a copy of the mortgage, the unpaid note, and evidence of the default (see North Am. Sav. Bank, FSB v. Esposito-Como, 141 AD3d at 708; Pennymac Holdings, LLC v. Tomanelli, 139 AD3d at 689; Wachovia Bank, N.A. v. Carcano, 106 AD3d at 725).In opposition, the defendants failed to demonstrate the existence of a triable issue of fact as to a bona fide defense (see North Am. Sav. Bank, FSB v. Esposito-Como, 141 AD3d at 708; Bayview Loan Servicing, LLC v. 254 Church St., LLC, 129 AD3d at 651; Sperry Assocs. Fed. Credit Union v. Alexander, 116 AD3d at 759; Wells Fargo Bank, N.A. v. Webster, 61 AD3d 856, 856). The defendants’ contention that the bank unreasonably withheld proceeds of the loan from CARS is refuted by evidence that CARS made representations to the bank that it would not be able to satisfy all of its obligations under the loan. Under the terms of the construction loan agreement, these representations provided the bank with a valid basis for withholding proceeds of the loan.SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.Tae Young Lee ap, v. Village of Airmont def, County of Rockland, res — (Index No. 35021/13)In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Rockland County (Victor J. Alfieri, Jr., J.), entered October 26, 2015. The order denied the plaintiffs’ motion to vacate a prior order of the same court dated June 11, 2015, granting that branch of the motion of the defendant County of Rockland which was for summary judgment dismissing the complaint insofar as asserted against it, upon their failure to oppose that motion, and thereupon to deny that branch of the motion.ORDERED that the order entered October 26, 2015, is affirmed, with costs.In September 2013, the plaintiffs commenced this action against the defendants, Village of Airmont, Town of Ramapo, and County of Rockland, to recover damages for personal injuries. The complaint alleged that the car being driven by the plaintiff Tae Young Lee and owned by the plaintiff Hai R. Lee came into contact with a manhole cover near the intersection of Smith Hill Road and Eros Drive in Rockland County.The County moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it on the ground that it was not responsible for the subject manhole cover. In support, the County submitted an affidavit from its Superintendent of Highways, as well as deposition testimony from its Director of Plant Facilities, the Village’s Clerk/Treasurer, and the Town’s Director of Public Works, all of whom stated that the County was not responsible for the manhole cover. In an order dated June 11, 2015, the Supreme Court granted that branch of the County’s motion, finding that the County established that it was not responsible for the manhole cover. The court noted that the motion was unopposed.Two months later, the plaintiffs moved to vacate the order dated June 11, 2015. In support, they submitted their attorney’s affirmation, which stated that “[d]ue to the fact that the handling lawyer of this case quit the affirmant’s firm, and did not notify anyone that she did not submit the affirmation in opposition to Defendant’s motion, the deadline to submit the opposition was missed.” In the order appealed from, the Supreme Court denied the plaintiffs’ motion, finding, inter alia, that the plaintiffs failed to establish a reasonable excuse for their default. The plaintiffs appeal.A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Santos v. Penske Truck Leasing Co., 105 AD3d 1029; Political Mktg., Int’l, Inc. v. Jaliman, 67 AD3d 661, 661-662). ”A motion to vacate a default is addressed to the sound discretion of the court” (Vujanic v. Petrovic, 103 AD3d 791, 792).Here, the Supreme Court providently exercised its discretion in denying the plaintiffs’ motion to vacate the order dated June 11, 2015. Contrary to the plaintiff’s contention, the evidence they submitted failed to establish a reasonable excuse for their default (cf. Brown v. Ryder Truck Rental, 172 AD2d 477). In any event, the plaintiffs submitted no evidence to contradict the County’s showing that it was not responsible for the maintenance of the subject manhole cover (see generally Kovalsky v. Village of Yaphank, 235 AD2d 459, 460). Thus, the plaintiffs failed to demonstrate that they had a potentially meritorious opposition to the motion.In view of the foregoing, we do not address the plaintiff’s remaining contentions.SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.PEOPLE, etc., res, v. Anthony Bragg, ap — (Ind. No. 4096/14)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), rendered June 26, 2015, as amended July 7, 2015, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment, as amended, is affirmed.The defendant’s contention that the Supreme Court’s Sandoval ruling (see People v. Sandoval, 34 NY2d 371) deprived him of his constitutional right to a fair trial is unpreserved for appellate review, as he did not raise any constitutional challenge to the Sandoval ruling before the trial court (see CPL 470.05[2]; People v. Wheelings, 137 AD3d 1310, 1311). In any event, the court’s Sandoval ruling was not an improvident exercise of discretion. The court properly balanced the probative value of the defendant’s prior convictions with respect to the issue of the defendant’s credibility against the risk of unfair prejudice to the defendant (see People v. Paige, 88 AD3d 912, 912; People v. Celleri, 29 AD3d 707, 709).The defendant’s contention that certain comments made by the prosecutor during her opening statement and summation were improper and deprived him of a fair trial is unpreserved for appellate review, since the defendant either failed to object to the remarks he now challenges, or made only a general one-word objection and failed to either request additional instructions when the trial court gave curative instructions or move for a mistrial based on the sustained objection (see CPL 470.05[2]; People v. Martin, 116 AD3d 981; People v. Allen, 114 AD3d 958; People v. Morel, 297 AD2d 757). In any event, the defendant’s contention is without merit, as most of the remarks were either fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to the defendant’s summation, or permissible rhetorical comment (see People v. Young, 141 AD3d 551, 552; People v. Martin, 116 AD3d at 982-983; People v. Allen, 114 AD3d at 959). To the extent that some of the prosecutor’s remarks made during her opening statement and summation were improper, those remarks did not deprive the defendant of a fair trial, and any other error in this regard was harmless (see People v. Crimmins, 36 NY2d 230, 241-242; People v. Roscher, 114 AD3d 812, 813; People v. Walston, 196 AD2d 903, 904).At the request of the prosecutor, the Supreme Court precluded the defense counsel from arguing in her summation that the testimony of a detective that the defendant consented to provide a buccal swab of his DNA for testing demonstrated the defendant’s consciousness of innocence. The defendant’s contention on appeal that the preclusion of this summation argument deprived him of his constitutional right to present a defense is unpreserved for appellate review (see CPL 470.05[2]; People v. Taylor, 40 AD3d 782, 783), and, in any event, without merit (see People v. Ross, 56 AD3d 380, 380-381).RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros and Brathwaite Nelson, JJ.MATTER of John Sestito, pet, v. City of White Plains res — (Index No. 2937/15)Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of Public Safety of the City of White Plains dated May 4, 2015. The determination adopted the recommendations of a hearing officer dated April 22, 2015, made after a hearing, and terminated the petitioner’s benefits under General Municipal Law §207-a.ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.The petitioner, a firefighter, allegedly was injured while performing his duties on May 22, 2011. He subsequently applied for benefits pursuant to General Municipal Law §207-a. In 2014, after an examination, the respondents’ medical examiner found that the petitioner was capable of returning to light duty and that there would be a “medium to moderate” chance that he would be able to resume full duty if he underwent spinal fusion surgery. Thereafter, the respondents’ fire chief sent the petitioner a letter ordering him to return to work on October 1, 2014, to assume a light duty position, or risk losing his benefits. A second letter sent by the fire chief awarded the petitioner General Municipal Law §207-a benefits for the period from May 22, 2011, to October 1, 2014. It also directed the petitioner to schedule the fusion surgery. The petitioner did not return to work on October 1, 2014, and did not undergo surgery, choosing instead to proceed with a challenge of the return to work order.After a hearing, the hearing officer concluded that the fire chief’s orders were “reasonable and rational,” and that the petitioner’s failure to comply with those orders was without justification. The respondents adopted the recommendations of the hearing officer. The petitioner commenced this CPLR article 78 proceeding to review the determination.The petitioner argues that the respondents’ determination is not supported by substantial evidence. We disagree. ”Substantial evidence means more than a mere scintilla of evidence and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides” (Matter of Solano v. City of Mount Vernon, 108 AD3d 676, 677 [internal quotation marks omitted]). Here, there was substantial evidence to support the determination that the petitioner was fit to return to light duty and that surgery was a reasonable and appropriate treatment. Since the petitioner failed to return to work for his light duty assignment, and did not undergo surgery, his benefits were properly terminated (see Matter of Pirrone v. Town of Wallkill, 6 AD3d 447; Matter of Schenectady Police Benevolent Assn. v. New York State Pub. Empl. Relations Bd., 196 AD2d 171, 174, affd 85 NY2d 480).The parties’ remaining contentions are without merit.SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Barros, Iannacci and Christopher, JJ.MATTER of Valerie D. Weiss, ap, v. Jessica R. Weiss res-res, et al., res — (Proceeding No. 1)MATTER of Valerie D. Weiss, ap, v. Orange County Department of Social Services res — (Proceeding No. 2) (Docket Nos. V-710-14, V-317-15)The Virdone Law Firm, P.C., Westbury, NY (John Virdone of counsel), for appellant.Michael D. Meth, Chester, NY, for respondent-respondent Jessica R. Weiss in Proceeding No. 1.Langdon C. Chapman, County Attorney, Goshen, NY (Christine Foy-Stage and Peter Schwarz of counsel), for respondent-respondent Orange County Department of Social Services in Proceeding No. 1 and respondent Orange County Department of Social Services in Proceeding No. 2.Ronna L. DeLoe, New Rochelle, NY, attorney for the child.In related proceedings pursuant to Family Court Act article 6, the maternal grandmother appeals from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated December 16, 2016. The order, upon remittitur from this Court by two decisions and orders dated August 3, 2016, and after a hearing, denied the maternal grandmother’s petition for custody of the subject child and her petition for visitation with the child.ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof denying the maternal grandmother’s petition for visitation with the subject child, and substituting therefor a provision granting that petition and awarding the maternal grandmother supervised visitation with the child; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Orange County, for further proceedings before a different Judge to determine appropriate visitation between the maternal grandmother and the child.The maternal grandmother commenced a proceeding pursuant to Family Court Act article 6 for custody of the subject child two months before the Orange County Department of Social Services (hereinafter DSS) commenced proceedings against the mother, inter alia, pursuant to Social Services Law §384-b, seeking to terminate her parental rights and free the child for adoption (hereinafter the termination proceedings). The Family Court deferred consideration of the grandmother’s custody petition until after the termination proceedings were concluded. When the mother failed to appear for a continued fact-finding hearing in the termination proceedings, the court proceeded with an inquest and thereafter issued orders of fact-finding and disposition, upon the mother’s default, terminating her parental rights on the grounds of mental illness and permanent neglect, and freeing the child for adoption. In January 2015, the court dismissed the grandmother’s custody petition, without a hearing, on the ground that she lacked standing.Subsequently, the maternal grandmother commenced a proceeding seeking visitation with the child. The Family Court dismissed the visitation petition, without a hearing, on the basis that the grandmother lacked standing to seek visitation as a result of the previous termination of the mother’s parental rights. On prior appeals, this Court reversed the orders dismissing the grandmother’s petitions for custody and visitation, reinstated the petitions, and remitted the matters to the Family Court, Orange County, for a hearing to be conducted in the context of the dispositional hearing directed on the mother’s appeal in the related termination proceedings (see Matter of Weiss v. Weiss, 142 AD3d 507; Matter of Weiss v. Orange County Dept. of Social Servs., 142 AD3d 505; Matter of Isabella R.W. [Jessica W.], 142 AD3d 503). After the hearing upon remittitur, the court denied the grandmother’s petitions, determining that she lacked standing to seek custody or visitation and, in any event, the child’s best interests would not be served by awarding the grandmother custody or visitation. The grandmother appeals.Contrary to the Family Court’s determination, the maternal grandmother had standing to seek custody of the child, who was in foster care (see Domestic Relations Law §72[2][a]; Matter of Bennett v. Jeffreys, 40 NY2d 543, 546; Matter of Weiss v. Weiss, 142 AD3d at 508). However, the court providently exercised its discretion in determining that the child’s best interests would not be served by an award of custody to the grandmother. A grandparent “takes no precedence for custody over the adoptive parents selected by an authorized agency” (Matter of Violetta K. v. Mary K., 306 AD2d 480, 481; see Matter of Patricia I.H. v. ACS-Kings, 140 AD3d 1165, 1166). Here, the child has resided with the foster parents for virtually her entire life and is thriving in their home. It is in her best interests to continue that stable relationship, rather than be removed to the custody of her maternal grandmother (see Matter of Quida H. v. Sara H., 127 AD3d 971, 972; Matter of James v. Hickey, 6 AD3d 536, 537). Accordingly, the court providently exercised its discretion in denying the grandmother’s custody petition.A biological grandparent may seek visitation with a child even after parental rights have been terminated or the child has been freed for adoption (see People ex rel. Sibley v. Sheppard, 54 NY2d 320, 326; Matter of Weiss v. Orange County Dept. of Social Servs., 142 AD3d at 505-506). Where a grandparent seeks visitation pursuant to Domestic Relations Law §72(1), the court must undertake a two-part inquiry (see Matter of E.S. v. P.D., 8 NY3d 150, 157). First, the court must determine if the grandparent has standing to petition for visitation based on the death of a parent or equitable circumstances (see Domestic Relations Law §72[1]; Matter of E.S. v. P.D., 8 NY3d at 157; see also Matter of Emanuel S. v. Joseph E., 78 NY2d 178, 181-182). Where the court concludes that the grandparent has established standing, the court must then determine whether visitation with the grandparent is in the best interests of the child (see Domestic Relations Law §72[1]; Matter of E.S. v. P.D., 8 NY3d at 157; Matter of Emanuel S. v. Joseph E., 78 NY2d at 181; Matter of Brancato v. Federico, 118 AD3d 986). In determining whether equitable circumstances confer standing, the court must examine all relevant facts (see Matter of Emanuel S. v. Joseph E., 78 NY2d at 182). ”[A]n essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship” (id.; see Matter of Luft v. Luft, 123 AD3d 831; Matter of Sherman v. Hughes, 32 AD3d 959, 960). A grandparent must establish an existing relationship or sufficient efforts to establish one that have been unjustifiably frustrated by the parent (see Matter of Emanuel S. v. Joseph E., 78 NY2d at 182; Matter of Vandenburg v. Vandenburg, 137 AD3d 1498, 1498-1499; Matter of Kalkstein v. Rist, 78 AD3d 947, 948).Here, the evidence demonstrated that the maternal grandmother developed a relationship with the child early on in her life and thereafter made repeated efforts to continue that relationship (see Matter of Vandenburg v. Vandenburg, 137 AD3d at 1499). Accordingly, the Family Court’s determination that the grandmother lacked standing to seek visitation was not supported by a sound and substantial basis in the record. Moreover, visitation with the grandmother would be in the child’s best interests. The grandmother had consistent visitation with the child until the DSS ceased allowing such visitation in November 2014. By all accounts, the grandmother’s visitations conducted separately from the mother’s visitations were positive, and the attorney for the child in the Family Court took the position that the child’s best interests would be served by visitation with the grandmother conditioned on the requirement that the mother not be present for the visitation (see Matter of Madelyn Z. v. Daniel AA., 154 AD3d 1092). Considering all of the circumstances, visitation with the grandmother would be in the child’s best interests (see Matter of Peralta v. Irrizary, 76 AD3d 561, 562).The grandmother’s remaining contention is without merit (see Matter of Lincoln v. Lincoln, 24 NY2d 270, 273-274; Matter of Murphy v. Lewis, 149 AD3d 748, 750).BALKIN, J.P., BARROS, IANNACCI and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Barros, Iannacci and Christopher, JJ.MATTER of Isabella R. W. (Anonymous). Orange County Department of Social Services, res; Jessica W. (Anonymous), ap — (Docket Nos. B-1545-14, B-1841-14)Ronna L. DeLoe, New Rochelle, NY, attorney for the child.In related proceedings pursuant to Social Services Law §384-b and Family Court Act article 6, the mother appeals from two orders of disposition of the Family Court, Orange County (Lori Currier Woods, J.), both dated January 20, 2017. The orders, insofar as appealed from, upon remittitur from this Court by decision and order dated August 3, 2016, and after a dispositional hearing, terminated the mother’s parental rights on the grounds of permanent neglect and mental illness, respectively, and transferred custody and guardianship of the child to the Orange County Department of Social Services for the purpose of adoption.ORDERED that the orders are affirmed insofar as appealed from, without costs or disbursements.The subject child was born in June 2012. Three months later, the child was removed from her mother’s care and placed in foster care. In 2014, the Orange County Department of Social Services (hereinafter the DSS) commenced these proceedings pursuant to Social Services Law §384-b and Family Court Act article 6 to terminate the mother’s parental rights on the grounds of mental illness and permanent neglect, respectively. After the mother failed to appear at a continued fact-finding hearing, the Family Court completed the hearing as an inquest and made factual findings, upon the mother’s default, that the petitions were established. The court determined that a dispositional hearing was unwarranted and immediately made dispositions, upon the mother’s default, terminating the mother’s parental rights and freeing the child for adoption. In an order dated February 4, 2015, the court denied the mother’s motion pursuant to CPLR 5015(a)(1) to vacate the orders of fact-finding and disposition. On the mother’s appeal, this Court modified the order dated February 4, 2015, so as to grant that branch of her motion which was to vacate the dispositional portions of the orders of fact-finding and disposition. This Court otherwise affirmed the order dated February 4, 2015, and remitted the matter to the Family Court, Orange County, for a dispositional hearing and new dispositions thereafter (see Matter of Isabella R.W. [Jessica W.], 142 AD3d 503).Following the dispositional hearing upon remittitur, the Family Court determined that the child’s best interests would be served by terminating the mother’s parental rights and freeing the child for adoption. In two orders of disposition dated January 20, 2017, the court determined that the mother permanently neglected the child and that she is a mentally ill parent as defined in Social Services Law §384-b(6)(a), terminated her parental rights, and transferred custody and guardianship of the child to the DSS for the purpose of adoption. The mother appeals from so much of the orders as terminated her parental rights and transferred custody and guardianship of the child to the DSS for the purpose of adoption.At the dispositional stage of a proceeding to terminate parental rights, the court focuses solely on the best interests of the child, and there shall be no presumption that such interests will be promoted by any particular disposition (see Family Ct Act §631; Matter of Star Leslie W., 63 NY2d 136, 147-148; Matter of Adams v. Administration for Children’s Services-Queens, 122 AD3d 840). The court may: (1) dismiss the petition if the allegations are not established; (2) suspend judgment for up to one year; or (3) terminate parental rights, freeing the child for adoption (see Family Ct Act §§631, 633[b]). Contrary to the mother’s contention, the Family Court properly determined that the child’s best interests would be served by terminating her parental rights and freeing the child for adoption by the foster parents, with whom the child has resided for virtually her entire life and is thriving (see Matter of Shaolin E.P. [Jettris P.], 91 AD3d 954, 955; Matter of Keynyha Shante Marie B. [Craig B.], 76 AD3d 1063, 1063; Matter of “Baby Boy” E., 42 AD3d 536, 536-537).BALKIN, J.P., BARROS, IANNACCI and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Roman, Duffy and Connolly, JJ.Dora Fuzaylova, ap, v. 63-28 99th St. Farm Ltd., et al., def, Dasshan S. Bagga, respondent (and a third-party action). (Index No. 25993/11)In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered September 21, 2015, as granted that branch of the motion of the defendant Dasshan S. Bagga which was for summary judgment dismissing the complaint insofar as asserted against him.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell at the entrance of a grocery store operated by the defendant 63-28 99th St. Farm Ltd., located on premises owned by the defendant Dasshan S. Bagga. Bagga moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him on the ground that he was an out-of-possession landlord with no duty to maintain the premises. The Supreme Court granted that branch of Bagga’s motion, and the plaintiff appeals.“An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a ‘duty imposed by statute or assumed by contract or a course of conduct’” (Casson v. McConnell, 148 AD3d 863, 864, quoting Alnashmi v. Certified Analytical Group, Inc., 89 AD3d 10, 18). Here, where the complaint sounds in common-law negligence and the plaintiff does not allege the violation of a statute, Bagga demonstrated his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him by establishing that he was an out-of-possession landlord who was not bound by contract or course of conduct to maintain the premises (see Santos v. 786 Flatbush Food Corp., 89 AD3d 828, 829). The mere reservation of a right to reenter the premises to make repairs does not impose an obligation on the landlord to maintain the premises (see Star v. Berridge, 77 NY2d 899, 901). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, we agree with the Supreme Court’s granting of that branch of Bagga’s motion which was for summary judgment dismissing the complaint insofar as asserted against him.RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.By Mastro, J.P.; Leventhal, Barros and Brathwaite Nelson, JJ.MATTER of Carmen S. Veras, ap, v. Eddie Padilla, res — (Proceeding No. 1)MATTER of Eddie Padilla, res, v. Carmen S. Veras, ap — (Proceeding No. 2) (Docket Nos. V-5194-15, V-5195-15, V-10002-15, V-10003-15)Steven P. Forbes, Jamaica, NY, for appellant.David Laniado, Cedarhurst, NY, for respondent.Esther Kind, Fresh Meadows, NY, attorney for the children.In related proceedings pursuant to Family Court Act article 6, the maternal aunt appeals from (1) a decision of the Family Court, Queens County (Craig Ramseur, Ct. Atty. Ref.), dated September 7, 2016, and (2) an order of the same court, also dated September 7, 2016. The order, upon the decision, made after a hearing, dismissed the maternal aunt’s custody petition for lack of standing.ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Matter of Ania N. [Marzena N.], 138 AD3d 862; Schicchi v. J.A. Green Constr. Corp., 100 AD2d 509); and it is further,ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for an expedited hearing and a new determination as to whether the aunt has standing to seek custody of the children based on the existence of extraordinary circumstances and, if warranted, a determination on the merits of her custody petition.Prior to her death, the mother had sole custody of the subject children. Following the mother’s death, the children moved into the maternal aunt’s home, and the maternal aunt filed a petition for custody of the children. The father also filed a custody petition. After a hearing, the Family Court dismissed the aunt’s petition on the ground that she lacked standing to seek custody, and awarded sole custody of the children to the father. The aunt appeals.On this appeal, “[w]e have no occasion to apply the proper legal test to the facts at hand” (Matter of Michael B., 80 NY2d 299, 317). This Court has been informed by the attorney for the children that, during the pendency of the appeal, a child protective proceeding pursuant to Family Court Act article 10 was commenced against the father, and the children were ordered removed from the father’s care based upon allegations of, inter alia, domestic violence, inadequate housing, and threats made by the father to the Administration for Children’s Services, which resulted in the arrest and incarceration of the father. Although these new allegations are dehors the record, they are considered in these child custody proceedings to the extent they indicate that the record before us may no longer be sufficient for determining the father’s fitness and right to custody of the children (see id. at 317-318; Matter of Baptiste v. Gregoire, 140 AD3d 746, 747-748). The new circumstances require remittal to the Family Court for an expedited hearing and a new determination as to whether the aunt has standing to seek custody of the children based on the existence of extraordinary circumstances and, if warranted, a determination on the merits of her custody petition.Accordingly, we remit the matter to the Family Court, Queens County, for a hearing and determination on those issues. We express no opinion as to the appropriate determination (see Matter of Baptiste v. Gregoire, 140 AD3d at 748).MASTRO, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Austin, Connolly and Iannacci, JJ.Anne Juerss, etc. ap, v. Millbrook Central School District res — (Index No. 2272/15)In an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated November 9, 2015. The order granted the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint and denied the plaintiffs’ cross motion pursuant to CPLR 3025(b) for leave to serve an amended complaint.ORDERED that the order is affirmed, with costs.On May 6, 2014, the plaintiffs’ decedent was suspended from Millbrook Middle School after the school’s principal concluded that the decedent had engaged in an act of student misconduct. That evening, the decedent committed suicide. Thereafter, the plaintiffs, as administrators of the decedent’s estate, commenced this action, inter alia, to recover damages for wrongful death against the school’s principal, Millbrook Central School District, and the Board of Education of Millbrook Central School District. The plaintiffs alleged that the decedent’s suicide was caused by the defendants’ negligent investigation into the allegation of student misconduct and their negligent training of school staff in investigative procedures.The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. The plaintiffs cross-moved pursuant to CPLR 3025(b) for leave to serve an amended complaint. The Supreme Court granted the defendants’ motion and denied the plaintiffs’ cross motion. The plaintiffs appeal.In considering a motion to dismiss pursuant to CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275). ”[T]he pleading must be liberally construed, the factual allegations must be deemed true, and the pleading party must be accorded the benefit of every possible favorable inference” (Michaan v. Gazebo Hort., Inc., 117 AD3d 692, 692; see Leon v. Martinez, 84 NY2d 83, 87).Applying these principles here, we agree with the Supreme Court’s determination to grant the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint. New York does not recognize a cause of action sounding in negligent investigation (see Hines v. City of New York, 142 AD3d 586, 587; Medina v. City of New York, 102 AD3d 101, 108; Mislin v. City of Tonawanda School Dist., 72 AD3d 1627). Moreover, “a claim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York” (Brown v. State of New York, 45 AD3d 15, 26 [internal quotation marks omitted]; see Russ v. State Empls. Fed. Credit Union [SEFCU], 298 AD2d 791, 793).The Supreme Court providently exercised its discretion in denying the plaintiffs’ cross motion for leave to serve an amended complaint. Although leave to amend a pleading should be freely given in the absence of prejudice or surprise to the opposing party (see CPLR 3025[b]), the motion should be denied where the proposed amendment is palpably insufficient or patently devoid of merit (see APF Mgt. Co., LLC v. Munn, 151 AD3d 668, 670; Mastrokostas v. 673 Madison, LLC, 109 AD3d 459, 460). Here, the proposed amendment was palpably insufficient and, thus, we agree with the court’s determination to deny the cross motion (see Moreno v. City of New York, 27 AD3d 536, 537).RIVERA, J.P., AUSTIN, CONNOLLY and IANNACCI, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Rene Herrera, ap — (Ind. No. 2925/14)Norman A. Olch, New York, NY, for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, John N. Ferdenzi, Tina Grillo, and Deborah Wassel of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (Richard Buchter, J.), rendered May 6, 2016, convicting him of course of sexual conduct against a child 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), 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; People v. Bleakley, 69 NY2d 490, 495). 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 contends that the Supreme Court unfairly curtailed defense counsel’s summation by sustaining the prosecutor’s objection to defense counsel’s comments regarding the prosecution’s expert. This contention is without merit. Defense counsel exceeded the bounds of fair comment by calling upon the jury to draw conclusions which were not fairly inferable from the evidence (see People v. Ashwal, 39 NY2d 105, 109-110; People v. Andrews, 131 AD2d 580, 581).The defendant’s contention that certain remarks made by the prosecutor during summation constituted reversible error is unpreserved for appellate review, since he either failed to object to the remarks at issue, or made only a general objection, and he failed to make a timely motion for a mistrial on the specific grounds he now asserts on appeal (see CPL 470.05[2]; People v. Romero, 7 NY3d 911, 912; People v. Martin, 116 AD3d 981, 982; People v. Arena, 70 AD3d 1044, 1047). In any event, the challenged portions of the prosecutor’s summation were fair comment on the evidence and the reasonable inferences to be drawn therefrom, were fair response to the defense counsel’s summation, and were within the bounds of permissive rhetorical comment (see People v. Galloway, 54 NY2d 396, 399; People v. Ashwal, 39 NY2d at 109-110; People v. Martin, 116 AD3d at 982).The Supreme Court providently exercised its discretion in redacting a portion of a recording of a telephone call between the victim’s mother and the defendant that was monitored by a detective. The court redacted the recording to exclude a comment made by the mother to the detective after the conversation with the defendant was over. Contrary to the defendant’s contention, the mother’s comment was not admissible as an excited utterance or a present sense impression (see People v. Cantave, 21 NY3d 374, 382; People v. Carroll, 95 NY2d 375, 385), or under the rule of completeness (cf. People v. Torre, 42 NY2d 1036, 1037; People v. Dlugash, 41 NY2d 725, 736).Defense counsel’s failure to request an intoxication charge did not amount to ineffective assistance of counsel inasmuch as this charge would have been inconsistent with the defense theory that there was no sexual contact with the victim (see People v. Ackerman, 141 AD3d 948, 950; People v. Pacheco, 135 AD2d 744, 745). Although the defendant could have chosen to present inconsistent defenses, such a strategic risk “is not one that the court may foist on an unwilling defendant” (People v. Bradley, 88 NY2d 901, 903). As such, the Supreme Court did not err in failing to charge the jury on intoxication, sua sponte, since the defendant’s theory at trial was that he did not commit the assaults (see People v. Bradley, 88 NY2d at 903-904).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).The defendant’s remaining contention is without merit.CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Dillon, J.P.; Leventhal, Connolly and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Kenneth Rogers, ap — (Ind. No. 1989/04)Paul Skip Laisure, New York, NY (Yvonne Shivers of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Nancy Fitzpatrick Talcott of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robert Charles Kohm, J.), rendered June 9, 2015, convicting him of burglary in the second degree, possession of burglar’s tools, petit larceny, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.At trial, the People’s main eyewitness, a retired police officer, testified that, while planting flowers in front of his home, he saw the defendant, who he had never seen before, enter a house across the street. After the defendant entered the house, the retired police officer heard loud banging noises emanating from inside the house, saw the defendant exit the house carrying a laundry bag, was unable to obtain a plausible answer from the defendant as to the reason for his presence there, and immobilized the defendant until police officers arrived shortly thereafter. When the police officers arrived, they found that the defendant had a watch, rings, and a screwdriver on his person, and the laundry bag he was carrying contained a power drill and a water bottle filled with loose currency. The residents of the second floor apartment inside the house testified that the apartment had been ransacked, and its front door had been kicked in. Moreover, the residents of that apartment testified that the items found on the defendant, a man they did not know, belonged to them and had been secured inside their apartment earlier that day.Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt of burglary in the second degree, possession of burglar’s tools, petit larceny, and criminal possession of stolen property in the fifth degree beyond a reasonable doubt (see People v. Borges, 90 AD3d 1067, 1067-1068; People v. Diaz, 53 AD3d 504, 505). Moreover, 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), 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; People v. Bleakley, 69 NY2d 490, 495). 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 contentions that, during her summation, the prosecutor vouched for the credibility of witnesses, misrepresented the facts, shifted the burden of proof, denigrated the defense, and inflamed the jury, are unpreserved for appellate review. The defendant either failed to object to the comments, failed to request further curative instructions after his objection was granted, or failed to timely move for a mistrial on the specific grounds he now asserts on appeal (see CPL 470.05[2]; People v. Balls, 69 NY2d 641, 642; People v. Salnave, 41 AD3d 872, 874; People v. Wright, 5 AD3d 873, 875). In any event, the challenged remarks were either fair comment on the evidence (see People v. Ashwal, 39 NY2d 105), fair response to arguments and theories presented in the defense summation (see People v. Galloway, 54 NY2d 396; People v. Moore, 29 AD3d 825, 825-826), or harmless (see People v. Crimmins, 36 NY2d 230, 241-242; People v. Hill, 286 AD2d 777, 778).The defendant further contends that he was deprived of a fair trial when the prosecutor asked him on cross-examination whether various parts of the testimony of the People’s witnesses were accurate. The contention is unpreserved for appellate review because no objection was made to such questioning of the defendant at the trial (see People v. Lawrence, 4 AD3d 436, 437). In any event, the prosecutor’s cross-examination questions were not improper, but “both relevant and material to the credibility, veracity and honesty” of the defendant (People v. Coleman, 56 NY2d 269, 273).The defendant’s claim that he received ineffective assistance of counsel, which is based solely upon his counsel’s failure to preserve his current contentions regarding the prosecutor’s conduct during cross-examination and summation, is also without merit (see e.g. People v. High, 119 AD3d 959, 960).The defendant’s contention that his adjudication as a persistent felony offender was unconstitutional pursuant to Apprendi v. New Jersey (530 US 466) and its progeny is without merit (see People v. Giles, 24 NY3d 1066, 1068; People v. Bell, 15 NY3d 935, 936; People v. Dingle, 147 AD3d 1080, 1081). Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Miller, Nelson and Iannacci, JJ.PEOPLE, etc., res, v. Joseph Davis, ap — (Ind. No. 3044/13)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Stephen A. Knopf, J.), rendered February 13, 2015, convicting him of attempted burglary in the second degree and resisting arrest, upon a jury verdict, and imposing sentence.ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial.During the trial in this matter, an alternate juror briefly participated in deliberations with 11 sworn members of the jury while the12th sworn juror was absent from the jury room. The Supreme Court denied the defendant’s motion for a mistrial. The court then questioned each of the jurors about their ability to disregard the prior deliberations and start deliberations anew; each juror assured the court that he or she could do so. The court then denied the defendant’s renewed motion for a mistrial, and instructed the jurors that all deliberations that had taken place with the alternate juror were a nullity which must be disregarded by the jury, and that deliberations were to start “fresh, anew, ab initio, from the beginning.” After deliberations, the jury returned a verdict of guilty. The defendant appeals.The New York Constitution guarantees every criminal defendant a trial by jury (see NY Const, art I, §2). The constitutional right to a jury trial “includes the right to a jury of 12″ (People v. Page, 88 NY2d 1, 3). Pursuant to CPL 270.30, after the jury has retired to deliberate, the court must either, (1) with the consent of the defendant and the People, discharge the alternate jurors, or (2) direct the alternate jurors not to discuss the case and further direct that they be kept separate and apart from the regular jurors. CPL 310.10 prohibits anyone, including alternate jurors, from communicating with deliberating jurors.The error here not only violated CPL 270.30 and 310.10, but it deprived the defendant of his fundamental right to a trial by a jury of 12 (see People v. Page, 88 NY2d at 11; People v. Anderson, 70 NY2d 729, 730). The error was not cured by the Supreme Court’s instructions to the reconstituted jury. Accordingly, the judgment must be reversed and the matter remitted to the Supreme Court, Queens County, for a new trial.RIVERA, J.P., MILLER, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Chambers, J.P.; Hinds-Radix, Duffy and Lasalle, JJ.Diane Castro ap, v. Lawrence Durban, et al., def, Eileen Stenton res — (Index No. 7087/13)In a consolidated action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered September 17, 2015, and (2) a judgment of the same court entered October 19, 2015. The order, insofar as appealed from, granted that branch of the motion of the defendants Eileen Stenton, George Economou, Rebecca Tfelt, Karen Brooks, Cindy Sukhoo, Lauren Nehrebecki, Jennifer Gomez, Amy Bryson, Nicola Crosswell, Kathleen McGarry, Teresita Fabic-Lampa, Young Joo Lee, Irene Moser, and St. Francis Hospital, Roslyn, New York, a/k/a St. Francis Hospital, which was for summary judgment dismissing so much of the complaint as alleged that the defendant St. Francis Hospital, Roslyn, New York, a/k/a St. Francis Hospital, was vicariously liable for the alleged medical malpractice of the defendant Melissa Devlin. The judgment, insofar as appealed from, upon the order, is in favor of the defendant St. Francis Hospital, Roslyn, New York, a/k/a St. Francis Hospital, and against the plaintiffs dismissing so much of the complaint as alleged that that defendant was vicariously liable for the alleged medical malpractice of the defendant Melissa Devlin.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment is reversed insofar as appealed from, on the law, that branch of the motion of the defendants Eileen Stenton, George Economou, Rebecca Tfelt, Karen Brooks, Cindy Sukhoo, Lauren Nehrebecki, Jennifer Gomez, Amy Bryson, Nicola Crosswell, Kathleen McGarry, Teresita Fabic-Lampa, Young Joo Lee, Irene Moser, and St. Francis Hospital, Roslyn, New York, a/k/a St. Francis Hospital, which was for summary judgment dismissing so much of the complaint as alleged that the defendant St. Francis Hospital, Roslyn, New York, a/k/a St. Francis Hospital, was vicariously liable for the alleged medical malpractice of the defendant Melissa Devlin is denied, so much of the complaint as alleged that the defendant St. Francis Hospital, Roslyn, New York, a/k/a St. Francis Hospital, was vicariously liable for the alleged medical malpractice of the defendant Melissa Devlin is reinstated, and the order is modified accordingly; and it is further,ORDERED that one bill of costs is awarded to the plaintiffs.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]).The plaintiff Diane Castro was treated at the defendant St. Francis Hospital, Roslyn, New York, a/k/a St. Francis Hospital (hereinafter the Hospital), for a cyst located near her esophagus. After undergoing surgery to remove the cyst, Castro developed compartment syndrome in her left thigh. Castro, and her husband suing derivatively, commenced this action against the Hospital and numerous healthcare professionals, alleging, inter alia, medical malpractice in relation to her surgery and treatment. The Hospital and the defendants Eileen Stenton, George Economou, Rebecca Tfelt, Karen Brooks, Cindy Sukhoo, Lauren Nehrebecki, Jennifer Gomez, Amy Bryson, Nicola Crosswell, Kathleen McGarry, Teresita Fabic-Lampa, Young Joo Lee, and Irene Moser (hereinafter collectively the defendants) moved, inter alia, for summary judgment dismissing so much of the complaint as alleged that the Hospital was vicariously liable for the alleged medical malpractice of the defendant Melissa Devlin. The Supreme Court granted that branch of the motion on the ground that, in their bill of particulars, the plaintiffs did not identify Devlin as a physician for whom the Hospital could be held vicariously liable. A judgment in favor of the Hospital and against the plaintiff, inter alia, dismissing so much of the complaint as alleged that the Hospital was vicariously liable for the alleged malpractice of Devlin was entered. The plaintiffs appeal.We disagree with the Supreme Court’s determination in granting that branch of the defendants’ motion which was for summary judgment dismissing so much of the complaint as alleged that the Hospital was vicariously liable for the alleged medical malpractice of Devlin on the ground that that theory of liability was not alleged in the plaintiffs’ bill of particulars. That argument was first raised in the papers filed in reply to the plaintiffs’ opposition to the motion for summary judgment. The function of reply papers is to address arguments made in opposition to the position taken by the movant, not to introduce new arguments or new grounds for the requested relief (see Matter of Allstate Ins. Co. v. Dawkins, 52 AD3d 826). Since the plaintiffs did not have the opportunity to oppose the new argument in a surreply, the court should not have granted relief based upon that argument (see Matter of Harleysville Ins. Co. v. Rosario, 17 AD3d 677).On the merits, the general rule is that a hospital may not be held vicariously liable for the acts of a physician who is not an employee of the hospital, but is one of a group of independent contractors (see Hill v. St. Clare’s Hosp., 67 NY2d 72, 79; Keesler v. Small, 140 AD3d 1021, 1022). However, a hospital may be vicariously liable if a nonemployee physician acted as its agent or if it exercised control over the physician (see Schacherbauer v. University Assoc. in Obstetrics & Gynecology, P.C., 56 AD3d 751, 752; Mendez v. White, 40 AD3d 1057, 1058). Here, Devlin was an intensivist employed by the defendant Nassau Chest Physicians, P.C. (hereinafter Nassau Chest Physicians), who cared for Castro in the Hospital’s intensive care unit after surgery was performed. She was the sole intensivist on duty for all four of the Hospital’s intensive care units during her shift. Devlin only worked at the Hospital; she did not work for Nassau Chest Physicians at any other site. The Hospital claimed that she was not under its control and not its agent. However, the Hospital’s relationship with Nassau Chest Physicians and Devlin’s relationship with Nassau Chest Physicians were governed by written agreements, and those written agreements were not submitted in support of the motion. Since the defendants failed to submit this or other evidence establishing, prima facie, that Devlin was not under the Hospital’s control and not its agent when she rendered care to Castro, they failed to demonstrate their prima facie entitlement to judgment as a matter of law (see Schacherbauer v. University Assoc. in Obstetrics & Gynecology, P.C., 56 AD3d at 752; Mendez v. White, 40 AD3d at 1058; Gunther v. Staten Is. Hosp., 226 AD2d 427).Accordingly, that branch of the defendants’ motion which was for summary judgment dismissing so much of the complaint as alleged that the Hospital was vicariously liable for the alleged medical malpractice of Devlin should have been denied.CHAMBERS, J.P., HINDS-RADIX, DUFFY and LASALLE, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros and Brathwaite Nelson, JJ.Spiro M. Hiotidis res, v. Nicole Ramuni, ap — (Index No. 17676/11)In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Nassau County (Anthony L. Parga, J.), dated August 4, 2015. The judgment, upon a jury verdict finding that the plaintiff Spiro M. Hiotidis sustained a serious injury under the permanent consequential limitation of use category of Insurance Law §5102(d), and, upon the denial of the defendant’s motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of damages, is in favor of that plaintiff and against the defendant in the principal sum of $150,000.ORDERED that the judgment is affirmed, with costs.At the trial of this action to recover damages for personal injuries, the plaintiff Spiro Hiotidis testified that the vehicle in which he and the plaintiff Kerri Hiotidis were traveling was struck in the rear by the defendant’s vehicle. A board-certified orthopedic surgeon who testified for the plaintiffs had examined Spiro approximately six months after the accident. The physician measured the range of motion of the cervical and lumbar regions of Spiro’s spine and of his right shoulder, and found deficits of up to 33 percent in the cervical and lumbar regions of the spine and 38 percent in the right shoulder. The physican also reviewed X rays of each body part at issue. The physician testified that the motor vehicle accident was the cause of Spiro’s injuries.

After the defendant presented her case, she requested a missing witness charge on the ground that the plaintiffs failed to present the testimony of any physician who had treated Spiro. The Supreme Court denied the request. Following the jury charge, the defendant moved pursuant to CPLR 4401 for judgment as a matter of law on the issue of damages. The court denied the motion.The jury unanimously found that Spiro sustained a serious injury under the permanent consequential limitation of use category of Insurance Law §5102(d), and that he should be awarded the principal sum of $150,000 for past pain and suffering. A judgment thereon dated August 4, 2015, was entered accordingly. The defendant appeals.“A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party” (Tapia v. Dattco, Inc., 32 AD3d 842, 844; see Szczerbiak v. Pilat, 90 NY2d 553, 556; Jourbine v. Ma Yuk Fu, 67 AD3d 865, 866). In considering such a motion, “‘the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant’” (Hand v. Field, 15 AD3d 542, 543, quoting Szczerbiak v. Pilat, 90 NY2d at 556).Here, based on the evidence adduced at trial, there was a valid line of reasoning and permissible inferences from which the jury could have concluded that Spiro sustained serious injuries to the cervical and lumbar regions of his spine and to his right shoulder, and that those injuries were caused by the subject accident (cf. Perl v. Meher, 18 NY3d 208, 218-219; Sforza v. Big Guy Leasing Corp., 51 AD3d 659, 661; see generally Toure v. Avis Rent A Car Sys., Inc., 98 NY2d 345, 352; Gaddy v. Eyler, 79 NY2d 955, 956-957). Accordingly, we agree with the Supreme Court’s determination to deny the defendant’s motion pursuant to CPLR 4401.The Supreme Court did not err in denying the defendant’s request for a missing witness charge (see Coningsby v. Marabell, 214 AD2d 949; cf. Wilson v. Bodian, 130 AD2d 221, 233-235; see generally Buttice v. Dyer, 1 AD3d 552, 552-553).SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Balkin, Cohen and Duffy, JJ.Clemente Castillo, ap, v. Motor Vehicle Accident Indemnification Corporation, res — (Index No. 1059/14)In a proceeding pursuant to Insurance Law §5218(c) for leave to commence an action against the Motor Vehicle Law Accident Indemnification Corporation, the petitioner appeals from an order of the Supreme Court, Kings County (Wayne Saitta, J.), dated October 8, 2015. The order, insofar as appealed from, granted the motion of the Motor Vehicle Accident Indemnification Corporation, in effect, for leave to reargue, and, upon reargument, directed a framed-issue hearing on the issue of whether the subject incident was the result of an “accident” or of “intentional” conduct.ORDERED that on the Court’s own motion, the notice of appeal from so much of the order as directed a framed-issue hearing on the issue of whether the subject incident was the result of an “accident” or of “intentional” conduct is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,ORDERED that the order is affirmed insofar as appealed from, with costs.On June 18, 2012, the petitioner, who was riding his bicycle, allegedly became involved in a dispute with a motorist. The motorist’s vehicle allegedly collided with the petitioner. The motorist drove away, and his identity is not known. The petitioner commenced this proceeding pursuant to Insurance Law §5218(c) for leave to commence an action against the Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC) to recover damages for his injuries. The Supreme Court directed a framed-issue hearing on the issue of whether the incident was “intentional” conduct by the petitioner. After the hearing, the referee determined that the occurrence was not intentional on the part of the petitioner. The MVAIC moved, in effect, for leave to reargue, contending that the proper issue was whether the incident was the result of intentional conduct by the motorist. In the order appealed from, the Supreme Court granted the motion, in effect, for leave to reargue and, thereupon, directed a framed-issue hearing on the issue of whether the incident was the result of an “accident” or of intentional conduct by the motorist. The petitioner appeals.A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d][2]). ”Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision” (Mudgett v. Long Is. R.R., 81 AD3d 614, 614 [internal quotation marks omitted]; see Grimm v. Bailey, 105 AD3d 703, 704). Here, the Supreme Court providently exercised its discretion in granting leave to reargue.Article 52 of the Insurance Law (“motor vehicle accident indemnification act”) seeks to provide “for the payment of loss on account of injury to or death of persons who, through no fault of their own, were involved in motor vehicle accidents caused by” vehicles that, for a variety of reasons, are not covered by insurance (Insurance Law §5201[b]). Article 52 does not, however, cover incidents that are the result of intentional conduct by a tortfeasor, because those incidents are not caused “by accident” (McCarthy v. Motor Veh. Acc. Indem. Corp., 16 AD2d 35, 41, affd 12 NY2d 922). Thus, here, if the driver of the motor vehicle that injured the petitioner acted intentionally, the petitioner may not recover in an action against the MVAIC. In initially failing to direct a hearing on the issue of whether the motorist’s conduct was intentional, the Supreme Court misapprehended the law, and it providently exercised its discretion in granting leave to reargue and directing that a hearing be held on the issue of whether the motorist acted intentionally (see Matter of Progressive Northeastern Ins. Co. v. Cipolla, 119 AD3d 946, 947).Contrary to the petitioner’s contention, State Farm Mut. Auto. Ins. Co. v. Langan (16 NY3d 349) does not require a different result. In Langan, a tortfeasor intentionally caused injuries to an innocent person who was an insured under an automobile insurance policy. Recovery was sought under the uninsured/underinsured motorist endorsement of that policy. The insurer denied coverage on the ground that the injuries resulted from the tortfeasor’s intentional conduct and therefore were not the result of an “accident.” The Court of Appeals held that where recovery was sought from the insurer under the insured’s own policy, the determination of whether the incident constituted an “accident” was to be viewed from the perspective of the innocent insured, rather than of the tortfeasor: “the intentional assault of an innocent insured is an accident within the meaning of his or her own policy. The occurrence at issue was clearly an accident from the insured’s point of view” (id. at 356). The Court distinguished McCarthy v. Motor Veh. Acc. Indem. Corp. (16 AD2d at 41), where recovery was sought from a state fund administered by the MVAIC (see State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d at 355-357; see also L 1965, ch 322, §3). Here, as in McCarthy, the petitioner seeks to recover from the state fund administered by the MVAIC, and not from an insurer under an insurance policy as in Langan.In sum, we agree with the Supreme Court’s determination to grant the MVAIC’s motion, in effect, for leave to reargue and, upon reargument, to direct a framed-issue hearing on the issue of whether the incident was the result of an “accident” or of intentional conduct by the motorist.MASTRO, J.P., BALKIN, COHEN and DUFFY, JJ., concur.By Balkin, J.P.; Chambers, Austin and Lasalle, JJ.Monica Persaud ap, v. Walgreens Co., et al., res — (Index No. 7297/10)In an action, inter alia, to recover damages for employment discrimination in violation of Administrative Code of the City of New York §8-107, the plaintiffs appeal from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered June 22, 2015. The order, insofar as appealed from, granted that branch of the defendants’ motion which was for summary judgment dismissing the causes of action alleging violations of Administrative Code of the City of New York §8-107.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiffs are four Guyanese women of Indian descent who were previously employed by the defendant Walgreens-OptionCare, Inc., a wholly owned subsidiary of the defendant Walgreens Co. In 2010, the plaintiffs commenced this action against Walgreens Co., Walgreens-OptionCare, Inc., and several former coworkers and supervisors—the defendants Gary Calabrese, Heather Olsen, Debra Lord, Kelly O’Rourke, Jeanne Ocvirek, and Janis Perrin—to recover damages for, inter alia, employment discrimination on the basis of race and national origin in violation of the New York City Human Rights Law (Administrative Code of City of NY §8-101 et seq. [hereinafter the NYCHRL]; see Administrative Code of City of NY §8-107). Thereafter, the defendants moved for summary judgment dismissing the complaint. The Supreme Court, among other things, granted that branch of the defendants’ motion which was for summary judgment dismissing the causes of action alleging violations of the NYCHRL. The plaintiffs appeal.The NYCHRL prohibits discrimination in employment based upon, inter alia, race and national origin (see Administrative Code of City of NY §8-107[1][a]; Macchio v. Michaels Elec. Supply Corp., 149 AD3d 716, 719). ”[A] defense motion for summary judgment in an action brought under the NYCHRL must be analyzed under both the familiar framework of McDonnell Douglas Corp. v. Green (411 US 792 [1973]) and under the newer ‘mixed motive’ framework, which imposes a lesser burden on a plaintiff opposing such a motion” (Hamburg v. New York Univ. Sch. of Medicine, 155 AD3d 66, 72-73; see Bennett v. Health Mgt. Sys., Inc., 92 AD3d 29). ”Summary judgment dismissing a claim under the NYCHRL should be granted only if no jury could find defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, direct evidence, or some combination thereof” (Hamburg v. New York Univ. Sch. of Medicine, 155 AD3d at 73 [internal quotation marks omitted]; see Melman v. Montefiore Med. Ctr., 98 AD3d 107, 113).Here, although the Supreme Court erred to the extent that it failed to analyze the defendants’ motion for summary judgment under the “mixed motive” framework, summary judgment dismissing the plaintiffs’ employment discrimination claims was nonetheless warranted (see Clark v. Morelli Ratner PC, 73 AD3d 591). The defendants made a prima facie showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in their challenged actions (see Bull v. Metropolitan Jewish Health Sys., Inc., 152 AD3d 639, 641; Hudson v. Merrill Lynch & Co., Inc., 138 AD3d 511, 515-516; Baldwin v. Cablevision Sys. Corp., 65 AD3d 961, 966). In opposition, the plaintiffs failed to raise a triable issue of fact (see Kaiser v. Raoul’s Rest. Corp., 112 AD3d 426, 427; Melman v. Montefiore Med. Ctr., 98 AD3d at 121; Dickerson v. Health Mgt. Corp. of Am., 21 AD3d 326, 327-329).We agree with the Supreme Court’s determination directing the dismissal of the causes of action alleging the creation of a hostile work environment in violation of the NYCHRL (see Buchwald v. Silverman Shin & Byrne PLLC, 149 AD3d 560; Ji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, 26; Kosarin-Ritter v. Mrs. John L. Strong, LLC, 117 AD3d 603, 604).BALKIN, J.P., CHAMBERS, AUSTIN and LASALLE, JJ., concur.By Scheinkman, P.J.; Roman, Sgroi and Maltese, JJ.MATTER of Maria T. Olivari, res, v. Alan R. Bianco, ap — (Docket No. F-6433-10)In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of commitment of the Family Court, Nassau County (Merik R. Aaron, J.), dated December 1, 2016. The order of commitment, in effect, confirmed findings of fact and an order of disposition of the same court (Eileen Daly-Sapraicone, S.M.) dated September 16, 2016, made after a hearing, finding that the father had willfully violated a prior order of child support, and upon the father’s failure to pay the purge amount of $15,000, committed him to the custody of the Nassau County Jail for a period of 90 days.ORDERED that the appeal from so much of the order of commitment as committed the father to the custody of the Nassau County Jail for a period of 90 days is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Stradford v. Blake, 141 AD3d 725); and it is further,ORDERED that the order of commitment is affirmed insofar as reviewed, without costs or disbursements.The parties were divorced in 2010. The judgment of divorce awarded custody of their two children to the mother and directed the father to pay agreed-upon child support. In 2015, the Family Court issued an order of support directing the father to pay basic child support in the sum of $3,125 per month, plus $300 per month for extracurricular activities, and $118.30 per month for the children’s health insurance premiums.The mother subsequently commenced this proceeding alleging that, starting in 2015, the father willfully failed to pay his child support obligations. After a hearing, the Support Magistrate found that the father’s failure to pay child support was willful, and in an order of commitment dated December 1, 2016, the Family Court committed the father to the custody of the Nassau County Jail for a period of 90 days, with a purge amount of $15,000. The father appeals from the order of commitment.Although the appeal from so much of the order of commitment as committed the father to the custody of the Nassau County Jail for a period of 90 days must be dismissed as academic, the appeal from so much of the order of commitment as confirmed the finding and determination that the father was in willful violation of the order of support is not academic in light of the enduring consequences which could flow from the finding that he violated the order of support (see Matter of Stradford v. Blake, 141 AD3d 725; Matter of Dezil v. Garlick, 136 AD3d 904, 905).Family Court Act §454(3)(a) provides that if the court finds that a respondent willfully failed to obey an order of support, the court may “commit the respondent to jail for a term not to exceed six months. For purposes of this subdivision, failure to pay support, as ordered, shall constitute prima facie evidence of a willful violation.” Here, the mother came forward with sufficient evidence at the hearing to show the father failed to pay the ordered support for the relevant period. This proof that the father failed to pay support as ordered alone established the mother’s direct case of willful violation, shifting to the father the burden of going forward (see Matter of Powers v. Powers, 86 NY2d 63, 68-69).The father failed to establish his defense of an inability to pay (see Family Ct Act §455[5]). Despite the father’s claims, there was evidence at the hearing that the father chose to become indebted on a mortgage on a property in Florida and to pay his present wife’s health and automobile insurance and rent, rather than paying the required child support. Thus, the evidence showed that the father diverted his income to these other expenses, including travel to Florida in connection with the property there, rather than comply with the order of support (see Matter of Powers v. Powers, 86 NY2d at 70), and used personal expenses as business deductions, making his income appear lower (see Castello v. Castello, 144 AD3d 723, 725-726). Furthermore, the father, a licensed attorney and insurance agent, failed to show any attempt to secure employment with a law firm or insurance agency (see Matter of Richards v. Bailey, 296 AD2d 412, 413). Deference should be accorded the Support Magistrate’s credibility determinations, which includes the decision not to rely on the father’s own account of his finances (see Matter of Decillis v. Decillis, 152 AD3d 512, 513). Accordingly, we decline to disturb the Family Court’s finding of willfulness.Contrary to the father’s contention, viewed in totality, counsel for the father provided meaningful representation (see Matter of Becker v. Guenther, 150 AD3d 985, 986; Matter of Ulster County Support Collection Unit v. Oliver, 135 AD3d 1114).SCHEINKMAN, P.J., ROMAN, SGROI and MALTESE, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros and Brathwaite Nelson, JJ.Robert Iannucci ap, v. Kucker & Bruh, LLP res — (Index No. 16155/05)In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated October 7, 2015. The order, insofar as appealed from, granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging legal malpractice.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 cause of action alleging legal malpractice is denied.In November 2002, the plaintiffs Robert Iannucci and Sonia Ewers, principals of the plaintiffs Clocktower Properties and Team Obsolete Promotions, Inc. (hereinafter collectively the plaintiffs), purchased property located at 325 Gold Street in Brooklyn (hereinafter the building), which, at that time, was zoned for commercial use. In connection with their purchase, Iannucci and Ewers assumed, among other things, the interest and rights in certain actions commenced by the previous owner to evict residential tenants located on the building’s second, fifth, and sixth floors, and in the south basement unit. Iannucci retained the defendants to represent the plaintiffs in the ongoing eviction actions and to take or maintain legal actions against subtenants in the building. During the time that the defendants represented the plaintiffs in the eviction actions, three of the four floors at issue were vacated either by settlement or as a result of an award of summary judgment. In January 2005, Iannucci retained new counsel. The remaining residential tenants eventually vacated the premises.Subsequently, the plaintiffs commenced this action, inter alia, to recover damages for legal malpractice, alleging, among other things, that the defendants failed to prosecute the underlying eviction actions in a timely manner, which caused the plaintiffs to lose rental income in excess of $500,000. After the completion of discovery, the defendants moved, among other things, for summary judgment dismissing the legal malpractice cause of action. In the order appealed from, the Supreme Court, inter alia, granted that branch of the defendants’ motion which was for summary judgment dismissing that cause of action on the ground that the plaintiffs’ claim of loss was based on speculation. The plaintiffs appeal, as limited by their brief, from so much of the order as granted that branch of the defendants’ motion. We reverse the order insofar as appealed from.“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [internal quotation marks omitted]; see Verdi v. Jacoby & Meyers, LLP, 154 AD3d 901, 902; Ferrigno v. Jaghab, Jaghab & Jaghab, P.C., 152 AD3d 650, 652). It is well settled that in order to be entitled to summary judgment, the movant “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853). ”It is a defendant’s burden, when it is the party moving for summary judgment, to demonstrate affirmatively the merits of a defense, which cannot be sustained by pointing out gaps in the plaintiff’s proof” (Quantum Corporate Funding, Ltd. v. Ellis, 126 AD3d 866, 871; see Bivona v. Danna & Assoc., P.C., 123 AD3d 959, 960; Kempf v. Magida, 116 AD3d 736, 737; Gamer v. Ross, 49 AD3d 598, 600). Once a defendant makes a prima facie showing, the burden shifts to the plaintiff to raise an issue of fact requiring a trial (see Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 AD3d 955, 956; Schadoff v. Russ, 278 AD2d 222, 223).Here, the defendants failed to submit evidence establishing, prima facie, that the plaintiffs are unable to prove at least one essential element of the cause of action alleging legal malpractice (see Pedote v. Kelly, 124 AD3d at 855-856; Biberaj v. Acocella, 120 AD3d at 1286). The defendants’ styling of the plaintiffs’ damages theory as “speculative” was merely an effort to point out gaps in the plaintiff’s proof, which was insufficient to meet the defendants’ burden as the party moving for summary judgment (see Quantum Corporate Funding, Ltd. v. Ellis, 126 AD3d at 871; Bivona v. Donna & Assoc., P.C., 123 AD3d at 960).Moreover, even if the plaintiffs’ damages cannot be precisely calculated at this stage, expenses to the client resulting from attorney delays are deemed to be ascertainable damages in connection with a legal malpractice cause of action (see e.g. VDR Realty Corp. v. Mintz, 167 AD2d 986, 987 [noting that the plaintiff's legal malpractice cause of action was validly grounded in allegations that the defendant attorney "unreasonably delayed the prosecution of a landlord-tenant holdover proceeding and engaged in dilatory tactics, thereby increasing the attorney's fee and causing other consequential damages"]; accord Miuccio v. Straci, 129 AD3d 515, 516 [motion for summary judgment dismissing legal malpractice cause of action was properly denied by the trial court where the plaintiff alleged that he sustained damages due to the defendant attorney's delay]; see also Plato Gen. Constr. Corp./EMCO Tech Constr. Corp., JV, LLC v. Dormitory Auth. of State of N.Y., 89 AD3d 819, 825-826 [noting that, regarding damages for delay, a "plaintiff must show that defendant was responsible for the delay; that these delays caused delay in completion of the contract (eliminating overlapping or duplication of delays); that the plaintiff suffered damages as a result of these delays; and plaintiff must furnish some rational basis for the court to estimate those damages, although obviously a precise measure is neither possible nor required" (internal quotation marks omitted)]; Manshul Constr. Corp. v. Dormitory Auth. of State of N.Y., 79 AD2d 383, 387).Since the defendants failed to meet their prima facie burden, the Supreme Court should have denied that branch of their motion which was for summary judgment dismissing the legal malpractice cause of action, regardless of the sufficiency of the plaintiffs’ papers in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Salcedo v. Demon Trucking, Inc., 146 AD3d 839, 841).In light of our determination, we need not reach the parties’ remaining contentions.SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Chambers, Austin and Lasalle, JJ.PEOPLE, etc., res, v. Brandon Davis, ap — (Ind. No. 567-14)Laurette D. Mulry, Riverhead, NY (Louis E. Mazzola of counsel), for appellant.Timothy D. Sini, District Attorney, Riverhead, NY (Rosalind C. Gray of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Suffolk County (John J. Toomey, J.), rendered October 6, 2015, convicting him of murder in the first degree, murder in the second degree (two counts), and assault in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Mark D. Cohen, J.), of that branch of the defendant’s omnibus motion which was to suppress his statement to law enforcement officials.ORDERED that the judgment is affirmed.The defendant was indicted in connection with an armed robbery that occurred on December 25, 2013, in Medford, which resulted in the death of Taliek Bristol and injury to three other victims. Prior to trial, the defendant moved, inter alia, to suppress a statement he made to the arresting detective while he was being transported to the police station and before he was advised of his Miranda rights (see Miranda v. Arizona, 384 US 436). In particular, during the transport, the defendant initiated a conversation by asking the arresting detective why he was arrested. When the detective responded “murder,” the defendant asked “when this murder supposedly happened.” The detective replied, “Christmas day… the previous year.” The defendant then stated that “he doesn’t get involved in murders, that’s not his M.O., he just is involved in drugs and getting money.” In response, the detective asked the defendant “if he had a job.” The defendant responded “no, I just get money.” The hearing court denied that branch of the defendant’s omnibus motion which was to suppress this statement, finding that the statement was spontaneously made and that the detective’s inquiry was not reasonably likely to elicit an incriminating response.At trial, the People presented evidence that the defendant, in the course of committing a robbery with two others, shot Taliek in the head, and again in the right torso as he was falling to the ground. The jury found the defendant guilty of murder in the first degree, two counts of murder in the second degree, and assault in the first degree. The defendant appeals.We agree with the defendant that his statement, “no, I just get money,” was not spontaneous since it was made in direct response to a question posed by the detective concerning whether he had a job (see People v. Rivers, 56 NY2d 476, 480; People v. Maerling, 46 NY2d 289, 302-303). Nevertheless, considering the totality of the circumstances leading up to the defendant’s statement, the hearing court properly determined that the statement was not subject to suppression since the question posed by the detective was not the functional equivalent of an interrogation and was not reasonably likely to elicit an incriminating response (see People v. Slattery, 147 AD3d 788, 790; People v. Matos, 133 AD3d 885, 889; cf. People v. Blacks, 153 AD3d 720; People v. George, 127 AD3d 1496, 1497-1498). Indeed, “not every comment made by a police officer in response to an inquiry by the defendant can be said to constitute interrogation, merely because it is followed by an incriminating statement from the defendant” (People v. Rivers, 56 NY2d at 479). Here, the detective’s innocuous question concerning whether the defendant had a job was made in the context of a brief exchange and in response to the defendant’s spontaneous statement that he was involved in “getting money.” In addition, there is no indication in the record that the question was posed by the detective with the intention of eliciting an incriminating response (see People v. Licurgo, 277 AD2d 396, 396-397; cf. People v. Hillard, 151 AD3d 743, 744). Accordingly, the hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress his statement to law enforcement officials.The defendant was not deprived of the right to counsel because the County Court denied his motion for the substitution of new counsel. ”Whether counsel is substituted is within the discretion and responsibility of the trial judge, and a court’s duty to consider such a motion is invoked only where a defendant makes a seemingly serious request[ ]” (People v. Ward, 121 AD3d 1026, 1027 [citations and internal quotation marks omitted]; see People v. Porto, 16 NY3d 93, 99-100). Here, the record does not provide a basis to conclude that the defendant’s motion was based on specific factual allegations of a serious complaint about his counsel (see People v. McErlean, 149 AD3d 872, 873). The defendant’s additional contention that he was deprived of the right to counsel because the court permitted his second defense attorney, whom the defendant retained, to be relieved, is without merit. Under the circumstances of this case, where the defendant unequivocally consented to the discharge of his retained counsel and the appointment of new assigned counsel, it cannot be said that the defendant was deprived of the right to representation of his own choosing (see People v. Nguyen, 90 AD3d 1330, 1332; People v. Bailey, 80 AD3d 999, 1000).Furthermore, the defendant was not deprived of the effective assistance of counsel by the failure of his third defense attorney to object when the prosecutor was allowed to elicit testimony from a detective indicating that the defendant was 19 years old at the time of the crime (see People v. Lewis, 135 AD3d 961, 962; People v. Page, 134 AD3d 858, 858). Viewed in totality, the record demonstrates that the defendant received meaningful representation (see Strickland v. Washington, 466 US 668; People v. Benevento, 91 NY2d 708, 713-714).Contrary to the People’s contention, the defendant adequately preserved for appellate review his contention that the County Court erred in permitting the prosecutor to elicit testimony from a detective indicating that the defendant had invoked his right to remain silent (cf. People v. Luckerson, 170 AD2d 695). Nevertheless, the defendant’s contention is without merit. The record demonstrates that the subject testimony did not reference an invocation of the right to remain silent.The defendant failed to preserve for appellate review his present challenges to the legal sufficiency of the evidence (see CPL 470.05[2]; People v. Hawkins, 11 NY3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish beyond a reasonable doubt the defendant’s identity as one of the perpetrators and his guilt of the crimes of which he was convicted. Moreover, 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), 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; People v. Bleakley, 69 NY2d 490, 495). 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 sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).BALKIN, J.P., CHAMBERS, AUSTIN and LASALLE, JJ., concur.By Leventhal, J.P.; Cohen, Maltese and Barros, JJ.Robert Greco, res, v. Susan Greco, ap — (Index No. 201553/10)In an action for a divorce and ancillary relief, the defendant appeals from a judgment of divorce of the Supreme Court, Nassau County (Geoffrey J. O’Connell, J.H.O.), entered April 22, 2015. The judgment, insofar as appealed from, awarded the defendant monthly maintenance in the sum of only $4,500 for a period of only three years, determined issues of equitable distribution of the marital estate, and failed to direct the plaintiff to pay the defendant’s health insurance premiums.ORDERED that the judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof awarding the defendant monthly maintenance in the sum of $4,500 for a period of three years, and substituting therefore a provision awarding the defendant monthly maintenance in the sum of $4,500 until the earliest of the following events: the defendant’s remarriage or cohabitation, the death of either party, or until the defendant begins to draw Social Security benefits or reaches the age of 67 or such age that she would qualify for full Social Security benefits, at which time the maintenance award will be reduced to $2,000 per month, and (2) by adding thereto a provision directing the plaintiff to pay the defendant’s health insurance premiums until the earliest of such time as the defendant is eligible for Medicaid or Medicare, or she obtains health insurance through employment or remarriage or cohabitation; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.The parties were married in 1999 and have two children together. In May 2010, the plaintiff commenced this action for a divorce and ancillary relief. Following a custody trial, the Supreme Court awarded the plaintiff full custody of the children based upon the defendant’s psychiatric condition. Thereafter, a trial was held on the financial issues and the court, inter alia, awarded the defendant monthly maintenance in the sum of $4,500 for a period of three years and determined issues of equitable distribution of the marital estate. On appeal, the defendant challenges the amount and duration of the maintenance award, the determination of issues of equitable distribution of the marital estate, and the failure of the court to direct the plaintiff to pay the defendant’s health insurance premiums.“‘[T]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts’” (Rabinovich v. Shevchenko, 93 AD3d 774, 775, quoting Siskind v. Siskind, 89 AD3d 832, 833 [internal quotation marks omitted]; see Wortman v. Wortman, 11 AD3d 604, 606). In determining the amount and duration of an award of maintenance, the Supreme Court must consider the factors enumerated in Domestic Relations Law §236(B)(6)(a), which, prior to amendments effective January 23, 2016, not applicable to this action (see L 2015, ch 269, §4), included the predivorce standard of living of the parties, “the income and property of the parties, the equitable distribution of marital property, the duration of the marriage, the present and future earning capacity of the parties, the ability of the party seeking maintenance to be self-supporting, and the reduced or lost earning capacity of the party seeking maintenance” (Giokas v. Giokas, 73 AD3d 688, 689; see Gillman v. Gillman, 139 AD3d 667, 670).Here, the amount of maintenance awarded by the Supreme Court was consistent with the purpose and function of a maintenance award considering, among other things, the equitable distribution award and the absence of child-rearing responsibilities because the plaintiff was awarded full custody of the children. However, taking into consideration all the relevant factors, including the fact that the defendant is suffering from a psychiatric condition and was unable, for the foreseeable future, to be self-supporting, it was an improvident exercise of the court’s discretion to limit the maintenance award to a period of three years. Accordingly, the duration of the defendant’s maintenance should be until her remarriage or cohabitation, or the death of either party, or until the defendant begins to draw Social Security benefits or reaches the age of 67 or such age that she would qualify for full Social Security benefits, whichever occurs first, at which time the maintenance award will be reduced to $2,000 per month (see Carroll v. Carroll, 125 AD3d 710; Rabinovich v. Shevchenko, 93 AD3d 774).Similarly, the Supreme Court improvidently exercised its discretion in failing to direct the plaintiff to pay the defendant’s health insurance premiums. The court should have directed the plaintiff to pay for the defendant’s health insurance premiums until the earliest of such time as the defendant is eligible for Medicaid or Medicare, or she obtains health insurance through employment, or remarries or cohabitates (see D’Iorio v. D’Iorio, 135 AD3d 693, 697; Miness v. Miness, 229 AD2d 520, 521).We agree with the Supreme Court’s determination of the issues of the equitable distribution of the marital estate, including the determination that the defendant is entitled to an award in the sum of $114,555.50, representing her equitable share of the appreciated value of the marital residence (see Domestic Relations Law §236[B][1][d][3]; Lubrano v. Lubrano, 122 AD3d 807, 808; Scher v. Scher, 91 AD3d 842, 845; Mongelli v. Mongelli, 68 AD3d 1070, 1072; cf. Koehler v. Koehler, 285 AD2d 582). We also agree with the court’s determination to decline to award the defendant 50 percent of the rental income derived from a cottage located on the marital estate, since that income was put toward the carrying costs of the marital residence (cf. Dellafiora v. Dellafiora, 54 AD3d 715, 716).LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Leventhal, J.P.; Cohen, Maltese and Barros, JJ.Robert Greco, ap, v. Susan Greco, defendant- res; Lawrence J. Glynn nonparty- res — (Index No. 201553/10)In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Nassau County (Geoffrey J. O’Connell, J.H.O.), dated March 31, 2015. The order, insofar as appealed from, granted those branches of the defendant’s motion which were for awards of counsel fees in the sums of $70,000 payable to Lawrence J. Glynn and $37,500 payable to John A. Gemelli, and for an award of expert witness fees in the sum of $12,700 payable to the defendant.ORDERED that the order is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof granting that branch of the defendant’s motion which was for an award of counsel fees in the sum of $70,000 payable to Lawrence J. Glynn, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof granting that branch of the defendant’s motion which was for an award of expert witness fees in the sum of $12,700 payable to the defendant, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.The parties were married in 1999 and have two children together. In May 2010, the plaintiff commenced this action for a divorce and ancillary relief. Following a custody trial, the plaintiff was awarded full custody of the children. Thereafter, a trial was held on the financial issues, and the Supreme Court issued a judgment of divorce. Following the conclusion of the trial on financial issues, the defendant moved for awards of counsel fees and expert witness fees. The court granted those branches of the motion which were for awards of counsel fees in the sums of $70,000 payable to Lawrence J. Glynn and $37,500 payable to John A. Gemelli, and for an award of expert witness fees in the sum of $12,700 payable to the defendant. The plaintiff appeals.In a matrimonial action, an award of counsel fees is a matter committed to the sound discretion of the trial court (see Montoya v. Montoya, 143 AD3d 865, 865; Vitale v. Vitale, 112 AD3d 614, 614-615). However, court rules impose certain requirements upon attorneys who represent clients in domestic relations matters (see 22 NYCRR part 1400). These rules were designed to address abuses in the practice of matrimonial law and to protect the public, and the failure to substantially comply with the rules will preclude an attorney’s recovery of a fee from his or her client (see Montoya v. Montoya, 143 AD3d at 865; Hovanec v. Hovanec, 79 AD3d 816, 817; Pillai v. Pillai, 15 AD3d 466; Bishop v. Bishop, 295 AD2d 382) or from the adversary spouse (see Rosado v. Rosado, 100 AD3d 856; Wagman v. Wagman, 8 AD3d 263). A showing of substantial compliance must be made on a prima facie basis as part of the moving party’s papers (see Montoya v. Montoya, 143 AD3d at 866; Gottlieb v. Gottlieb, 101 AD3d 678, 679).Here, the evidence proffered by the defendant in support of that branch of her motion which was for an award of counsel fees for work performed by Glynn demonstrates that Glynn failed to substantially comply with the rules requiring periodic billing statements at least every 60 days (see 22 NYCRR 1400.2, 1400.3[9]; Montoya v. Montoya, 143 AD3d at 866; Rosado v. Rosado, 100 AD3d at 856; Gahagan v. Gahagan, 51 AD3d 863). Accordingly, the Supreme Court erred in granting that branch of the defendant’s motion which pertains to Glynn’s counsel’s fees. However, the evidence before the court showed that Gemelli substantially complied with the rules (see Matter of Felix v. Felix, 110 AD3d 805, 806). Accordingly, we agree with the court’s determination to grant that branch of the defendant’s motion which pertains to Gemelli’s counsel fees.“The award of expert witness fees in a matrimonial action is left to the sound discretion of the trial court, and should be made upon a detailed showing of the services to be rendered and the estimated time involved” (Vistocco v. Jardine, 116 AD3d 842, 844). ”Absent affidavits from the expert witnesses at issue, the Supreme Court lacks a sufficient basis to grant a motion for the award of such fees” (Avello v. Avello, 72 AD3d 850, 852; see Corrao v. Corrao, 209 AD2d 573, 574; Ahern v. Ahern, 94 AD2d 53, 58). Here, the defendant failed to submit such expert affidavits. Thus, the Supreme Court improvidently exercised its discretion in awarding the defendant expert witness fees.LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.Nationstar Mortgage, LLC, res, v. Martin Dekom, appellant def — (Index No. 8566/13)Martin Dekom, Manhasset, NY, appellant pro se.Sandelands Eyet, LLP, New York, NY (William C. Sandelands and Kieran M. Dowling of counsel), for respondent.In an action to foreclose a mortgage, the defendant Martin Dekom appeals from a judgment of foreclosure and sale of the Supreme Court, Nassau County (Thomas A. Adams, J.), dated December 2, 2014, and two orders of the same court, entered April 16, 2015, and May 14, 2015, respectively. The judgment of foreclosure and sale, upon the default of the defendant Martin Dekom in answering the complaint, inter alia, directed the sale of the subject property. The order entered April 16, 2015, denied the motion of the defendant Martin Dekom, in effect, to vacate his default in answering. The order entered May 14, 2015, denied the motion of the defendant Martin Dekom to vacate the default judgment of foreclosure and sale and/or stay its enforcement.ORDERED that the judgment and the orders are affirmed, with one bill of costs.The plaintiff’s predecessor-in-interest commenced this action to foreclose a mortgage after the defendant Martin Dekom (hereinafter the defendant) defaulted in making his payments on the underlying note. The defendant defaulted in answering the complaint. The action proceeded to an inquest, where the defendant appeared and sought dismissal of the complaint insofar as asserted against him for, among other things, lack of personal jurisdiction. The Supreme Court found that the plaintiff established personal jurisdiction over the defendant, in that the defendant was properly served, and directed entry of judgment. A judgment of foreclosure and sale dated December 2, 2014, was then entered.The defendant moved, in effect, to vacate his default in answering. In an order entered April 16, 2015, the Supreme Court denied that motion. The defendant then moved to vacate the default judgment and/or stay its enforcement. That motion was denied by order entered May 14, 2015. The defendant appeals from the judgment and the orders entered April 16, 2015, and May 14, 2015, respectively.We agree with the Supreme Court’s rejection of the defendant’s claim of lack of personal jurisdiction. A process server’s affidavit of service constitutes prima facie evidence of proper service (see Summitbridge Credit Invs., LLC v. Wallace, 128 AD3d 676; JPMorgan Chase Bank, N.A. v. Todd, 125 AD3d 933). ”Although a defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server’s affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits” (Deutsche Bank Natl. Trust Co. v. Quinones, 114 AD3d 719, 719 [internal quotation marks omitted]; see Bank of N.Y. v. Samuels, 107 AD3d 653). Affix and mail service pursuant to CPLR 308(4) may be used only where service under CPLR 308(1) by personal delivery or CPLR 308(2) by delivery to a person of suitable age and discretion cannot be made with due diligence (see CPLR 308[4]; Deutsche Bank Natl. Trust Co. v. White, 110 AD3d 759, 759-760; Estate of Waterman v. Jones, 46 AD3d 63, 65).The term “due diligence,” which is not defined by statute, has been interpreted and applied on a case-by-case basis (see Estate of Waterman v. Jones, 46 AD3d at 66). As a general matter, the “due diligence” requirement may be met with “a few visits on different occasions and at different times to the defendant’s residence or place of business when the defendant could reasonably be expected to be found at such location at those times” (id.; see Deutsche Bank Natl. Trust Co. v. White, 110 AD3d at 760). In this case, the plaintiff submitted affidavits from the process server which demonstrated that four visits were made to the defendant’s residence at different times when the defendant could reasonably have been expected to be found at home. The process server also described the means she used to verify the defendant’s residential address, and described her unsuccessful attempt to ascertain the defendant’s place of employment. We agree with the Supreme Court that the affidavits constituted prima facie evidence that the due diligence requirement was satisfied (see JP Morgan Chase Bank, N.A. v. Baldi, 128 AD3d 777, 777-778). The affidavits also constituted prima facie evidence that the process server properly affixed a copy of the summons and complaint to the door of the defendant’s residence, and mailed a copy to the residence by first class mail. Contrary to the defendant’s contention, he failed to rebut the presumption of proper service arising from the process server’s affidavits. Further, the summons contained statutorily mandated language warning the defendant that the failure to serve an answer to the complaint may result in a default judgment and advising him to speak to an attorney (see generally RPAPL 1320).We agree with the Supreme Court’s denial of the defendant’s motion, in effect, to vacate his default in answering, and his motion to vacate the default judgment and/or stay its enforcement, since he failed to proffer a reasonable excuse for his default (see Wells Fargo Bank, N.A. v. Mazzara, 124 AD3d 875, 875, citing Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138, 141). In view of the lack of a reasonable excuse, it was unnecessary for the Supreme Court to consider whether the defendant demonstrated the existence of a potentially meritorious defense (see Wells Fargo Bank, N.A. v. Mazzara, 124 AD3d at 875).SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.PEOPLE, etc., res, v. Anthony Jones, ap — (Ind. No. 3745/07)Paul Skip Laisure, New York, NY (Jenin Younes of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, and Kenneth Blake of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Raymond Guzman, J.), rendered March 16, 2010, convicting him of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree, and aggravated criminal contempt, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.We agree with the Supreme Court’s determination to deny the defendant’s challenge for cause to a prospective juror. Contrary to the defendant’s contention, the record established that the prospective juror was sufficiently proficient in the English language to serve as a juror (see CPL 270.20[1][a]; People v. Harris, 63 AD3d 480; People v. Chohan, 254 AD2d 124).The Supreme Court also providently exercised its discretion in limiting the cross-examination of the complainant (see People v. Roussopoulos, 261 AD2d 559; People v. Ashner, 190 AD2d 238, 246-248).RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Leventhal, J.P.; Cohen, Maltese and Barros, JJ.Robert Greco, res, v. Susan Greco, ap — (Index No. 201553/10)In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Nassau County (Geoffrey J. O’Connell, J.H.O.), dated April 20, 2016. The order, insofar as appealed from, granted the defendant’s motion for counsel fees only to the extent of awarding her the sum of $12,000.ORDERED that the order is affirmed insofar as appealed from, with costs.The parties were married in 1999 and have children together. In May 2010, the plaintiff commenced this action for a divorce and ancillary relief. Following a custody trial, the plaintiff was awarded full custody of the children. Thereafter, a trial was held on the financial issues, and the Supreme Court issued a judgment of divorce. The defendant appealed from certain aspects of the judgment. Thereafter, the defendant applied for counsel fees for work connected with her appeal. The court awarded her the sum of $12,000, and the defendant appeals.Under the circumstances, we find no basis to disturb the award.LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Dillon, J.P.; Austin, Miller and Hinds-Radix, JJ.PEOPLE, etc., res, v. Kevin King, ap — (Ind. No. 10578/13)Paul Skip Laisure, New York, NY (Anders Nelson of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Victor Barall, and Joyce Adolfsen of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew D’Emic, J.), rendered March 1, 2016, convicting him of aggravated harassment in the first degree and aggravated harassment in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.“The decision to permit a defendant to withdraw a previously entered plea of guilty, as well as the nature and extent of the fact-finding inquiry, rests largely within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion” (People v. Jemmott, 125 AD3d 1005, 1006; see CPL 220.60[3]; People v. Brown, 14 NY3d 113, 116; People v. Alexander, 97 NY2d 482, 485). Here, the Supreme Court providently exercised its discretion in denying, without a hearing, the defendant’s application to withdraw his plea of guilty (see People v. Rodriguez, 152 AD3d 800, 800; People v. Jackson, 87 AD3d 552, 553; see also People v. Colemanorange, 151 AD3d 738, 739; People v. Gallo, 73 AD3d 804, 804-805; People v. Pryor, 11 AD3d 565, 566; People v. Kessler, 5 AD3d 504, 505).Inasmuch as the maximum term of the defendant’s sentence expired during the pendency of this appeal, any issues which relate to the length of his sentence are academic (see People v. Velez, 116 AD3d 1077, 1077; People v. Gonzalez, 113 AD3d 792, 793; People v. Conklin, 46 AD3d 698, 698; People v. Ackridge, 31 AD3d 654, 655). Under these circumstances, we need not reach the defendant’s remaining contention that his appeal waiver was invalid (see People v. Bernard, 155 AD3d 1059, 1059; People v. Thomas, 139 AD3d 986, 986).DILLON, J.P., AUSTIN, MILLER and HINDS-RADIX, JJ., concur.By Roman, J.P.; Cohen, Miller and Maltese, JJ.MATTER of Christopher Edwards, res, v. Danielle Edwards, ap — (Docket Nos. V-2189-08/16F, V-2190-08/16F)George E. Reed, Jr., White Plains, NY, attorney for the children.In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated February 15, 2017. The order, insofar as appealed from, after a hearing, granted the father’s petition to modify a prior order of the same court dated July 13, 2016, so as to award him sole legal and physical custody of the parties’ children.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The parties were married and are the parents of two children, born in 2004 and 2006, respectively. The parties separated in November 2007 and eventually divorced. Since 2008, the parties have appeared in the Family Court on numerous occasions relating to disputes over custody and physical access. Pursuant to a prior order of the court, the mother had sole custody of the children, and the father had physical access.The father filed a petition to modify the prior custody order so as to award him sole legal and physical custody of the children. After a hearing, the Family Court granted the father’s petition and awarded him sole legal and physical custody. The mother appeals.Where modification of an existing custody arrangement is sought, the petitioner must make a showing that there has been a change in circumstances such that modification is necessary to protect the best interests of the child (see Matter of Nixon v. Ferrone, 153 AD3d 625, 626; Matter of Scott v. Powell, 146 AD3d 964, 965; Matter of Zall v. Theiss, 144 AD3d 831, 832). In determining whether such a change has occurred, the court should consider the totality of the circumstances (see Matter of Moore v. Gonzalez, 134 AD3d 718, 719; Matter of Connolly v. Walsh, 126 AD3d 691, 693; Matter of Miedema v. Miedema, 125 AD3d 971, 971).As custody determinations largely depend upon the Family Court’s assessments of the credibility, character, temperament, and sincerity of the parties, the Family Court’s findings should be accorded great weight and its determination not disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v. Eschbach, 56 NY2d 167, 173; Matter of Harrison v. McClellan, 151 AD3d 723, 723; Matter of Lao v. Gonzales, 130 AD3d 624, 625).Here, the father established a change in circumstances such that modification of the existing custody arrangement between the parties was necessary to protect the interests of the children. The Family Court’s determination to award sole custody of the children to the father is supported by a sound and substantial basis in the record (see Matter of Feliccia v. Spahn, 108 AD3d 702, 703; Matter of DeViteri v. Saldana, 95 AD3d 1221, 1222). The record demonstrates that the mother interfered in the relationship between the father and the children in a manner inconsistent with the best interests of the children, and also demonstrates that the father is more likely than the mother to foster a relationship between the children and the noncustodial parent (see Musachio v. Musachio, 137 AD3d 881, 883; Matter of Feliccia v. Spahn, 108 AD3d at 703).The mother’s remaining contentions are either improperly raised for the first time on appeal or without merit.ROMAN, J.P., COHEN, MILLER and MALTESE, JJ., concur.By Leventhal, J.P.; Cohen, Maltese and Barros, JJ.BAC Home Loans Servicing, LP, etc., res, v. Nili Rychik appellants def — (Index No. 12660/10)In an action to foreclose a mortgage, the defendants Nili Rychik and Shmuel Rychik appeal from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated October 20, 2014. The order, insofar as appealed from, denied that branch of the cross motion of those defendants which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them for lack of standing.ORDERED that the order is affirmed insofar as appealed from, with costs.In February 2008, Nili Rychik and Shmuel Rychik (hereinafter together the defendants) executed a note in the sum of $864,000 in favor of Countrywide Bank, FSB (hereinafter Countrywide). The note was secured by a mortgage on residential property located in Brooklyn. In February 2010, Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide, assigned the mortgage to the plaintiff, BAC Home Loans Servicing, LP, formerly known as Countrywide Home Loans Servicing, LP. In May 2010, the plaintiff commenced this action against the defendants, among others, to foreclose the mortgage. The defendants served an answer in which they asserted the affirmative defense of lack of standing. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint and for an order of reference. The defendants cross-moved, inter alia, pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them on the ground that the plaintiff lacked standing. In an order dated October 20, 2014, the Supreme Court denied the motion and the cross motion. The defendants appeal, as limited by their brief, from so much of the order as denied that branch of their cross motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them for lack of standing.On a defendant’s motion to dismiss the complaint based upon the plaintiff’s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing (see DLJ Mtge. Capital, Inc. v. Pittman, 150 AD3d 818, 820; New York Community Bank v. McClendon, 138 AD3d 805, 806; Bank of N.Y. Mellon v. Green, 132 AD3d 706, 707). A plaintiff has standing to maintain a mortgage foreclosure action where, at the time 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, 787; 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 725, 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 defendants failed to establish, prima facie, the plaintiff’s lack of standing, as they failed to eliminate questions of fact regarding the plaintiff’s standing as the holder or assignee of the note on the date of commencement of the action (see Citicorp Mtge. v. Adams, 153 AD3d 779, 780; LGF Holdings, LLC v. Skydel, 139 AD3d 814, 815; Bank of N.Y. Mellon v. Green, 132 AD3d at 707). The defendants’ remaining contention is without merit. Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ cross motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them for lack of standing.LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Balkin, J.P.; Chambers, Austin and Lasalle, JJ.PEOPLE, etc., res, v. Pedro Santos, ap — (Ind. No. 141/11)Appeal by the defendant from a judgment of the Supreme Court, Nassau County (William O’Brien, J.), rendered April 22, 2016, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the conviction of criminal possession of a weapon in the fourth degree under count two of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.The defendant was charged with murder in the second degree and two counts of criminal possession of a weapon in the fourth degree with respect to an incident that resulted in the death of Yunior Maldonado. A previous trial ended with the defendant’s convictions of murder in the second degree and criminal possession of a weapon in the fourth degree on the count relating to a machete. The defendant was acquitted of criminal possession of a weapon in the fourth degree on the count relating to a knife. On appeal, this Court reversed the judgment and ordered a new trial (see People v. Santos, 112 AD3d 757, 758). At the retrial, the defendant again was convicted of murder in the second degree, and was convicted of criminal possession of a weapon in the fourth degree on the count relating to the knife. He was acquitted of criminal possession of a weapon in the fourth degree on the count relating to the machete.As the People correctly concede, the defendant’s conviction at the retrial of criminal possession of a weapon in the fourth degree on the count relating to the knife, after having been acquitted of that charge at the first trial, violated the defendant’s rights under the Double Jeopardy Clause of the United States Constitution (see People v. Biggs, 1 NY3d 225, 228-229).The defendant contends that the evidence at the retrial was legally insufficient to support his conviction of murder in the second degree and that the verdict was against the weight of the evidence. He contends that internal contradictions and inconsistencies in the testimony of the People’s main witness, as well as the benefits given to that witness in exchange for his testimony, rendered the witness’s testimony incredible. He contends that the People therefore failed to prove that he caused the victim’s death or that he acted in concert with the codefendant with the intent to cause the victim’s death.Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the defendant, either acting in concert with the codefendant or by his own acts, intentionally caused the victim’s death (see Penal Law §125.25[1]; People v. Allah, 71 NY2d 830, 831-832; cf. People v. Rivera, 84 NY2d 766, 769).Moreover, 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), 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; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt of murder in the second degree was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).BALKIN, J.P., CHAMBERS, AUSTIN and LASALLE, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.MATTER of Shau Chung Hu, etc., petitioner/ plf-ap, v. Lowbet Realty Corp. respondents/def, 973 44th Street Realty, LLC, respondent/def-res — (Index No. 22533/11)defendant-respondent.In a hybrid proceeding, inter alia, pursuant to Business Corporation Law article 11 and action, inter alia, for rescission of the sale of real property, the petitioner/plaintiff appeals from (1) an order of the Supreme Court, Kings County (Carolyn E. Demarest, J.), dated April 14, 2015, and (2) a judgment of the same court dated August 12, 2015. The order, insofar as appealed from, granted the motion of the respondent/defendant 973 44th Street Realty, LLC, for summary judgment dismissing the amended petition/complaint insofar as asserted against it, denied the petitioner/plaintiff’s motion for summary judgment on the cause of action for rescission of the sale of the subject property, and denied the petitioner/plaintiff’s cross motion for summary judgment dismissing certain affirmative defenses asserted by the respondent/defendant 973 44th Street Realty, LLC. The judgment, insofar as appealed from, dismissed the amended petition/complaint insofar as asserted against the respondent/defendant 973 44th Street Realty, LLC.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the respondent/defendant 973 44th Street Realty, LLC.The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of 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]).In October 2011, Shau Chung Hu (hereinafter the petitioner) filed a petition pursuant to Business Corporation Law article 11, seeking, inter alia, a declaration that he owns a 75 percent interest in Lowbet Realty Corp. (hereinafter Lowbet), the sole asset of which was an apartment building located at 973 44th Street in Brooklyn, and to wind up Lowbet’s affairs and sell the property. The petitioner had purchased Lowbet and the property in 1979. Margaret Liu subsequently bought shares in Lowbet and became its president. The petitioner and Liu married in 1985 and then separated in 1995, after which the petitioner moved to China. Since 1995, Liu has run the day-to-day business of Lowbet, with the petitioner’s knowledge and consent. In August 2006, Liu was removed as president of Lowbet and the petitioner and his son were named president and vice president, respectively. However, the petitioner did not update this information with the Department of State Division of Corporations.Contemporaneously with the filing of the petition in October 2011, a temporary restraining order was issued prohibiting the petitioner and Liu from participating in the management of the property or removing assets of Lowbet without further direction of the Supreme Court. The petitioner did not file a notice of pendency or the temporary restraining order with the Office of the City Register at that time. On February 22, 2012, 973 44th Street Realty, LLC (hereinafter 44th Street Realty), purchased the property from Lowbet. Liu signed the deed on behalf of Lowbet. At the time of the closing, Liu was listed as the president, chairperson, or CEO of Lowbet with various state and city agencies. The petitioner was not informed about the sale until April 2012.Subsequently, the petitioner filed an amended petition/complaint seeking, inter alia, rescission of the sale of the property predicated on fraud and pursuant to Business Corporation Law §1114, and adding, among others, 44th Street Realty as a respondent/defendant. The petitioner alleged that 44th Street Realty knew or should have known that the petitioner had an interest in the property and that Liu was unauthorized to conduct the transaction. 44th Street Realty moved for summary judgment dismissing the amended petition/complaint insofar as asserted against it. The petitioner moved for summary judgment on the cause of action for rescission of the sale of the property and cross-moved for summary judgment dismissing certain affirmative defenses asserted by 44th Street Realty. In an order dated April 15, 2015, the Supreme Court granted 44th Street Realty’s motion and denied the petitioner’s motion and cross motion. A judgment dismissing the amended petition/complaint insofar as asserted against 44th Street Realty was entered upon the order. The petitioner appeals.We agree with the Supreme Court’s determination to grant 44th Street Realty’s motion for summary judgment dismissing the amended petition/complaint insofar as asserted against it, and to deny the petitioner’s motion for summary judgment on the cause of action for rescission of the sale of the property and cross motion for summary judgment dismissing certain of 44th Street Realty’s affirmative defenses. 44th Street Realty established, prima facie, that the subject deed was only voidable, not void ab initio, since the petitioner alleged that Liu’s signature and authority to convey were acquired by fraudulent means, but did not allege that Liu’s signature was forged (see Faison v. Lewis, 25 NY3d 220, 224-225).44th Street Realty also established, prima facie, that Liu was cloaked with apparent authority to sign the deed on behalf of Lowbet. The petitioner had condoned Liu’s unfettered control and operation of the day-to-day business of Lowbet, which gave rise to the appearance that Liu possessed authority to enter into a real estate transaction on behalf of Lowbet (see Hallock v. State, 64 NY2d 224, 231; Jesmer v. Retail Magic, Inc., 55 AD3d 171, 182). Under the circumstances, 44th Street Realty’s reliance upon the appearance of Liu’s authority was reasonable (see Merrell-Banco Agency, LLC v. HSBC Bank USA, 20 AD3d 605, 608-609).Further, 44th Street Realty made a prima facie showing that it was a bona fide purchaser by demonstrating that it had paid valuable consideration for the property, in good faith and without knowledge of any alleged fraud by Liu (see Morris v. Adams, 82 AD3d 946, 947; Commandment Keepers Ethiopian Hebrew Congregation of the Living God, Pillar & Ground of Truth, Inc. v. 31 Mount Morris Park, LLC, 76 AD3d 465). Real Property Law §§266 and 291 protect the title of a bona fide purchaser for value who lacks knowledge of fraud by the grantor or affecting the grantor’s title (see Matter of Raccioppi, 128 AD3d 838, 839; Bouffard v. Befese, LLC, 111 AD3d 866, 870). 44th Street Realty’s submissions established that it had no knowledge of facts that would lead a reasonably prudent purchaser to inquire about possible fraud (see Morris v. Adams, 82 AD3d at 947).In opposition to 44th Street Realty’s motion, the petitioner failed to raise a triable issue of fact.The petitioner’s remaining contentions are without merit.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Roman, J.P.; Lasalle, Connolly and Christopher, JJ.Deutsche Bank National Trust Company, etc., ap, v. Laveda Delisser respondents def — (Index No. 26319/07)In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Marsha L. Steinhardt, J.), entered January 26, 2016. The order granted that branch of the motion of the defendant Laveda Delisser which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her, and granted the motion of the defendant Home Heating Oil, Inc., pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it.ORDERED that the order is reversed, on the law, with costs, that branch of the motion of the defendant Laveda Delisser which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her, and the motion of the defendant Home Heating Oil, Inc., pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it are denied.In July 2007, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendants Laveda Delisser and Home Heating Oil, Inc. (hereinafter Home Heating; hereinafter together the defendants). The defendants failed to appear, answer the complaint, or move with respect to the complaint. Subsequently, Delisser moved, inter alia, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her, and Home Heating moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it. In the order appealed from, the Supreme Court granted that branch of Delisser’s motion and granted Home Heating’s motion, finding that the plaintiff failed to take proceedings for the entry of a default judgment within one year of the defendants’ default. We reverse.CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” ”It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c)” (US Bank N.A. v. Dorestant, 131 AD3d 467, 469; see HSBC Bank USA, N.A. v. Roldan, 155 AD3d 942, 944; Wells Fargo Bank, N.A. v. Combs, 128 AD3d 812, 813). ”Rather, it is enough that the plaintiff timely takes ‘the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference’ to establish that it ‘initiated proceedings for entry of a judgment within one year of the default’ for the purposes of satisfying CPLR 3215(c)” (HSBC Bank USA, N.A. v. Traore, 139 AD3d 1009, 1010, quoting Wells Fargo Bank, N.A. v. Combs, 128 AD3d at 813; see HSBC Bank USA, N.A. v. Roldan, 155 AD3d at 944). Here, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference (see RPAPL 1321[1]) in October 2007, within one year of the defendants’ default and, thus, did not abandon the action (see CPLR 3215[c]; HSBC Bank USA, N.A. v. Roldan, 155 AD3d at 944; Wells Fargo Bank, N.A. v. Mayen, 155 AD3d 811; HSBC Bank USA, N.A. v. Traore, 139 AD3d at 1011; US Bank N.A. v. Dorestant, 131 AD3d at 469; Wells Fargo Bank, N.A. v. Combs, 128 AD3d at 813; Klein v. St. Cyprian Props., Inc., 100 AD3d 711, 712).Accordingly, the Supreme Court should have denied that branch of Delisser’s motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her, and Home Heating’s motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it.We do not address the plaintiff’s arguments regarding its cross motion to vacate a conditional order of dismissal and an order of reference dated October 2, 2009, and for a new order of reference. The Supreme Court did not determine the plaintiff’s cross motion and, therefore, it remains pending and undecided (see Katz v. Katz, 68 AD2d 536, 542-543).ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.By Cohen, J.P.; Miller, Connolly and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Delor Fuentes, ap — (Ind. No. 160/12)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 March 8, 2017 (People v. Fuentes, 148 AD3d 824), affirming a judgment of the Supreme Court, Kings County, rendered August 18, 2014.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).COHEN, J.P., MILLER, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros and Brathwaite Nelson, JJ.PEOPLE, res, v. Alfred E. Balcuns, ap — Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated January 26, 2017, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.At a hearing pursuant to the Sex Offender Registration Act (see Correction Law §168 et seq.; hereinafter SORA), the defendant was assessed 80 points under the Risk Assessment Instrument, which would have placed him within the range for a presumptive level two designation. However, based upon the defendant’s 2001 conviction of sexual abuse in the first degree stemming from sex abuse charges involving a two-year-old or three-year-old child, the Board of Examiners of Sex Offenders recommended that the defendant be classified as a level three sex offender, as a defendant is deemed a presumptive level three predicate sex offender in circumstances where, as here, the defendant had committed repeated sex offenses (see People v. Berry, 138 AD3d 945, 946; People v. Roache, 110 AD3d 776, 777; People v. Carter, 85 AD3d 995, 996).The defendant contends that the County Court improvidently exercised its discretion in denying his request for a downward departure from the presumptive risk level.A defendant seeking a downward departure from the presumptive risk level has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Wyatt, 89 AD3d 112, 128; see People v. Gillotti, 23 NY3d 841, 861; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). Here, the mitigating circumstances identified by the defendant either were adequately taken into account by the SORA Guidelines or were not proven by a preponderance of the evidence (see People v. Velasquez, 145 AD3d 924, 924-925; People v. Game, 131 AD3d 460, 461; People v. Coleman, 122 AD3d 599, 599-600; People v. Wyatt, 89 AD3d at 131).Accordingly, the County Court properly denied the defendant’s request for a downward departure from his presumptive risk level designation.SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Miller, Nelson and Iannacci, JJ.World Ambulette Transportation, Inc., res, v. Kwan Haeng Lee, ap — (Index No. 5641/13)Rha & Kim, LLP, Bayside, NY (Andrew D. Grossman of counsel), for respondent.In an action, inter alia, to recover damages for conversion, the defendant appeals from a judgment of the Supreme Court, Queens County (Marguerite A. Grays, J.), entered March 4, 2016. The judgment, insofar as appealed from, upon the granting of those branches of the plaintiff’s motion pursuant to CPLR 4401, made at the close of evidence, which were to dismiss the defendant’s second and third counterclaims, and upon a decision of the same court dated July 17, 2015, made after a nonjury trial, is in favor of the plaintiff and against the defendant in the total sum of $12,014.05 on the second cause of action and, in effect, dismissing the defendant’s counterclaims.ORDERED that on the Court’s own motion, the defendant’s notice of appeal from the decision is deemed to be a premature notice of appeal from the judgment (see CPLR 5520[c]); and it is further,ORDERED that the judgment is modified, on the law and the facts, by deleting the provision thereof which is in favor of the plaintiff and against the defendant, in effect, dismissing the defendant’s third counterclaim, and substituting therefor a provision in favor of the defendant and against the plaintiff on the third counterclaim and directing the plaintiff to permit the defendant to examine its books and records; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and that branch of the plaintiff’s motion pursuant to CPLR 4401 which was to dismiss the defendant’s third counterclaim is denied.The plaintiff, a corporation providing medical transportation services, was incorporated by nonparty Dae Chong Chang (hereinafter Chang) in February 2010. The plaintiff commenced this action against the defendant, a former employee, inter alia, to recover damages for conversion. Specifically, the plaintiff alleged that the defendant misused corporate funds to pay for personal expenses.In his answer, the defendant denied the allegations against him and asserted counterclaims to recover damages for breach of contract and wrongful termination of employment, and for an accounting. According to the defendant, he and Chang were equal shareholders of the plaintiff in accordance with an oral agreement they made approximately February 2010 when the plaintiff was formed. The defendant alleged that he and Chang thereafter executed a written agreement dated January 2, 2012 (hereinafter the written agreement). The defendant asserted that the written agreement was a “shareholder agreement,” representing that he owned 49 percent of the plaintiff’s shares. Chang denied these allegations and asserted that the written agreement was a “profit-sharing agreement,” in which he promised to pay the defendant 49 percent of the plaintiff’s profits from 2012.At a nonjury trial, Chang and the defendant gave conflicting testimony as to their understanding of the written agreement, the circumstances under which it was executed, and the defendant’s employment at the plaintiff. They also gave conflicting testimony as to whether the defendant was authorized to use funds in the plaintiff’s checking account to pay for various personal expenses, or whether certain transactions reflected on the plaintiff’s bank records were made on behalf of the plaintiff.At the close of evidence, the plaintiff moved pursuant to CPLR 4401 to dismiss the defendant’s counterclaims. The Supreme Court granted those branches of the plaintiff’s motion which were to dismiss the defendant’s second and third counterclaims, alleging wrongful termination of employment and for an accounting, respectively.In a decision dated July 17, 2015, the Supreme Court, citing extrinsic evidence presented at trial relating to the parties’ intent, concluded that the parties had “entered into nothing more than a profit sharing agreement, despite the wording of the agreement dated January 2, 2012.” Accordingly, the court dismissed the defendant’s first counterclaim, alleging breach of contract. In addition, the court determined that the defendant made unauthorized expenditures totaling $8,496.81. Based on these findings, the court, inter alia, determined that the defendant was liable for conversion as alleged in the second cause of action of the plaintiff’s complaint. A judgment was subsequently entered upon the decision. The defendant appeals.“‘In reviewing a determination made after a nonjury trial, this Court’s power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses’” (Quadrozzi v. Estate of Quadrozzi, 99 AD3d 688, 691, quoting BRK Props., Inc. v. Wagner Ziv Plumbing & Heating Corp., 89 AD3d 883, 884; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492, 499; Bryant v. Broadcast Music, Inc., 143 AD3d 934, 935; Neiss v. Fried, 127 AD3d 1044, 1046). ”Where the trial court’s findings of fact rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court’s credibility determinations” (Bennett v. Atomic Prods. Corp., 132 AD3d 928, 930; see Neiss v. Fried, 127 AD3d at 1046).Contrary to the defendant’s contention, we agree with the Supreme Court’s determination that he was liable for conversion. In order “‘[t]o establish a cause of action to recover damages for conversion, the plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff’s rights’” (National Ctr. for Crisis Mgmt., Inc. v. Lerner, 91 AD3d 920, 920, quoting Cusack v. American Defense Sys., Inc., 86 AD3d 586, 587; see Nugent v. Hubbard, 130 AD3d 893, 895; Mackey Reed Elec., Inc. v. Morrone & Assoc., P.C., 125 AD3d 822, 824). ”‘[C]onversion occurs when funds designated for a particular purpose are used for an unauthorized purpose’” (Petrone v. Davidoff Hutcher & Citron, LLP, 150 AD3d 776, 777, quoting East Schodack Fire Co., Inc. v. Milkewicz, 140 AD3d 1255, 1256; see Goldberger v. Rudnicki, 94 AD3d 1047, 1048; Lemle v. Lemle, 92 AD3d 494, 497; Meese v. Miller, 79 AD2d 237, 243-244).Here, the plaintiff presented credible proof that the defendant made numerous unauthorized purchases using the plaintiff’s debit card, and the defendant failed to present a persuasive defense. Accordingly, we agree with the Supreme Court’s determination that the defendant was liable for conversion (see Lemle v. Lemle, 92 AD3d at 497; National Ctr. for Crisis Mgmt., Inc. v. Lerner, 91 AD3d at 921; Lerner v. Ayervais, 66 AD3d 644, 645; see also BNG Props., LLC v. Sanborn, 153 AD3d 1221, 1222; Zwarycz v. Marnia Const., Inc., 130 AD3d 922, 923; Gomez v. Eleni, LLC, 122 AD3d 797, 798-799).However, we disagree with the Supreme Court to the extent that it determined that the parties’ written agreement constituted nothing more than a profit-sharing agreement. ”A court’s fundamental objective in interpreting a contract is to determine the parties’ intent from the language employed and to fulfill their reasonable expectations” (Landmark Ventures, Inc. v. H5 Tech., Inc., 152 AD3d 657, 658; see W.W.W. Assoc. v. Giancontieri, 77 NY2d 157, 162; St. John’s Univ., N.Y. v. Butler Rogers Baskett Architects, P.C., 92 AD3d 761, 763). To this end, “‘a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms’” (Legum v. Russo, 133 AD3d 638, 639, quoting MHR Capital Partners LP v. Presstek Inc., 12 NY3d 640, 645). A contract is ambiguous if the terms are “reasonably susceptible of more than one interpretation” (Chimart Assoc. v. Paul, 66 NY2d 570, 573; see Evans v. Famous Music Corp., 1 NY3d 452, 458; Greenfield v. Philles Records, 98 NY2d 562, 569). ”Whether or not a writing is ambiguous is a question of law to be resolved by the courts” (W.W.W. Assocs. v. Giancontieri, 77 NY2d at 162; see Arnell Constr. Corp. v. New York City Sch. Constr. Auth., 144 AD3d 714, 716). ”[A] court should determine the intent of the parties from within the four corners of the contract without looking to extrinsic evidence to create ambiguities” (Hoeg Corp. v. Peebles Corp., 153 AD3d 607, 608; see Brad H. v. City of New York, 17 NY3d 180, 186; Consedine v. Portville Cent. School Dist., 12 NY3d 286, 293; Innophos, Inc. v. Rhodia, S.A., 10 NY3d 25, 29; Bailey v. Fish & Neave, 8 NY3d 523, 528; South Rd. Assoc., LLC v. International Bus. Machs. Corp., 4 NY3d 272, 277-278).Here, we disagree with the Supreme Court’s reliance upon extrinsic evidence to conclude that the parties had “entered into nothing more than a profit sharing agreement, despite the wording of the agreement dated January 2, 2012.” Contrary to the court’s conclusion, the written agreement was not ambiguous such that it could be construed as a profit-sharing agreement. The written agreement is entitled “Shareholder Agreement,” and it contains numerous provisions setting forth the rights and obligations of shareholders. In addition, the written agreement provides in paragraph 5, under the section entitled “Warranties,” that Chang owns 102 Class “A” shares and that the defendant owns 98 Class “A” shares. Accordingly, the plain language of the written agreement unambiguously demonstrates that the defendant was a shareholder (see generally All Seasons Fuels, Inc. v. Morgan Fuel & Heating Co., Inc., 156 AD3d 591; Belle Harbor Wash. Hotel, Inc. v. Jefferson Omega Corp., 17 AD3d 612, 612-613).Under Business Corporation Law §624, a shareholder “‘has both statutory and common-law rights to inspect the books and records of a corporation if inspection is sought in good faith and for a valid purpose’” (JAS Family Trust v. Oceana Holding Corp., 109 AD3d 639, 642, quoting Matter of Liaros v. Ted’s Jumbo Red Hots, Inc., 96 AD3d 1464, 1464-1465). To prevail on a cause of action for an accounting, in addition to being a shareholder, a party must show that he or she demanded an accounting and that the demand was refused by the corporation, or that such demand would have been futile (see Walsh v. Wwebnet, Inc., 116 AD3d 845, 846-848). Here, contrary to the Supreme Court’s conclusion, the defendant sustained his burden of demonstrating his entitlement to an accounting. Accordingly, the court should have denied that branch of the plaintiff’s motion pursuant to CPLR 4401, made at the close of evidence, which was to dismiss the defendant’s third counterclaim for an accounting, and should have entered a judgment in favor of the defendant on that counterclaim and directing the plaintiff to permit the defendant to examine the plaintiff’s books and records (see Matter of Koch v. Specto Opt., 184 AD2d 701, 704; see also O’Brien v. O’Brien, 75 AD2d 641; LoVerde v. Interex Design & Equip. Corp., 54 AD2d 1090).However, notwithstanding the defendant’s status as a shareholder, he nevertheless failed to establish, as alleged in his first counterclaim, that the plaintiff breached the written agreement. Contrary to the defendant’s contention, the written agreement did not entitle him to any employment position within the company, or to any salary. In addition, the defendant failed to demonstrate that he had any contractual right to dividends under the terms of the written agreement, or that the plaintiff otherwise breached the written agreement by failing to pay him a portion of any profits earned by the plaintiff. Finally, although the defendant is correct that the written agreement contains a “shot-gun provision” that, under certain circumstances, may entitle a shareholder to certain contractual rights, the defendant failed to demonstrate that he complied with the contractual requirements necessary to invoke that provision. Accordingly, contrary to the defendant’s contention, he was not entitled to a judgment in his favor on his first counterclaim.The defendant’s contention that the Supreme Court erred in dismissing his second counterclaim to recover damages for wrongful termination is also without merit. While the defendant is correct that “[a] majority shareholder in a close corporation is in a fiduciary relationship with the minority” (Richbell Info. Servs. v. Jupiter Partners, 309 AD2d 288, 300), Chang was not required to hold a director’s meeting on notice before terminating the defendant’s employment as a driver and dispatcher at the plaintiff (see generally Ingle v. Glamore Motor Sales, 73 NY2d 183, 188). Furthermore, given the absence of any agreement “establishing a fixed duration,” the defendant’s employment relationship with the plaintiff was “at will” and, therefore, “terminable at any time by either party” (Goldman v. White Plains Ctr. for Nursing Care, LLC, 11 NY3d 173, 177 [internal quotation marks omitted]; see Sabetay v. Sterling Drug, 69 NY2d 329, 333).The defendant’s remaining contention is without merit.RIVERA, J.P., MILLER, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Scheinkman, P.J.; Balkin, Sgroi, Nelson and Christopher, JJ.PEOPLE, etc., res, v. Tiara Ferebee, ap — (Ind. No. 2668/16)Paul Skip Laisure, New York, NY (Meredith S. Holt of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Merri Turk Lasky of counsel; Marina Kosmetatos on the memorandum), for respondent.Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Queens County (Dorothy Chin-Brandt, J., at plea; Stephanie Zaro, J., at sentence), imposed January 10, 2017, upon her plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived her right to appeal (see People v. Sanders, 25 NY3d 337, 339-342; People v. Lopez, 6 NY3d 248, 256-257; cf. People v. Brown, 122 AD3d 133, 145-146). The defendant’s valid waiver of her right to appeal precludes review of her contention that the sentence imposed was excessive (see People v. Lopez, 6 NY3d at 255-256).SCHEINKMAN, P.J., BALKIN, SGROI, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.By Roman, J.P.; Lasalle, Connolly and Christopher, JJ.UB Distributors, LLC, res, v. S.K.I. Wholesale Beer Corporation ap — (Index No. 29238/09)In an action, inter alia, to recover damages for fraud, the defendants appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated September 18, 2015. The order, insofar as appealed from, denied the defendants’ motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff commenced this action against the defendants asserting causes of action sounding in fraud, negligent misrepresentation, conversion, and unjust enrichment, among other things. The plaintiff alleged that the defendants fraudulently obtained payments from it under the Returnable Container Act by redeeming empty beverage containers that had already been redeemed by a deposit initiator (see ECL 27-1007[4], [6], [7]). The plaintiff alleged in particular that sudden and drastic shifts in the defendants’ empty container redemption volume indicated fraudulent activity and corresponded in time with a double-redemption scheme uncovered on Long Island in the summer of 2009. The defendants denied these allegations and asserted counterclaims against the plaintiff.The defendants moved for summary judgment dismissing the complaint, arguing, among other things, that the plaintiff lacked any direct evidence of their participation in the scheme. The plaintiff opposed and cross-moved for summary judgment dismissing the defendants’ counterclaims. The Supreme Court denied the motion and cross motion. The defendants appeal, as limited by their brief, from the denial of their motion, and we affirm the order insofar as appealed from.On a motion for summary judgment, a moving defendant does not establish its prima facie entitlement to judgment as a matter of law by merely pointing to gaps in the plaintiff’s case. The moving defendant must affirmatively demonstrate the merit of its claim or defense (see Zuckerman v. City of New York, 49 NY2d 557, 562; Collado v. Jiacono, 126 AD3d 927, 928).Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law. While the defendants submitted the deposition transcripts of their two principals and warehouse manager in which those witnesses denied that the defendants engaged in a double-redemption scheme, those witnesses also testified that the defendants kept no records of their container redemption transactions or records of a “cashbox” they used to pay some of their redemption expenses. Those witnesses offered vague and conflicting testimony as to why the defendants’ redemption volume fell so drastically around the time prosecutors acted on the double-redemption scheme on Long Island. Where, as here, conflicting inferences can be drawn from the evidence and issues of credibility exist, summary judgment is inappropriate (see Bykov v. Brody, 150 AD3d 808, 809; Vanderhurst v. Nobile, 130 AD3d 716, 717; Cortale v. Educational Testing Serv., 251 AD2d 528, 531).In light of the defendants’ failure to meet their prima facie burden, we agree with the Supreme Court’s determination to deny their motion for summary judgment, regardless of the sufficiency of the plaintiff’s opposition papers (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).The defendants’ remaining contentions are academic in light of our determination.ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.By Roman, J.P.; Sgroi, Connolly and Christopher, JJ.Ashley Silvering, etc. ap, v. Sunrise Family Medical, P.C., def, Gina Guschel, res — (Index No. 30911/12)In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated July 12, 2016. The order granted the motion of the defendant Gina Guschel pursuant to CPLR 5015(a)(4) to vacate an order of the same court entered April 15, 2014, which granted leave to enter a defualt judgment against her, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her, and denied the plaintiffs’ application pursuant to CPLR 306-b to extend their time to serve the defendant Gina Guschel with the summons and complaint.ORDERED that on the Court’s own motion, the notice of appeal from so much of the order as denied the plaintiffs’ application pursuant to CPLR 306-b to extend their time to serve the defendant Gina Guschel with the summons and complaint is treated as an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted (see CPLR 5701[c]); and it is further,ORDERED that the order is affirmed, with costs.On April 17, 2010, the plaintiff Ashley Silvering (hereinafter the plaintiff) allegedly was injured when she fell off an examination table at the premises of the defendant Sunrise Family Medical, P.C. (hereinafter Sunrise). On or about October 5, 2012, the plaintiff, and her husband suing derivatively, commenced this action, inter alia, to recover damages for medical malpractice and negligence. Approximately three months later, the plaintiffs filed an affidavit stating that the defendant Gina Guschel (hereinafter the defendant) was served with the summons and complaint pursuant to CPLR 308(2) at the address of Sunrise, which was alleged to be her actual place of business. When the defendant failed to appear or answer, the Supreme Court, by order entered April 15, 2014, granted the plaintiffs’ unopposed motion for leave to enter a default judgment on the issue of liability against the defendant.The defendant thereafter moved pursuant to CPLR 5015(a)(4) to vacate the order entered April 15, 2014, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. The plaintiffs opposed the motion and made an application for an extension of time to serve the defendant with the summons and complaint. The Supreme Court granted the motion and denied the application. The plaintiffs appeal.The plaintiffs failed to establish that the defendant was served at her “actual place of business” pursuant to CPLR 308(2). It is undisputed that the defendant was no longer employed by Sunrise at the time that the plaintiffs attempted to serve her (see 1136 Realty, LLC v. 213 Union St. Realty Corp., 130 AD3d 590, 591; Selmani v. City of New York, 100 AD3d 861; Simmons v. Boro Med., 270 AD2d 477, 479). Further, there is no indication that the defendant engaged in any conduct which was designed to conceal the address of her actual place of business. Thus, the process server’s alleged reliance on a representation made to him by an individual at Sunrise that Sunrise was the defendant’s actual place of business did not serve to estop the defendant from challenging service (see Dorfman v. Leidner, 76 NY2d 956, 957-958; Feinstein v. Bergner, 48 NY2d 234, 241-242; Continental Hosts v. Levine, 170 AD2d 430; Schurr v. Fillebrown, 146 AD2d 623, 624). Accordingly, the plaintiffs’ attempted service of the summons and complaint on the defendant was defective as a matter of law (see Selmani v. City of New York, 100 AD3d at 861; Munoz v. Reyes, 40 AD3d 1059; Rios v. Zorrilla, 8 AD3d 463).To the extent the Supreme Court concluded that it lacked discretion to consider the plaintiffs’ application pursuant to CPLR 306-b to extend their time to serve the defendant, which was not presented in a proper cross motion pursuant to CPLR 2215, we disagree. Although “a party seeking relief in connection with another party’s motion is, as a general rule, required to do so by way of a cross motion,” courts “retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215″ (Fried v. Jacob Holding, Inc., 110 AD3d 56, 64-65; see Smulczeski v. Smulczeski, 128 AD3d 671, 672).Nonetheless, the plaintiffs would not have been entitled to the requested relief had they made a cross motion pursuant to CPLR 2215. Having failed to investigate whether the defendant still worked at Sunrise, the plaintiffs failed to demonstrate that they exercised reasonable diligence in attempting to effect service. Thus, the plaintiffs were not entitled to an extension of time for “good cause” (CPLR 306-b; see Hobbins v. North Star Orthopedics, PLLC, 148 AD3d 784; Kazimierski v. New York Univ., 18 AD3d 820; see generally Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 104-106; Bumpus v. New York City Tr. Auth., 66 AD3d 26, 31). Nor did the plaintiffs demonstrate circumstances warranting an extension of time “in the interest of justice” (CPLR 306-b). The plaintiffs did not exercise diligence in serving the defendant, the defendant had no notice of the action until over two years after expiration of the statute of limitations, and there was no showing of merit to the plaintiffs’ causes of action (see Brown v. Sanders, 142 AD3d 940, 941; Wilbyfont v. New York Presbyt. Hosp., 131 AD3d 605, 607).Accordingly, the order granting the defendant’s motion and denying the plaintiffs’ application must be affirmed insofar as appealed from.ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Hinds-Radix, Duffy and Lasalle, JJ.MATTER of Gregory Gibbs, ap, v. New York City Employees Retirement System, res — (Index No. 12397/14)In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees’ Retirement System dated May 8, 2014, which adopted the recommendation of the Medical Board of the New York City Employees’ Retirement System and denied the petitioner’s application for disability retirement benefits pursuant to Retirement and Social Security Law §507-c, the petitioner appeals from a judgment of the Supreme Court, Kings County (Kathy J. King, J.), dated May 22, 2015. The judgment denied the petition and, in effect, dismissed the proceeding.ORDERED that the judgment is affirmed, with costs.On February 7, 2011, the petitioner was injured while working as a correction officer with the New York City Department of Correction. On April 29, 2011, he applied for disability retirement benefits pursuant to Retirement and Social Security Law §507-c. On May 8, 2014, the Board of Trustees of the New York City Employees’ Retirement System (hereinafter the Board of Trustees) denied the petitioner’s application. In doing so, the Board of Trustees adopted the recommendation of the Medical Board of the New York City Employees’ Retirement System (hereinafter the Medical Board), which had determined that, although the petitioner was disabled due to severe degenerative osteoarthritis of the right and left hip joints, this disabling condition was the result of the natural progression of a preexisting degenerative condition, and was not caused or aggravated by his work-related injuries.The petitioner commenced this CPLR article 78 proceeding to review the determination of the Board of Trustees. In the judgment appealed from, the Supreme Court denied the petition and, in effect, dismissed the proceeding, finding that the determination was supported by credible medical evidence and thus was not arbitrary and capricious. The petitioner appeals.“[T]he decision of the [B]oard of [T]rustees as to the cause of an officer’s disability will not be disturbed unless its factual findings are not supported by substantial evidence or its final determination and ruling is arbitrary and capricious” (Matter of Canfora v. Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 60 NY2d 347, 351). ”Substantial evidence” in this context means “some credible evidence” (Matter of Borenstein v. New York City Employees’ Retirement Sys., 88 NY2d 756, 760 [internal quotation marks omitted]; see Matter of Hernandez v. New York City Employees’ Retirement Sys., 148 AD3d 706, 707; Matter of Jones v. New York City Employees’ Retirement Sys., 138 AD3d 852, 852).Here, the conclusions of the Medical Board, which were adopted by the Board of Trustees, were supported by credible evidence consisting of the Medical Board’s independent interview and examination of the petitioner, as well as its review of the medical records and reports from the petitioner’s treating physicians (see Matter of Meyer v. Board of Trustees of the N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139; Matter of Borenstein v. New York City Employees’ Retirement Sys., 88 NY2d at 761; Matter of Hernandez v. New York City Employees’ Retirement Sys., 148 AD3d 706; Matter of Jones v. New York City Employees’ Retirement Sys., 138 AD3d at 852; Matter of Schlesginger v. New York City Employees’ Retirement Sys., 101 AD3d 736, 737). The petitioner’s remaining contentions are without merit. Accordingly, the Supreme Court properly denied the petition and, in effect, dismissed the proceeding.CHAMBERS, J.P., HINDS-RADIX, DUFFY and LASALLE, JJ., concur.By Balkin, J.P.; Chambers, Roman, Maltese and Connolly, JJ.PEOPLE, etc., res, v. Jose Munoz, ap — (Ind. No. 1484-14)Brian E. O’Donoghue, Kings Park, NY, for appellant.Timothy D. Sini, District Attorney, Riverhead, NY (Michael J. Miller of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (William J. Condon, J.), rendered March 24, 2015, convicting him of attempted burglary in the second 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 appellant.ORDERED that the motion of Brian E. O’Donoghue for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to the appellant’s new counsel assigned herein; and it is further,ORDERED that Scott Lockwood, 1476 Deer Park Avenue, Suite 3, North Babylon, NY, 11703, is assigned as counsel to prosecute the appeal; and it is further,ORDERED that the respondent is directed to furnish a copy of the certified transcript of the proceedings to the appellant’s new assigned counsel; and it is further,ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of the date of this decision and order on motion, and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court dated October 13, 2015, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers, including a certified transcript of the proceedings, and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.The brief submitted by the appellant’s counsel pursuant to Anders v. California (386 US 738) is deficient because it fails to adequately analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v. McNair, 110 AD3d 742; People v. Singleton, 101 AD3d 909, 910; People v. Ovalle, 99 AD3d 1023, 1024; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256). Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v. California, we must assign new counsel to represent the appellant (see People v. Rivera, 142 AD3d 512, 513; People v. Parker, 135 AD3d 966, 968; People v. Sedita, 113 AD3d 638, 639-640; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258).BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur.By Leventhal, J.P.; Cohen, Maltese and Barros, JJ.Chaim Lissauer, res, v. GuideOne Specialty Mutual Insurance, ap — (Index No. 4509/11)In an action pursuant to Insurance Law §3420(a)(2) to recover the amount of an unsatisfied judgment in favor of the plaintiff and against the defendant’s purported insured, the defendant appeals from a judgment of the Supreme Court, Kings County (Francois A. Rivera, J.), dated September 8, 2015. The judgment, upon an order of the same court dated October 31, 2014, granting the plaintiff’s motion for summary judgment on the complaint and denying the defendant’s cross motion for summary judgment dismissing the complaint, is in favor of the plaintiff and against the defendant in the principal sum of $1,041,116.50.ORDERED that the judgment is reversed, on the law, with costs, the plaintiff’s motion for summary judgment on the complaint is denied, the defendant’s cross motion for summary judgment dismissing the complaint is granted, the complaint is dismissed, and the order dated October 31, 2014, is modified accordingly.The plaintiff was a student of a school owned and operated by nonparty Beth Medrash Emek Halacha (hereinafter Beth Medrash) in a building it owned. Beth Medrash also owned and operated a synagogue within the building, and it leased space within the building to residential and commercial tenants. The plaintiff allegedly was injured when he fell while descending an exterior staircase of the building. The plaintiff commenced a personal injury action (hereinafter the underlying action) against Beth Medrash, certain related entities, and Yeshiva Sharei Hatzlucha, Inc. (hereinafter the Yeshiva), which owned and operated an elementary school pursuant to a sublease with a previous tenant (hereinafter the lease). The lease described the demised premises as “Apartment No. 6 located on the 2nd floor and space that was formerly apartments 1 and 2 on the first floor” of the building. The Yeshiva had a liability insurance policy (hereinafter the policy) in effect with the defendant insurer that named Beth Medrash as an additional insured (hereinafter the additional insured provision). The plaintiff obtained a default judgment against Beth Medrash in the underlying action, and subsequently commenced this action pursuant to Insurance Law §3420(a)(2) against the defendant to enforce the additional insured provision of the policy to satisfy the judgment. The plaintiff moved for summary judgment on the complaint, and the defendant cross-moved for summary judgment dismissing the complaint. In an order dated October 31, 2014, the Supreme Court granted the plaintiff’s motion and denied the defendant’s cross motion. The court entered a judgment upon the order in favor of the plaintiff on the complaint. The defendant appeals.The additional insured provision named Beth Medrash as an additional insured “only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [the Yeshiva].” The phrase “arising out of” requires “only that there be some causal relationship between the injury and the risk for which coverage is provided” (Mack-Cali Realty Corp. v. NGM Ins. Co., 119 AD3d 905, 906 [internal quotation marks omitted]; see Worth Constr. Co., Inc. v. Admiral Ins. Co., 10 NY3d 411, 415; Chappaqua Cent. Sch. Dist. v. Philadelphia Indem. Ins. Co., 148 AD3d 980, 982). ”An insurer does not wish to be liable for losses arising from risks associated with… premises for which the insurer has not evaluated the risk and received a premium” (Maroney v. New York Cent. Mut. Fire Ins. Co., 5 NY3d 467, 472). Moreover, “unambiguous provisions of an insurance contract must be given their plain and ordinary meaning” (White v. Continental Cas. Co., 9 NY3d 264, 267; see ABM Mgmt. Corp. v. Harleysville Worcester Ins. Co., 112 AD3d 763, 764). The interpretation of policy language is a question of law for the court (see White v. Continental Cas. Co., 9 NY3d at 267; Chappaqua Cent. Sch. Dist. v. Philadelphia Indem. Ins. Co., 148 AD3d at 982; ABM Mgmt. Corp. v. Harleysville Worcester Ins. Co., 112 AD3d at 764).On his motion for summary judgment, the plaintiff failed to establish, prima facie, that the policy provided coverage to Beth Medrash as an additional insured for his injury. It is undisputed that the Yeshiva did not lease the staircase the plaintiff was descending when he fell, and that the plaintiff was not a student or invitee of the Yeshiva at the time of the accident. Therefore, there was no causal relationship between the plaintiff’s injury and the risk for which coverage was provided (see Atlantic Ave. Sixteen AD, Inc. v. Valley Forge Ins. Co., 150 AD3d 1182, 1184-1185; Christ the King Regional High School v. Zurich Ins. Co. of N. Am., 91 AD3d 806, 809; cf. Regal Constr. Corp. v. National Union Fire Ins. Co. of Pittsburgh, PA, 15 NY3d 34, 38; Chappaqua Cent. Sch. Dist. v. Philadelphia Indem. Ins. Co., 148 AD3d at 982-983). Consequently, the plaintiff’s injury was not a bargained-for risk (see Maroney v. New York Cent. Mut. Fire Ins. Co., 5 NY3d at 473; Chappaqua Cent. Sch. Dist. v. Philadelphia Indem. Ins. Co., 148 AD3d at 983). Accordingly, the Supreme Court should have denied the plaintiff’s motion for summary judgment on the complaint without regard to the sufficiency of the defendant’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).On its cross motion for summary judgment, the defendant established, prima facie, that there was no causal relationship between the accident and the risk for which coverage was provided. In opposition, the plaintiff failed to raise a triable issue of fact (see Atlantic Ave. Sixteen AD, Inc. v. Valley Forge Ins. Co., 150 AD3d at 1184-1185; Chappaqua Cent. Sch. Dist. v. Philadelphia Indem. Ins. Co., 148 AD3d at 982-983; Christ the King Regional High School v. Zurich Ins. Co. of N. Am., 91 AD3d at 808). Accordingly, the Supreme Court should have granted the defendant’s cross motion for summary judgment dismissing the complaint.In light of our determination, we need not reach the defendant’s remaining contention.LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix, Nelson and Iannacci, JJ.PEOPLE, etc., res, v. Frank A. Polk, ap — (Ind. No. 15-00464)Alex Smith, Middletown, NY, for appellant.David M. Hoovler, District Attorney, Middletown, NY (Andrew R. Kass of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Orange County (Edward T. McLoughlin, J.), rendered March 16, 2016, convicting him of assault in the second degree and menacing in the second 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 appellant.ORDERED that the motion of Alex Smith for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to the appellant’s new counsel assigned herein; and it is further,ORDERED that Joseph E. Ruyack, 3 Twin Brooks Drive, Chester, NY, 10918, is assigned as counsel to prosecute the appeal; and it is further,ORDERED that the respondent is directed to furnish a copy of the certified transcript of the proceedings to the appellant’s new assigned counsel; and it is further,ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of the date of this decision and order on motion and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court dated May 17, 2016, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers, including a certified transcript of the proceedings, and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.The brief submitted by the appellant’s counsel pursuant to Anders v. California (386 US 738) is deficient because it fails to contain an adequate statement of facts and fails to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v. McNair, 110 AD3d 742; People v. Singleton, 101 AD3d 909, 910; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256). The statement of facts does not review, in any detail, the County Court’s advisements to the defendant regarding the rights he was forfeiting, the inquiries made of the defendant to ensure that the plea was knowingly and voluntarily entered, or the defendant’s responses to any of those advisements and inquiries (see People v. Deprosperis, 126 AD3d 997, 998; People v. Donovan, 124 AD3d 793, 794; People v. Sedita, 113 AD3d 638, 639-640). In addition, it does not provide any detail regarding the defendant’s factual admission as to the crimes charged or the colloquy regarding the defendant’s purported waiver of his right to appeal (see People v. Ferretti, 148 AD3d 720, 721; People v. Swenson, 130 AD3d 848, 849; People v. Sedita, 113 AD3d at 639-640). Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v. California, we must assign new counsel to represent the appellant (see People v. Rivera, 142 AD3d 512, 513; People v. Parker, 135 AD3d 966, 968; People v. Sedita, 113 AD3d at 639-640; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258).DILLON, J.P., SGROI, HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Leventhal, J.P.; Sgroi, Maltese and Connolly, JJ.Kim S. Carpenter, res, v. Rafael Crespo def, BTML Development Corp., ap — (Index No. 21932/13)In an action, inter alia, for the specific performance of a contract for the sale of real property, the defendant BTML Development Corp. appeals from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated May 25, 2016. The order, insofar as appealed from, upon renewal, denied that branch of the motion of the defendant BTML Development Corp. which was for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is affirmed insofar as appealed from, with costs.The defendants Rafael Crespo and Aracelis Crespo (hereinafter together the Crespos) were the owners of property located at 916 Herkimer Street in Brooklyn (hereinafter the premises). On June 4, 2013, Rafael Crespo entered into a contract with the plaintiff to sell the premises to her. On December 16, 2013, the Crespos sold the premises to the defendant BTML Development Corp. (hereinafter BTML). The deed of sale was recorded on January 3, 2014. The plaintiff commenced this action against the Crespos and BTML. BTML moved for summary judgment dismissing the complaint insofar as asserted against it. The motion was denied as premature with leave to renew. BTML then moved pursuant to CPLR 2221 for leave to renew its motion for summary judgment. The Supreme Court granted renewal but denied summary judgment. BTML appeals, and we affirm the order insofar as appealed from.Where spouses own property as tenants by the entirety, a conveyance by one spouse, to which the other has not consented, cannot bind the entire fee or impair the nonconsenting spouse’s survivorship interest (see V.R.W., Inc. v. Klein, 68 NY2d 560, 564). Thus, generally, where property is held by spouses as tenants by the entirety, an agreement of sale signed by only one spouse is ineffective to constitute an agreement to convey full title, unless it is shown, inter alia, that the nonsigning spouse had complete knowledge of and actively participated in the transaction, that he or she ratified the purchase option after the fact, or that the signing spouse was authorized in writing to act as the nonsigning spouse’s agent MATTER (see Lelekakis v. Kamamis, 41 AD3d 662, 664; Stojowski v. D’Sa, 28 AD3d 645, 646). However, each spouse may sell, mortgage, or otherwise encumber his or her rights in the property, subject to the continuing rights of the other (see V.R.W., Inc. v. Klein, 68 NY2d at 565).Here, in support of its motion for summary judgment, BTML established that the premises was owned by the Crespos as tenants by the entirety and that only Rafael Crespo entered into the contract to sell the premises to the plaintiff. In opposition, the plaintiff failed to raise a triable issue of fact with regard to whether Aracelis Crespo had complete knowledge of and actively participated in the transaction, whether she ratified the sales contract after the fact, or whether Rafael Crespo was authorized in writing to act as Aracelis Crespo’s agent MATTER. Accordingly, BTML demonstrated, as a matter of law, that the plaintiff’s contract was unenforceable against Aracelis Crespo’s interest in the premises (see V.R.W., Inc. v. Klein, 68 NY2d at 564-565; Lelekakis v. Kamamis, 41 AD3d at 664; Stojowski v. D’Sa, 28 AD3d at 645-646).However, BTML failed to establish its prima facie entitlement to judgment as a matter of law on the ground that the plaintiff’s contract was unenforceable against Rafael Crespo’s interest in the premises, either because the plaintiff was not ready, willing, and able to perform or because BTML was a bona fide purchaser whose conveyance was first duly recorded. ”‘Before specific performance of a contract for the sale of real property may be awarded, a plaintiff must demonstrate that he or she was ready, willing, and able to perform on the original law day or, if time is not of the essence, on a subsequent date fixed by the parties or within a reasonable time thereafter’” (Clarke v. Bastien, 128 AD3d 632, 633, quoting Dairo v. Rockaway Blvd. Props., LLC, 44 AD3d 602, 602; see Chavez v. Eli Homes, Inc., 7 AD3d 657, 659).Here, neither the plaintiff’s contract nor the circumstances surrounding its execution indicated that time was of the essence (see Nuzzi Family Ltd. Liab. Co. v. Nature Conservancy, 304 AD2d 631, 632). BTML’s submissions failed to eliminate triable issues of fact as to whether the closing of the sale to the plaintiff was delayed because Rafael Crespo failed to deliver at least one of the property’s two apartments vacant, as required by the contract. Moreover, although the record contains evidence that, on December 9, 2013, Rafael Crespo’s attorney informed the plaintiff’s attorney that Rafael Crespo wanted to close by December 20, 2013, the Crespos sold the property to BTML on December 16, 2013. Thus, BTML failed to make a prima facie showing that the plaintiff was not ready, willing, and able to perform on a subsequent date fixed by the parties or within a reasonable time thereafter (see Revital Realty Group, LLC v. Ulano Corp., 112 AD3d 902, 904).An executory contract for the sale, purchase, or exchange of real property not recorded as provided for in section 294 of the Real Property Law is void as against any person who subsequently purchases the same real property in good faith and for a valuable consideration, from the same vendor, and whose conveyance is first duly recorded (see Real Property Law §294).Here, BTML failed to eliminate triable issues of fact as to whether it was aware of Rafael Crespo’s contract with the plaintiff before it purchased the premises and, thus, whether it made the purchase in good faith. Therefore, BTML failed to make a prima facie showing that it was a bona fide purchaser whose conveyance was first duly recorded (see Barrett v. Littles, 201 AD2d 444, 444; see also Yen-Te Hsueh Chen v. Geranium Dev. Corp., 243 AD2d 708, 709).Since BTML failed to demonstrate its prima facie entitlement to judgment as a matter of law, we agree with the Supreme Court’s determination denying that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it, regardless of the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).BTML’s remaining contention is without merit.LEVENTHAL, J.P., SGROI, MALTESE and CONNOLLY, JJ., concur.By Roman, J.P.; Sgroi, Connolly and Christopher, JJ.Louis Holbeck, ap, v. A Sosa-Berrios, res — (Index No. 508481/14)Richard T. Lau, Jericho, NY (Kathleen E. Fioretti of counsel), for respondent.In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated February 24, 2016. The order granted the defendant’s motion pursuant to CPLR 306-b and 3211(a) to dismiss the complaint and denied the plaintiff’s cross motion pursuant to CPLR 306-b for leave to extend his time to serve the summons and complaint.ORDERED that the order is affirmed, with costs.The plaintiff allegedly sustained serious injuries after a car driven by the defendant collided with the car the plaintiff was driving. Two days before expiration of the statute of limitations in September 2014, the plaintiff commenced this personal injury action by the filing of a summons and complaint. In January 2015, the plaintiff served the summons and complaint using the affix and mail method at an address in Brooklyn that had been listed as the defendant’s address on the police accident report three years earlier. Unbeknownst to the plaintiff, the defendant had since relocated from that address. After receiving a copy of the summons and complaint in May 2015, the defendant moved pursuant to CPLR 306-b and 3211(a) to dismiss the complaint. The plaintiff cross-moved pursuant to CPLR 306-b for leave to extend the time to serve the defendant. The Supreme Court granted the defendant’s motion and denied the plaintiff’s cross motion. The plaintiff appeals.On this appeal, the plaintiff contends that he was entitled to an extension of time to serve the defendant. Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service upon “good cause shown or in the interest of justice” (see Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 104; Bank v. Estate of Robinson, 144 AD3d 1084, 1085).Here, the plaintiff failed to demonstrate “good cause” for an extension of time, as he did not show that he exercised reasonable diligence in attempting to effect service (see Hobbins v. North Star Orthopedics, PLLC, 148 AD3d 784; Kazimierski v. New York Univ., 18 AD3d 820; see generally Leader v. Maroney, Ponzini & Spencer, 97 NY2d at 104-106; Bumpus v. New York City Trans. Auth., 66 AD3d 26, 31). The plaintiff resorted to affix and mail service after only two attempts to deliver the summons and complaint on a weekday, at approximately the same time of day, when the defendant reasonably could have been expected to be at work (see Prudence v. Wright, 94 AD3d 1073; Estate of Waterman v. Jones, 46 AD3d 63, 66). Further, the affirmation of the plaintiff’s counsel does not indicate that he made any effort to verify that the defendant still resided at the address listed on the three-year-old police report, particularly after efforts to deliver the summons and complaint were unsuccessful (see Prudence v. Wright, 94 AD3d 1073; Estate of Waterman v. Jones, 46 AD3d at 66).In addition, the Supreme Court did not improvidently exercise its discretion in declining to grant the plaintiff an extension of time in the interest of justice. Although, under the interest of justice standard, a plaintiff is not required to make a showing of reasonably diligent efforts at service, “the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” (Leader v. Maroney, Ponzini & Spencer, 97 NY2d at 105-106; see Bumpus v. New York City Trans. Auth., 66 AD3d at 32). Here, as a result of the plaintiff’s lack of diligence in serving the defendant, the defendant did not receive the summons and complaint until approximately 3 months and 3 weeks after expiration of the 120-day period for service, and approximately 7  months after expiration of the statute of limitations. Significantly, there is no evidence that the defendant had any notice of the action until that time. Further, the plaintiff did not adduce evidence tending to show a lack of prejudice to the defendant, and there was no showing of merit to the plaintiff’s claim of having sustained a serious injury, including even a recitation of the injuries he suffered.ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Chambers, Austin and Lasalle, JJ.Susan Ann Mascia, res, v. Richard Kevin Mascia, ap — (Index No. 16644/12)In an action for a divorce and ancillary relief, the defendant appeals from an amended judgment of the Supreme Court, Suffolk County (David T. Reilly, J.), dated July 14, 2015. The amended judgment modified stated portions of the third and fourth decretal paragraphs of a judgment of divorce of the same court dated February 11, 2015.ORDERED that the amended judgment is modified, on the law, by deleting the second decretal paragraph thereof; as so modified, the amended judgment is affirmed, without costs or disbursements.The parties were married on September 24, 1998. The plaintiff commenced this action for a divorce and ancillary relief on May 30, 2012, seeking, inter alia, 50 percent of the total account balances of all of the defendant’s retirement assets. The defendant, who is a New York City firefighter, agreed to an equal division of his retirement assets. Pursuant to a preliminary conference stipulation and order, the retirement assets were to be valued by an expert using the date of the commencement of the action, May 30, 2012, as the date of valuation. At the trial, however, the plaintiff, who proceeded pro se, asked the Supreme Court to consider changing the valuation date of the retirement assets to the date of trial, in light of the nearly 29-month period between the commencement of the action and the trial (cf. Domino v. Domino, 115 AD3d 906). The court agreed to consider the plaintiff’s request and indicated that it would make its determination in its forthcoming decision.After trial, the Supreme Court issued a decision dated December 17, 2014, in which it found, inter alia, that each party was entitled to 50 percent of the retirement assets “valued as of the date of commencement of this action May 30, 2012, subject to future gains and losses” (emphasis added). The decision also called upon the defendant, who was represented by counsel, to submit a judgment.The original judgment of divorce, dated February 11, 2015, provided, in its third decretal paragraph, that the plaintiff was entitled to 50 percent of the defendant’s retirement assets “valued as of the date of commencement of this action May 30, 2012, subject to future gains and losses from December 17, 2014, the date of the court’s decision and order” (emphasis added).By order dated May 6, 2015, the Supreme Court, sua sponte, directed the parties to appear on June 10, 2015. On that date, the defendant and his counsel appeared, but the plaintiff failed to appear. The court expressed its concern about a letter it had received indicating that the defendant had failed to disclose a variable supplemental pension plan. The court further noted that the third decretal paragraph of the judgment did not reflect the intent expressed in the court’s underlying decision, inasmuch as the judgment failed to provide that changes in the value of the retirement assets since the commencement of the action were to be shared equally. An amended judgment was entered thereafter modifying so much of the third decretal paragraph of the original judgment as was necessary to conform the judgment to the underlying decision, and modifying the fourth decretal paragraph of the original judgment to include a reference to the previously undisclosed variable supplemental pension plan. The defendant appeals from the amended judgment.The Supreme Court had the authority to modify the third decretal paragraph of the original judgment, given the discrepancy between the terms of that decretal paragraph and the underlying decision. ”A judgment… must conform strictly to the court’s decision. Where there is an inconsistency between a judgment… and the decision upon which it is based, the decision controls” (Curry v. Curry, 14 AD3d 646, 647 [citations omitted]; see Berry v. Williams, 87 AD3d 958, 961; Reback v. Reback, 73 AD3d 890).However, the Supreme Court was without authority, sua sponte, to modify the fourth decretal paragraph of the original judgment to add a reference to the variable supplemental pension plan, as this was a substantive modification based on new evidence that had not previously been submitted to the court. Such a modification goes beyond the court’s inherent authority to correct a “mistake, defect or irregularity” in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a]; see Herpe v. Herpe, 225 NY 323; Meenan v. Meenan, 103 AD3d 1277; Baum v. Baum, 40 AD2d 1000).The defendant’s remaining contentions are without merit.BALKIN, J.P., CHAMBERS, AUSTIN and LASALLE, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.Demetra Simos, ap, v. Vic-Armen Realty, LLC, et al., respondents def — (Index No. 2517/11)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), dated December 23, 2014. The order, insofar as appealed from, granted those branches of the separate motions of the defendants Vic-Armen Realty, LLC, and Brickwell, LLC, doing business as North Shore Cyclery and doing business as North Shore Cycle which were for summary judgment dismissing the complaint insofar as asserted against each of them.ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the separate motions of the defendants Vic-Armen Realty, LLC, and Brickwell, LLC, doing business as North Shore Cyclery and doing business as North Shore Cycle which were for summary judgment dismissing the complaint insofar as asserted against each of them are denied.On February 18, 2008, the plaintiff allegedly sustained personal injuries when, as she was walking on the sidewalk, her foot became caught in a gap between two cellar doors that were embedded into the sidewalk. Thereafter, she commenced the instant action action against, among others, the owner of the building in front of which the sidewalk and cellar doors were located, Vic-Armen Realty, LLC (hereinafter Vic-Armen), and the lessee of a ground-floor store and the basement that those cellar doors accessed, Brickwell, LLC, doing business as North Shore Cyclery and doing business as North Shore Cycle (hereinafter together the defendants).The defendants separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them, arguing, inter alia, that the alleged defect was not actionable because it was trivial. In opposition, the plaintiff argued, inter alia, that the evidence upon which the defendants relied lacked probative value, and that the alleged defect was not trivial. The Supreme Court granted those branches of the defendants’ separate motions, and the plaintiff appeals.Generally, the issue of whether a dangerous or defective condition exists on the property of another depends on the facts of each case and is a question of fact for the jury (see Trincere v. County of Suffolk, 90 NY2d 976, 977). ”A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” (Hutchinson v. Sheridan Hill House Corp., 26 NY3d 66, 79). In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” (Trincere v. County of Suffolk, 90 NY2d at 978 [internal quotation marks omitted]). There is no “minimal dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable (id. at 977 [internal quotation marks omitted]). Physically small defects may be actionable “when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot” (Hutchinson v. Sheridan Hill House Corp., 26 NY3d at 79).Here, the defendants failed to demonstrate, prima facie, that the gap between the cellar doors in which the plaintiff’s foot allegedly was caught was physically insignificant and that the characteristics of the gap or the surrounding circumstances did not increase the risks it posed to pedestrians (see id.). In support of their motions for summary judgment, the defendants relied upon, inter alia, the affidavit of an expert who inspected the cellar doors in June 2013, which was more than five years after the plaintiff’s fall. The defendants also relied upon photographs and a video recording of the cellar doors which also were taken in 2013.The appearance of the cellar doors as depicted in the photographs and video recording taken more than five years after the accident was noticeably different from the appearance of the cellar doors as depicted in the photographs that the parties used for identification purposes during their depositions in 2011 (see Hahn v. Wilhelm, 54 AD3d 896, 898). George Ketigan, Jr., a principal of the defendant Vic-Armen, testified at his deposition that in December 2010, the defendants had the cellar door repaired after Ketigan noticed an “opening in the door” (see id. at 898-899). Under these circumstances, the expert’s affidavit, and the defendants’ photographs and video recording taken more than five years after the plaintiff’s fall, were insufficient to establish that no actionable defect existed at the time of the accident (see id. at 898; Lal v. Hing Po Ng, 33 AD3d 668, 668-669; see also Cintron v. New York City Tr. Auth., 77 AD3d 410, 411).Furthermore, in support of their motion, the defendants submitted the plaintiff’s deposition transcript, in which she testified that, as she was walking on the sidewalk, her foot became stuck in the gap between the cellar doors, causing her to fall to the ground. Upon falling, her “left ankle was hanging off of [her] leg.” The plaintiff testified that she later learned that she had broken both bones in her ankle, and had “ripped all my tendons and all my ligaments.” Given the plaintiff’s description of how her foot became stuck in the gap between the cellar doors as she was walking on the sidewalk, the defendants failed to establish, prima facie, that the alleged defect was trivial.The defendants’ failure to make a prima facie showing required denial of their motions, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). Accordingly, we disagree with the Supreme Court’s granting of those branches of the defendants’ respective motions which were for summary judgment dismissing the complaint insofar as asserted against each of them.RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Roman, J.P.; Sgroi, Connolly and Christopher, JJ.PEOPLE, etc., res, v. Christina Finnegan, a/k/a Christina M. Finnegan, ap — (Ind. No. 2047-15)Appeal by the defendant from a judgment of the County Court, Suffolk County (Martin Efman, J.), rendered June 1, 2016, convicting her of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree, upon her plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived her right to appeal (see People v. Sanders, 25 NY3d 337, 341-342; People v. Ramos, 7 NY3d 737, 738). The defendant’s valid waiver of her right to appeal precludes review of her contention that her sentence should be reduced in the interest of justice (see People v. Mickens, 151 AD3d 984).ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.By Roman, J.P.; Sgroi, Connolly and Christopher, JJ.Erwin E. Grant, ap, v. Neville Gordon respondents def — (Index No. 75010/09)In an action, inter alia, to reform a deed, the plaintiff appeals from an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated December 1, 2015. The order denied the plaintiff’s motion, inter alia, pursuant to CPLR 4404 to set aside a verdict rendered after a nonjury trial and for judgment as a matter of law.ORDERED that the appeal is dismissed, with costs.“An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal” (NYCTL 1998-1 Trust v. Shahipour, 29 AD3d 965, 965 [internal quotation marks omitted]; see Gandolfi v. Gandolfi, 66 AD3d 834, 835; Patel v. Patel, 270 AD2d 241). ”The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent” (22 NYCRR 670.10.2[c][1]; see CPLR 5528[a][5]; Deshuk-Flores v. Flores, 116 AD3d 996).Here, the appeal is from the denial of a posttrial motion, inter alia, pursuant to CPLR 4404 to set aside a verdict rendered after a nonjury trial and for judgment as a matter of law. The appendix does not contain the transcript of the trial, and the appellant did not otherwise provide the trial transcript to this Court. Under the circumstances presented, this Court is unable to render an informed determination on the merits of the appeal and, accordingly, the appeal must be dismissed (see Wells Fargo Bank, N.A. v. Limtung, 151 AD3d 1114, 1115; Kumar v. Chander, 149 AD3d 709, 712; Marin v. Marin, 148 AD3d 1132, 1136; Town of Brookhaven v. Mascia, 38 AD3d 758, 760; Matter of Passalacqua, 31 AD3d 648).ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Austin, Cohen and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Julius Sanders, ap — (Ind. No. 4124/09)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 July 9, 2014 (People v. Sanders, 119 AD3d 713), affirming a judgment of the Supreme Court, Kings County, rendered April 6, 2011.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).DILLON, J.P., AUSTIN, COHEN and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Balkin, Cohen and Duffy, JJ.James Carlton res, v. City of New York ap — (Index No. 3111/13)In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), entered April 13, 2016. The order, insofar as appealed from, denied those branches of the defendants’ motion which were for summary judgment dismissing the cause of action alleging a violation of Labor Law §240(1) and the cause of action alleging a violation of Labor Law §241(6) insofar as it was predicated upon an alleged violation of 12 NYCRR 23-1.8(c)(1), and granted the plaintiffs’ cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §240(1).ORDERED that the order is modified, on the law, by deleting the provision thereof granting the plaintiffs’ cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §240(1), and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the appellants.The plaintiff James Carlton (hereinafter the injured plaintiff), a steamfitter employed by nonparty JDP Mechanical, Inc. (hereinafter JDP), allegedly was injured while working in a building owned by the defendant City of New York. The accident allegedly occurred when the injured plaintiff and a coworker were installing a weld neck flange, which is a fitting to connect a valve or piece of pipe to an existing piece of pipe. The injured plaintiff and his coworker used an ascending and descending platform called a scissor lift to raise the flange, which weighed approximately 80 pounds, to the height of the pipe, which was approximately 16 feet above the floor. The injured plaintiff then began the process of temporarily securing the flange to the pipe by making the first two of four small welds called tack welds. The injured plaintiff and his coworker waited a few minutes for the two tack welds to “cool down[ ]” and “ harden[ ],” and then lowered the scissor lift a few inches to inspect the flange to determine whether it was level. After determining that they needed a grinder to level the flange, they lowered the scissor lift to the floor. While the injured plaintiff waited on the scissor lift for his coworker to retrieve the grinder, the tack welds broke, causing the flange to fall and strike the injured plaintiff on his head and back.The injured plaintiff, and his wife suing derivatively, commenced this action against the City and the defendant Turner Construction Company/STV Incorporated, a Joint Venture (hereinafter Turner/STV), the manager of the construction project, alleging violations of Labor Law §§200, 240(1), and 241(6), and common-law negligence. The defendants moved for summary judgment dismissing the complaint, and the plaintiffs cross-moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §240(1). By order entered April 13, 2016, the Supreme Court, inter alia, granted the plaintiffs’ cross motion, and denied those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging a violation of Labor Law §240(1) and a violation of Labor Law §241(6) insofar as it was predicated upon an alleged violation of 12 NYCRR 23-1.8(c)(1). The defendants appeal.“Labor Law §240(1) imposes a nondelegable duty… to provide safety devices necessary to protect workers from risks inherent in elevated work sites” (Vasquez-Roldan v. Two Little Red Hens, Ltd., 129 AD3d 828, 829; see McCarthy v. Turner Constr., Inc., 17 NY3d 369, 374). Labor Law §240(1) provides that “[a]ll contractors and owners and their agents… in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” ”[T]he protections of Labor Law §240(1) ‘do not encompass any and all perils that may be connected in some tangential way with the effects of gravity’” (Nicometi v. Vineyards of Fredonia, LLC, 25 NY3d 90, 97, quoting Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). Liability under Labor Law §240(1) depends on whether the injured worker’s “task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against” (Broggy v. Rockefeller Group, Inc., 8 NY3d 675, 681; see Eddy v. John Hummel Custom Bldrs., Inc., 147 AD3d 16, 20). ”The single decisive question in determining whether Labor Law §240(1) is applicable is whether the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Escobar v. Safi, 150 AD3d 1081, 1083; see Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603).“[F]alling object liability under Labor Law §240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured but also where the plaintiff demonstrates that, at the time the object fell, it required securing for the purposes of the undertaking” (Escobar v. Safi, 150 AD3d at 1083 [citations and internal quotation marks omitted]; see Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 663; Berman-Rey v. Gomez, 153 AD3d 653, 655). Importantly, Labor Law §240(1) “does not automatically apply simply because an object fell and injured a worker; ‘a plaintiff must show that the object fell… because of the absence or inadequacy of a safety device of the kind enumerated in the statute’” (Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 NY3d at 663, quoting Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 268). ”While a plaintiff is not required to present evidence as to which particular safety devices would have prevented the injury, the risk requiring a safety device must be a foreseeable risk inherent in the work” (Niewojt v. Nikko Constr. Corp., 139 AD3d 1024, 1027 [citation omitted]; see McLean v. 405 Webster Ave. Assocs., 98 AD3d 1090).Here, neither the plaintiffs nor the defendants established their prima facie entitlement to judgment as a matter of law with respect to the Labor Law §240(1) cause of action. The parties’ submissions raised triable issues of fact as to whether the defendants were obligated to provide appropriate safety devices of the kind enumerated in Labor Law §240(1) to secure the flange and whether the flange fell due to the absence or inadequacy of an enumerated safety device (see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 11; Romero v. 2200 N. Steel, LLC, 148 AD3d 1066, 1067; see also Narducci v. Manhasset Bay Assoc., 96 NY2d at 268; cf. Escobar v. Safi, 150 AD3d at 1083; Sarata v. Metropolitan Transp. Auth., 134 AD3d 1089, 1091-1092; Matthews v. 400 Fifth Realty LLC, 111 AD3d 405, 405-406; Pritchard v. Tully Constr. Co., Inc., 82 AD3d 730, 730-731). Daniel Kressler, a safety manager for Turner/STV, testified at his deposition that “[d]epending on… what the operation is,” “[s]lings, chokers [can be] used to… hold [a flange] in place” until it is permanently welded to the pipe. While it is true that no safety device such as a sling was provided, the injured plaintiff testified at his deposition that two tack welds should have been sufficient to secure the flange. Significantly, the plaintiffs’ expert, George A. Anderson, also opined that “the two tack welds should have been sufficient to hold the flange until the job was completed, unless the tack welds were defective.” Under these circumstances, a triable issue of fact exists as to whether “[t]his was… a situation where a hoisting or securing device of the kind enumerated in [Labor Law §240(1)] would have been necessary or even expected” (Roberts v. General Elec. Co., 97 NY2d 737, 738 [internal quotation marks omitted]; see Romero v. 2200 N. Steel, LLC, 148 AD3d 1066, 1067). Contrary to the defendants’ contention, the tack welds do not constitute a safety device within the meaning of Labor Law §240(1) (see Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 NY3d at 663; Honeyman v. Curiosity Works, Inc., 154 AD3d 820, 821; Guallpa v. Leon D. DeMatteis Constr. Corp., 121 AD3d 416; but see Keerdoja v. Legacy Yards Tenant, LLC, 2017 NY Slip Op 32272[U], *4 [Sup Ct, NY County]).In addition, the defendants failed to establish, prima facie, that Labor Law §240(1) was inapplicable on the ground that the flange was a part of the permanent structure of the building and was not a falling object within the meaning of Labor Law §240(1). The record demonstrates that the flange was only temporarily secured to the pipe by two tack welds when the injured plaintiff and his coworker determined that a grinder was needed to level the flange (cf. Flossos v. Waterside Redevelopment Co., L.P., 108 AD3d 647; Marin v. AP-Amsterdam 1661 Park LLC, 60 AD3d 824). The defendants also failed to establish, prima facie, that the injured plaintiff’s actions constituted the sole proximate cause of the accident (see Wahab v. Agris & Brenner, LLC, 102 AD3d 672, 674; Silvas v. Bridgeview Invs., LLC, 79 AD3d 727, 731; Kwang Ho Kim v. D & W Shin Realty Corp., 47 AD3d 616, 618-619; cf. Scofield v. Avante Contr. Corp., 135 AD3d 929, 931).Accordingly, we disagree with the Supreme Court’s determination granting the plaintiffs’ cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §240(1). However, we agree with the court’s denial of that branch of the defendants’ motion which was for summary judgment dismissing that cause of action.“Labor Law §241(6) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor” (Norero v. 99-105 Third Ave. Realty, LLC, 96 AD3d 727, 727-728). Pursuant to 12 NYCRR 23-1.8(c)(1), “[e]very person required to work or pass within any area where there is a danger of being struck by falling objects or materials or where the hazard of head bumping exists shall be provided with and shall be required to wear an approved safety hat.”The evidence submitted by the defendants failed to demonstrate the absence of a triable issue of fact as to whether the injured plaintiff was provided with an appropriate safety hat to protect him from the danger of being struck by the falling flange. It is undisputed that he was provided with a hard hat and that he was instructed to wear his hard hat on site. It is also undisputed that his hard hat could not be worn with his welding shield and that, at the time of the accident, he did not replace his welding shield with his hard hat since he had not yet completed the welding work. Under these circumstances, there is a triable issue of fact as to whether providing the injured plaintiff with a safety hat that could not be worn with his welding shield satisfied the defendants’ duty to provide the injured plaintiff with “an approved safety hat,” and summary judgment dismissing the Labor Law §241(6) cause of action insofar as it was predicated upon an alleged violation of 12 NYCRR 23-1.8(c)(1) was not warranted (see Neville v. Chautauqua Lake Cent. Sch. Dist., 124 AD3d 1385, 1386; Cantineri v. Carrere, 60 AD3d 1331, 1333; see also Seales v. Trident Structural Corp., 142 AD3d 1153; McLean v. 405 Webster Ave. Assoc., 98 AD3d at 1095; Marin v. AP-Amsterdam 1661 Park LLC, 60 AD3d at 826).Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law §241(6) insofar as it was predicated upon an alleged violation of 12 NYCRR 23-1.8(c)(1).MASTRO, J.P., BALKIN, COHEN and DUFFY, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Maltese, JJ.DLJ Mortgage Capital, Inc., res, v. Yael Hirsh, et al., appellants def — (Index No. 5739/15)In an action to foreclose a mortgage, the defendants Yael Hirsh and Rochelle Stern appeal from an order of the Supreme Court, Nassau County (Robert A. Bruno, J.), dated December 10, 2015. The order denied those defendants’ motion pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them.ORDERED that the order is affirmed, with costs.The defendants Yael Hirsh and Rochelle Stern (hereinafter together the defendants) executed a consolidated note in the sum of $1,700,000 in favor of Fairmont Funding, Ltd., which was secured by a mortgage on residential property located in Nassau County. The defendants allegedly defaulted on their monthly payments beginning in December 2006.The plaintiff, DLJ Mortgage Capital, Inc. (hereinafter DLJ), commenced a mortgage foreclosure action by the filing of a summons and complaint on June 12, 2007. DLJ sought summary judgment in that action; the Supreme Court denied that motion, finding that there were triable issues of fact as to the standing of DLJ. In particular, the court found that a written assignment of the note from Fairmont Funding, Ltd., to DLJ was executed after the commencement of the action, and that there was no admissible evidence showing that the note had been physically delivered to DLJ before the commencement of the action. Subsequently, by order dated July 16, 2009, the court granted the application of DLJ to discontinue the 2007 foreclosure action.DLJ commenced the instant action in 2015 to foreclose the mortgage. The defendants moved pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them. The Supreme Court denied the motion, and the defendants appeal.We agree with the Supreme Court’s determination to deny the defendants’ motion to dismiss the amended complaint insofar as asserted against them based on the statute of limitations. An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]). That limitations period begins to run when the mortgagee or its predecessor elects to accelerate the mortgage (see U.S. Bank, N.A. v. Martin, 144 AD3d 891, 891-892; EMC Mtge. Corp. v. Smith, 18 AD3d 602; Loiacono v. Goldberg, 240 AD2d 476, 477). Where a mortgage is payable in installments, “once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt” (EMC Mtge. Corp. v. Patella, 279 AD2d 604, 605; see 53 PL Realty, LLC v. US Bank N.A., 153 AD3d 894, 895).We disagree with the defendants’ contention that a May 2007 notice sent by DLJ accelerated the mortgage; that letter merely indicated that acceleration was a possible future event, and consequently it did not constitute an exercise of the mortgage’s optional acceleration clause (see 21st Mtge. Corp. v. Adames, 153 AD3d 474, 475; Goldman Sachs Mtge. Co. v. Mares, 135 AD3d 1121, 1122-1123). Further, neither the prosecution of the 2007 mortgage foreclosure action nor DLJ’s motion for summary judgment in the context of that action was shown to constitute a valid acceleration of the mortgage, as the written assignment of the mortgage to DLJ was executed after the commencement of that action, and the record contains no evidence of prior assignment or delivery of the note to DLJ (see 21st Mtge. Corp. v. Adames, 153 AD3d at 475; Wells Fargo Bank, N.A. v. Burke, 94 AD3d 980, 983-984; cf. Deutsche Bank Natl. Trust Co. v. Gambino, 153 AD3d 1232).Therefore, we agree with the Supreme Court that the defendants failed to demonstrate that this action is time-barred (see 21st Mtge. Corp. v. Adames, 153 AD3d at 475; Goldman Sachs Mtge. Co. v. Mares, 135 AD3d at 1122-1123; see also NMNT Realty Corp. v. Knoxville 2012 Trust, 151 AD3d 1068, 1070).In view of the foregoing, we need not reach DLJ’s additional contention.MASTRO, J.P., LEVENTHAL, SGROI and MALTESE, JJ., concur.By Dillon, J.P.; Miller, Hinds-Radix and Christopher, JJ.Theresa A. Gately, plf, v. Thomas Drummond, ap — (Index No. 6899/13)In an action to recover damages for breach of contract and unjust enrichment, the defendant appeals from an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated November 18, 2015. The order, insofar as appealed from, denied those branches of the defendant’s motion which were pursuant to CPLR 5015(a)(1) to vacate a judgment of the same court dated October 31, 2014, entered upon his failure to appear at a hearing and an inquest, and pursuant to CPLR 3025(b) for leave to serve an amended answer.ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof denying that branch of the defendant’s motion which was pursuant to CPLR 5015(a)(1) to vacate the judgment dated October 31, 2014, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.The plaintiff commenced this action, by summons with notice dated November 21, 2013, against the defendant, her son, to recover damages for breach of contract and unjust enrichment. The plaintiff alleged that in approximately 2005, she loaned the defendant $250,000 to purchase a home (hereinafter the subject property), which the defendant then purchased. The plaintiff further alleged that as part of the loan agreement, she would be permitted to reside at the subject property, and the defendant agreed to repay the loan when the plaintiff decided that she no longer wished to reside there.The defendant retained an attorney to represent him in this action. The attorney was a longtime friend of the defendant and his wife. The attorney’s wife had represented the defendant and his wife when they purchased the subject property.After the complaint, dated January 16, 2014, was filed, the plaintiff moved for leave to enter a default judgment on the ground that the defendant had failed to serve a timely answer. The defendant opposed the motion and submitted an answer and an affidavit of service to demonstrate that the answer had been timely served. In an order dated March 31, 2014, the Supreme Court denied the plaintiff’s motion.The plaintiff thereafter moved for leave to renew her motion for leave to enter a default judgment on the ground that the defendant’s opposition papers had not been timely served. The Supreme Court, in effect, reserved decision on the plaintiff’s motion for leave to renew and directed the parties to appear for a hearing on July 10, 2014, to determine whether the answer had been timely served.The defendant failed to appear at the hearing. The Supreme Court found the defendant to be in default and scheduled an inquest on the issue of damages. The defendant failed to appear at the inquest, which was held on October 23, 2014. The court thereafter issued, upon the defendant’s default, a judgment dated October 31, 2014, in favor of the plaintiff and against the defendant in the principal sum of $249,982.By notice of motion dated October 19, 2015, the defendant moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate the judgment and pursuant to CPLR 3025(b) for leave to serve an amended answer. In an affidavit submitted in support of his motion, the defendant stated that after he retained the attorney to represent him, and after his answer was served, he never received notice of the hearing. The defendant stated that he contacted his attorney sometime around July 30, 2014, to inquire about the status of the case, and on numerous occasions thereafter, but his attorney did not inform him of the default. The defendant first learned of the default when he received a copy of the judgment in the mail on November 26, 2014.The defendant stated that upon receiving the judgment he forwarded it to his attorney, who assured him that he would take care of the matter. In December 2014, the defendant’s attorney sent the defendant an affidavit to sign, which stated that he had not wilfully defaulted in this case. The defendant signed the affidavit and returned it to his attorney on December 16, 2014. Over the course of the next three months, the defendant was unable to contact his attorney despite numerous attempts. The defendant’s wife similarly tried to contact the attorney’s wife, to no avail. Eventually, the defendant retained new counsel to represent him. His new attorney was also unable to contact the defendant’s former attorney.The plaintiff herself defaulted in opposing the defendant’s motion. In the order appealed from, the Supreme Court, among other things, denied those branches of the defendant’s motion which were to vacate the default judgment and for leave to serve an amended answer. The defendant appeals.Pursuant to CPLR 5015(a)(1), a party seeking to vacate a default must demonstrate a reasonable excuse for his or her default and a potentially meritorious claim or defense (see CPLR 5015[a][1]; Matter of Sylvia G. [Carniello---Marlowe], 139 AD3d 851, 853). ”The determination of what constitutes a reasonable excuse lies within the Supreme Court’s discretion” (Young Su Hwangbo v. Nastro, 153 AD3d 963, 965). ”Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” (Harcztark v. Drive Variety, Inc., 21 AD3d 876, 876-877; see Young Su Hwangbo v. Nastro, 153 AD3d at 965; Fried v. Jacob Holding, Inc., 110 AD3d 56, 60). ”[T]he court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a detailed and credible explanation of the default at issue” (Ki Tae Kim v. Bishop, 153 AD3d 776, 777; see Scholem v. Acadia Realty L.P., 144 AD3d 1012, 1013). ”While it is generally within the discretion of the court to determine what constitutes a reasonable excuse, reversal is warranted if that discretion is improvidently exercised” (Ahmad v. Aniolowiski, 28 AD3d 692, 693; see Moore v. Day, 55 AD3d 803, 804).Here, the affidavits and documentary evidence submitted by the defendant in support of his motion, taken together, set forth a detailed and credible explanation for the defendant’s failure to appear at the hearing and for any delay in moving to vacate his default (see Scholem v. Acadia Realty L.P., 144 AD3d at 1013; Swensen v. MV Transp., Inc., 89 AD3d 924, 925). In addition, there was no showing of prejudice to the plaintiff, and no evidence that the defendant willfully defaulted or otherwise intended to abandon his defense of this action (see Moore v. Day, 55 AD3d at 804; Ahmad v. Aniolowiski, 28 AD3d at 693). Furthermore, the defendant’s submissions demonstrated a potentially meritorious defense to the complaint (see Elia v. Perla, 150 AD3d 962; see also Loris v. S & W Realty Corp., 16 AD3d 729, 731; Quis v. Bolden, 298 AD2d 375; cf. MidFirst Bank v. Ajala, 146 AD3d 875, 875). Under these circumstances, and cognizant that public policy favors the resolution of cases on the merits, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant’s motion which was pursuant to CPLR 5015(a) to vacate the default judgment dated October 31, 2014 (see Moore v. Day, 55 AD3d at 804; Ahmad v. Aniolowiski, 28 AD3d at 693).However, under the circumstances, the Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was for leave to serve an amended answer (see CPLR 3025[b]).DILLON, J.P., MILLER, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Leventhal, J.P.; Austin, Duffy and Barros, JJ.Richard Bennett plf, v. State Farm Fire and Casualty Company, et al., def — (Action No. 1)State Farm Fire and Casualty Company, etc., plf, v. Creative Landscaping by Cow Bay, Inc. def — (Action No. 2)Richard Bennett ap, v. State Farm Fire and Casualty Company, et al., respondents def — (Action No. 3)(Index Nos. 10385/13, 385/14, 602582/14)Edward J. Boyle, Manhasset, NY, for appellants.Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman, Merril S. Biscone, and Sean McAloon of counsel), for respondent State Farm Fire and Casualty Company.L’Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY (Keith J. Stevens of counsel), for respondent Holzmacher, McLendon and Murrell, P.C.In an action, inter alia, to recover damages for gross negligence (Action No. 3), the plaintiffs appeal from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered January 24, 2017. The order, insofar as appealed from, granted the motion of the defendant State Farm Fire and Casualty Company, and the separate motion of the defendant Holzmacher, McLendon and Murrell, P.C., pursuant to CPLR 3211(a) to dismiss the amended complaint in Action No. 3 insofar as asserted against each of them.ORDERED that the order is modified, on the law, by deleting the provisions thereof granting that branch of the motion of the defendant State Farm Fire and Casualty Company which was to dismiss the cause of action alleging gross negligence and the claim for punitive damages insofar as asserted against it, and that branch of the motion of the defendant Holzmacher, McLendon and Murrell, P.C., which was to dismiss the cause of action to recover damages for gross negligence and the claim for punitive damages insofar as asserted against it, and substituting therefor provisions denying those branches of the respective motions; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffs.These related actions arise from an oil contamination incident that occurred at the property of the plaintiffs, Richard Bennett and Mary Wendell Bennett, in May 2011. At the time of the incident, the plaintiffs had a homeowner’s insurance policy with the defendant State Farm Fire and Casualty Company (hereinafter State Farm). In connection with the incident, State Farm provided coverage pursuant to a third-party liability provision in the subject policy. The oil remediation process at the plaintiffs’ property was performed by the defendant Holzmacher, McLendon & Murrell, P.C. (hereinafter H2M), an engineering and architectural firm retained by State Farm.The plaintiffs commenced this action (Action No. 3)to recover damages relating to the remediation process against, among others, State Farm and H2M, alleging, inter alia, negligence and fraud, and seeking punitive damages. In an order dated September 23, 2014, the Supreme Court directed dismissal of the complaint insofar as asserted against State Farm. On the plaintiffs’ appeal, this Court rejected State Farm’s claim that the negligence cause of action was time-barred, and reinstated that cause of action against State Farm (see Bennett v. State Farm Fire & Cas. Co., 137 AD3d 727).In an amended complaint, the plaintiffs set forth that State Farm and its agent, H2M, supervised the remediation work at the property. The amended complaint included causes of action pursuant to General Business Law §349 and alleging gross negligence, asserting that State Farm and H2M, along with the defendant Milro Associates, Inc., a contractor, caused additional damage to the property beyond the damage incurred in the initial oil contamination incident. The Supreme Court granted State Farm’s and H2M’s separate motions pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. The court determined that the causes of action pursuant to General Business Law §349 and alleging gross negligence were time-barred, and that the claims for punitive damages were barred by the law of the case doctrine and, in any event, failed to state a cause of action. The plaintiffs appeal.We conclude that the cause of action pursuant to General Business Law §349 was not untimely. A cause of action to recover damages pursuant to General Business Law §349 must be commenced within three years of its accrual (see CPLR 214[2]; Corsello v. Verizon N.Y., Inc., 18 NY3d 777, 790). The allegations underlying this cause of action in the amended complaint involved the same transactions and occurrences pleaded in the original complaint, which fairly apprised State Farm and H2M of the basis of the cause of action (see CPLR 203[f]; Assevero v. Hamilton & Church Props., LLC, 154 AD3d 728, 730; Matter of Soldatenko v. Village of Scarsdale Zoning Bd. of Appeals, 138 AD3d 1002, 1003; Pendleton v. City of New York, 44 AD3d 733, 736-737). The original complaint was interposed within three years of the date of the accrual of a potential General Business Law §349 cause of action, which accrued no earlier than the date that H2M and State Farm last performed work at the premises (see City School Dist. of City of Newburgh v. Stubbins & Assoc., 85 NY2d 535, 538; Village of Lindenhurst v. J.D. Posillico, Inc., 94 AD3d 1101, 1102).Nevertheless, the Supreme Court should have directed dismissal of the General Business Law §349 cause of action pursuant to CPLR 3211(a)(7). ”When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action” (Sokol v. Leader, 74 AD3d 1180, 1180-1181; see Guggenheimer v. Ginzburg, 43 NY2d 268, 275). In considering such a motion, the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83, 87-88; see Nonnon v. City of New York, 9 NY3d 825, 827). Here, the amended complaint fails to state a cause of action for relief pursuant to General Business Law §349, as it does not allege that State Farm or H2M engaged in deceptive conduct that is consumer oriented, i.e., conduct that has a broad impact on consumers at large (see Nafash v. Allstate Ins. Co., 137 AD3d 1088, 1090; JP Morgan Chase Bank, N.A. v. Hall, 122 AD3d 576, 581; Vescon Constr., Inc. v. Gerelli Ins. Agency, Inc., 97 AD3d 658, 659; Flax v. Lincoln Natl. Life Ins. Co., 54 AD3d 992, 994-995). Thus, we agree that the General Business Law §349 cause of action should have been dismissed, albeit for different reasons that those of the Supreme Court.The Supreme Court should not have granted those branches of State Farm’s and H2M’s motions which were to dismiss the cause of action alleging gross negligence insofar as asserted against each of them. As the original complaint gave notice of the transactions or occurrences to be proven as to the gross negligence causes of action, those causes of action related back to the date of timely filing of the original complaint (see Assevero v. Hamilton & Church Props., LLC, 154 AD3d at 730; Matter of Soldatenko v. Village of Scarsdale Zoning Bd. of Appeals, 138 AD3d at 1003; Pendleton v. City of New York, 44 AD3d at 736).The amended complaint stated a viable gross negligence cause of action as against State Farm and H2M. Gross negligence “differs in kind, not only degree, from claims of ordinary negligence” (Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 NY2d 821, 823; see Goldstein v. Carnell Assoc., Inc., 74 AD3d 745, 746). ”To constitute gross negligence, a party’s conduct must ‘smack[ ] of intentional wrongdoing’ or ‘evince[ ] a reckless indifference to the rights of others’” (Ryan v. IM Kapco, Inc., 88 AD3d 682, 683, quoting Sommer v. Federal Signal Corp., 79 NY2d 540, 554 [internal quotation marks omitted]; Skywest, Inc. v. Ground Handling, Inc., 150 AD3d 922, 923; J. Petrocelli Cont., Inc. v. Morganti Group, Inc., 137 AD3d 1082, 1083). Generally, the question of gross negligence is a matter to be determined by the trier of fact (see Food Pageant v. Consolidated Edison Co., 54 NY2d 167, 172-173; Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc., 122 AD3d 901, 902).The allegations, inter alia, that State Farm and H2M greatly exacerbated the existing damage to the property by causing the spread of the existing contamination and by directing the backfilling of areas of the property after leaving in place significant existing contamination are sufficient to support a gross negligence cause of action (see Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc., 122 AD3d at 902; see also Liberman & Cayre Synergy 73rd LLC, 108 AD3d 426, 428; Southern Wine & Spirits of Am., Inc. v. Impact Envtl. Eng’g, PLLC, 104 AD3d 613).The Supreme Court should not have granted dismissal of the plaintiffs’ demand for punitive damages insofar as asserted against State Farm and H2M. In the prior appeal in this action, this Court did not resolve the issue now raised, namely whether the amended complaint sets forth a sufficient basis for an award of punitive damages (see Bennett v. State Farm & Cas. Co., 137 AD3d 729). Therefore, contrary to the contention of State Farm and H2M, the law of the case doctrine does not preclude consideration of this issue (see Matter of Doman, 150 AD3d 994, 995; New York Tile Wholesale Corp. v. Thomas Fatato Realty Corp., 115 AD3d 829, 831). Punitive damages may properly be awarded where, inter alia, a defendant’s conduct is grossly negligent (see Home Ins. Co. v. American Home Prods. Corp., 75 NY2d 196, 201; Guariglia v. Price Chopper Operating Co., Inc., 38 AD3d 1043). Here, viewing the amended complaint in the light most favorable to the plaintiff (see Leon v. Martinez, 84 NY2d at 87-88), we find that it sets forth a viable basis for the request for punitive damages (see Gomez v. Cabatic, 159 AD3d 62, 74; Gipe v. DBT Xpress, LLC, 150 AD3d 1208, 1209-1210; Quiroz v. Zottola, 96 AD3d 1035, 1037; see also Cleary v. Wallace Oil Co.,Inc., 55 AD3d 773, 776-777).LEVENTHAL, J.P., AUSTIN, DUFFY and BARROS, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.Abeer Ibrahim, ap, v. Nablus Sweets Corp., et al., def — (Index No. 506887/14)Neil H. Greenberg & Associates, P.C., Massapequa, NY, for appellant.In an action, inter alia, to recover unpaid wages, the plaintiff appeals from an order of the Supreme Court, Kings County (Bernadette Bayne, J.), dated October 6, 2016. The order denied the plaintiff’s motion pursuant to CPLR 2004 for an extension of time to move for the entry of a default judgment and, thereupon, pursuant to CPLR 3215 for leave to enter a default judgment against the defendants Nablus Sweets Corp. and Taiseer Hamoud, and, in effect, sua sponte, directed dismissal of the complaint insofar as asserted against the defendants Nablus Sweets Corp. and Taiseer Hamoud as abandoned pursuant to CPLR 3215(c).ORDERED that on the Court’s own motion, the notice of appeal from so much of the order as, in effect, sua sponte, directed dismissal of the complaint insofar as asserted against the defendants Nablus Sweets Corp. and Taiseer Hamoud is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,ORDERED that the order is affirmed, without costs or disbursements.For approximately 10 months, from August 3, 2008, to May 26, 2009, the plaintiff was employed at a pastry shop in Brooklyn allegedly owned by the defendant Nablus Sweets, LLC, and operated by the defendants Nablus Sweets Corp. and Taiseer Hamoud. According to the plaintiff, she was an hourly employee, worked 84 hours in a six-day work week, and performed several functions at the pastry shop, including baker, cashier, sales associate, and dishwasher. In July 2014, the plaintiff commenced this action against the defendants, alleging, inter alia, that they failed to pay her the statutory minimum wage during the time period she was employed by them (see Labor Law §652). On August 6, 2014, Nablus Sweets Corp. and Hamoud were personally served with the summons and complaint. On August 7, 2014, Nablus Sweets, LLC, was personally served with the summons and complaint and, on or about December 1, 2014, interposed an answer. However, Nablus Sweets Corp. and Hamoud (hereinafter together the defendants) failed to appear in the action, interpose an answer, or otherwise move with respect to the complaint. In September 2016, two years after the defendants defaulted, the plaintiff moved pursuant to CPLR 2004 for an extension of time to move for the entry of a default judgment against the defendants and, thereupon, pursuant to CPLR 3215 for leave to enter a default judgment against them. The Supreme Court denied the motion and, in effect, sua sponte, directed dismissal of the complaint insofar as asserted against the defendants as abandoned pursuant to CPLR 3215(c). The plaintiff appeals.“CPLR 3215(c) provides that ‘[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned… unless sufficient cause is shown why the complaint should not be dismissed’” (Myoung Ja Kim v. Wilson, 150 AD3d 1019, 1020, quoting CPLR 3215[c]). This statute is strictly construed, as “[t]he language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory inasmuch as courts ‘shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one year period, as those claims are then deemed abandoned” (Giglio v. NTIMP, Inc., 86 AD3d 301, 307-308; see HSBC Bank USA, N.A. v. Grella, 145 AD3d 669, 671). Moreover, CPLR 3215(c) expressly provides that a court may dismiss a complaint as abandoned “upon its own initiative or on motion.” The statute further provides, however, that the failure to timely seek a default may be excused if “‘sufficient cause is shown why the complaint should not be dismissed’” (HSBC Bank USA, N.A. v. Grella, 145 AD3d at 671, quoting CPLR 3215[c]). To establish the sufficient cause required by CPLR 3215(c), “the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action” (Aurora Loan Servs., LLC v. Hiyo, 130 AD3d 763, 764; see Wells Fargo Bank, N.A. v. Bonanno, 146 AD3d 844, 845-846). ”‘The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court’” (Pipinias v. J. Sackaris & Sons, Inc., 116 AD3d 749, 752, quoting Giglio v. NTIMP, Inc., 86 AD3d at 308; see U.S. Bank, N.A. v. Dorvelus, 140 AD3d 850, 852). While a court has the discretion to accept law office failure as a reasonable excuse, such excuse must be supported by detailed allegations of fact explaining the law office failure (see CPLR 2005; CEO Bus. Brokers, Inc. v. Alqabili, 105 AD3d 989, 990; HSBC Bank USA, N.A. v. Wider, 101 AD3d 683).Here, the plaintiff moved pursuant to CPLR 2004 for an extension of time to move for the entry of a default judgment and, thereupon, for leave to enter a default judgment against the defendants. CPLR 2004 allows a court to “extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown.” ”In exercising its discretion to grant an extension of time pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the opponent of the motion” (Blay v. Frost, 126 AD3d 659, 660; see Tewari v. Tsoutsouras, 75 NY2d 1, 11-12; T. Mina Supply, Inc. v. Clemente Bros. Contr. Corp., 139 AD3d 1038).The Supreme Court providently exercised its discretion in rejecting the plaintiff’s excuse of law office failure and properly, in effect, directed dismissal of the complaint insofar as asserted against the defendants as abandoned pursuant to CPLR 3215(c). The plaintiff’s excuse of law office failure did not rise to the level of a reasonable excuse, as it was vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v. Dorvelus, 140 AD3d at 852; Baruch v. Nassau County, 134 AD3d 658, 659; Mattera v. Capric, 54 AD3d 827, 828). The excuse was contained in a brief paragraph in the supporting affirmation of an associate who stated, in sum and substance, that the attorney who commenced the action left the employ of the law firm of record, and the plaintiff’s file was only discovered in May 2016 when the firm was relocating its offices. There was no affirmation from a principal of the law firm and no indication in the associate’s affirmation that he had any personal knowledge of the purported law office failure or that he was even employed by the firm at the time it allegedly occurred. The one-year period to move for the entry of a default judgment lapsed in August 2015, and there is no indication that the attorney had left prior thereto. Since the plaintiff failed to demonstrate a reasonable excuse for her delay in moving for a default judgment, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was pursuant to CPLR 2004 for an extension of time to move for a default judgment (see T. Mina Supply, Inc. v. Clemente Bros. Contr. Corp., 139 AD3d 1038).The plaintiff’s remaining contentions either are without merit, have been rendered academic by our determination, or are improperly raised for the first time on appeal.Accordingly, the Supreme Court properly denied the plaintiff’s motion and, in effect, dismissed the complaint insofar as asserted against the defendants as abandoned pursuant to CPLR 3215(c).SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Balkin, Cohen and Duffy, JJ.PEOPLE, etc., res, v. Mohammed Zafor, ap — (Ind. No. 1871/11)Appeal by the defendant from a judgment of the Supreme Court, Queens County (James P. Griffin, J.), rendered June 18, 2013, convicting him of assault in the second degree, criminal possession of a weapon in the fourth degree (two counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant was convicted of assault in the second degree, two counts of criminal possession of a weapon in the fourth degree, and endangering the welfare of a child based upon evidence that he struck the complainant with a broom and a mop in the presence of their five-year-old son. The complainant, whose only language is Bengali, initially told police officers and hospital personnel, through interpreters, that the defendant had assaulted her with a mop and a broom in the presence of their son. She later recanted, stating that she had not made those statements, that she suffered from mental problems, that the defendant had not been present when she sustained her injuries, and that her injuries were self-inflicted. A Sirois hearing (see People v. Sirois, 92 AD2d 618), was held to determine the admissibility at trial of the complainant’s prior statements, and the People presented evidence of recorded phone calls from jail establishing that the defendant coerced and intimidated the complainant to advise the prosecutor that she did not wish to be a witness, that she was mentally ill, and that her injuries were self-inflicted. The People also presented evidence that the defendant prepared a letter for the complainant to sign and have notarized as her own, containing statements exculpating the defendant. The Supreme Court determined that the People had satisfied their burden of establishing by clear and convincing evidence that the defendant’s misconduct caused the complainant to become unavailable by recanting and changing her statement as to how she has injured, and admitted the complainant’s initial out-of-court statements that the defendant had assaulted her with a broom and a mop in the presence of their son.The defendant’s contention that the Supreme Court erred in permitting the admission of the out-of-court statements by the complainant is without merit. The evidence presented at the Sirois hearing (see Matter of Holtzman v. Hellenbrand, 92 AD2d 405), and the inferences that logically flow therefrom, were sufficient to support the court’s determination, under the clear and convincing evidence standard, that the defendant’s misconduct caused the complainant to be unavailable for purposes of testifying at trial (see People v. Smart, 23 NY3d 213). Thus, the People were properly allowed the use of the complainant’s out-of-court statements as part of their direct case (see People v. Cotto, 92 NY2d 68, 87; People v. Geraci, 85 NY2d 359, 368-370; People v. Wilson, 115 AD3d 891).MASTRO, J.P., BALKIN, COHEN and DUFFY, JJ., concur.By Dillon, J.P.; Austin, Miller and Hinds-Radix, JJ.Francis Abbaticchio, etc. plf-res, v. Association for the Help of Retarded Children, Inc., ap, Aleksandr Shvartsovskiy defendants- respondents def — (Index No. 5358/06)In consolidated actions to recover damages for personal injuries, etc., the defendant Association for the Help of Retarded Children, Inc., appeals from an order of the Supreme Court, Kings County (Wayne P. Saitta, J.), dated July 21, 2015. The order, insofar as appealed from, denied that branch of the motion of the defendant Association for the Help of Retarded Children, Inc., which was for summary judgment dismissing the first cause of action, alleging negligence, insofar as asserted against it and, in effect, denied that branch of the motion of the defendant Association for the Help of Retarded Children, Inc., which was for summary judgment dismissing the cross claims insofar as asserted against it.ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the plaintiffs-respondents and the defendants-respondents appearing separately and filing separate briefs.This action arises out of a motor vehicle collision that occurred on June 20, 2005, at the intersection of Avenue U and Ocean Parkway in Brooklyn. The plaintiffs’ decedent, Francis Abbaticchio, was a passenger in a vehicle owned by the defendant Lubov Shvartsovskiy and operated by the defendant Aleksandr Shvartsovskiy (hereinafter the driver), an employee of the defendant Association for the Help of Retarded Children, Inc. (hereinafter the Association). Abbaticchio was a 66-year-old intellectually disabled client of the Association who was being transported to a dental appointment when the collision occurred. The other vehicle involved in the collision was driven by the defendant Mohammed B. Anjum.In February 2006, Abbaticchio, by his guardian Alice Katinas, commenced negligence actions against Anjum, the driver, the hospitals and the medical professionals who treated Abbaticchio, and the Association as the driver’s employer. After Abbaticchio’s death, his estate commenced two separate actions to recover damages for wrongful death and medical malpractice against, among others, the New York City Health and Hospitals Corporation and New York Methodist Hospital. The actions were consolidated.After discovery, the Association moved for summary judgment dismissing the complaint and cross claims insofar as asserted against it, arguing that the driver did not cause the collision. The Supreme Court, inter alia, denied that branch of the Association’s motion which was for summary judgment dismissing the first cause of action insofar as asserted against it, and, in effect, denied that branch of the motion which was for summary judgment dismissing the cross claims insofar as asserted against it, determining that there were triable issues of fact. The Association appeals.To establish its prima facie entitlement to judgment as a matter of law on the subject branches of its motion, the Association had the burden of establishing, prima facie, that it (i.e., the driver) was free from fault (see Moore v. Singh, 108 AD3d 602; Nozine v. Anurag, 38 AD3d 631, 632; Sherin v. Roda, 14 AD3d 604, 605). Contrary to the Association’s contention, it failed to establish, prima facie, its freedom from fault (see Cattan v. Sutton, 120 AD3d 537, 538; Skoczek v. Delgado, 115 AD3d 844, 845; Jones v. Vialva-Duke, 106 AD3d 1052, 1053; Stern v. Amboy Bus Co., Inc., 102 AD3d 763). We therefore agree with the Supreme Court’s determination to deny that branch of the Association’s motion which was for summary judgment dismissing the first cause of action, alleging negligence, insofar as asserted against it, and, to, in effect, deny that branch of its motion which was summary judgment dismissing the cross claims insofar as asserted against it, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).DILLON, J.P., AUSTIN, MILLER and HINDS-RADIX, JJ., concur.By Roman, J.P.; Lasalle, Connolly and Christopher, JJ.PEOPLE, etc., res, v. Marcus Black, ap — (S.C.I. No. 103/14)Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M. Forman, J.), rendered July 19, 2016, convicting him of grand larceny in the fourth degree and petit larceny, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, the County Court properly determined, after a hearing, that the defendant violated the terms of a cooperation agreement (see People v. Outley, 80 NY2d 702, 713; People v. Warde, 45 AD3d 879, 879-880).The defendant’s contention that his attorney was ineffective for failing to move to withdraw his plea is based, in part, on matter outside the record and, thus, constitutes a mixed claim of ineffective assistance (see People v. Maxwell, 89 AD3d 1108, 1109; see also People v. Moore, 84 AD3d 1411, 1412; People v. Paugam, 57 AD3d 1012, 1012). 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. Murray, 154 AD3d 881, 883). Since the defendant’s claim of ineffective assistance of counsel 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. Maxwell, 89 AD3d at 1109).The defendant was properly sentenced as a second felony offender (see CPL 400.15; People v. Johnson, 157 AD3d 817). The County Court’s failure to make a formal inquiry as to whether the defendant wished to controvert the allegations of the second felony offender statement was a harmless oversight (see People v. McAllister, 47 AD3d 731, 731-732; see also People v. Sanabria, 110 AD3d 1010).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.JP Morgan Chase Bank, NA, plf, v. Ofra Levin, ap, Wells Fargo Bank, NA, etc., respondent def — (Index No. 337/10)In an action to foreclose a mortgage, the defendant Ofra Levin appeals from a judgment of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered July 24, 2015. The judgment, insofar as appealed from, upon an order of the same court dated March 12, 2015, as amended April 21, 2015, inter alia, granting the cross motion of the defendant Wells Fargo Bank, NA, for summary judgment on its combined fourth affirmative defense, first counterclaim, and first cross claim, declared that the defendant Wells Fargo Bank, NA, as holder of a certain mortgage dated August 14, 2006, in the principal amount of $380,000, has a valid and subsisting first priority mortgage lien against the subject property.ORDERED that the judgment is affirmed insofar as appealed from, with costs.In 2010, the plaintiff, JP Morgan Chase Bank, NA (hereinafter JPMorgan), commenced this action to foreclose a mortgage given by the defendant Ofra Levin in February 2006, securing a home equity line of credit in the sum of $200,000. Levin, appearing pro se, answered the complaint. Thereafter, the defendant Wells Fargo Bank, NA (hereinafter Wells Fargo), interposed an amended answer to the complaint. Wells Fargo asserted a combined fourth affirmative defense, first counterclaim, and first cross claim (hereinafter collectively claim) pursuant to RPAPL article 15 to compel the determination of claims to real property, alleging that the mortgage it held in the sum of $380,000, given by Levin in August 2006, was a superior first mortgage lien, as evidenced by a subordination agreement it entered into with JPMorgan in August 2006, which agreement was never recorded.After JPMorgan and Wells Fargo executed a stipulation of settlement, Levin moved pursuant to CPLR 3025(b) for leave to serve an amended answer to the complaint and Wells Fargo’s claim. JPMorgan cross-moved pursuant to CPLR 3217(b) to discontinue the action without prejudice and to cancel the notice of pendency, and Wells Fargo cross-moved for summary judgment on its claim. In an order dated March 12, 2015, as amended April 21, 2015, the Supreme Court denied Levin’s motion and granted the cross motions. Thereafter, the court issued a judgment, inter alia, declaring Wells Fargo’s mortgage to be a valid and subsisting first priority mortgage lien against the subject property. Levin appeals.In support of its cross motion, Wells Fargo demonstrated its prima facie entitlement to judgment as a matter of law on its claim (see CPLR 3001, 3017[b]; Alvarez v. Prospect Hosp., 68 NY2d 320, 324) by establishing that its mortgage was valid and superior in priority to JPMorgan’s mortgage (see Lend-Mor Mtge. Bankers Corp. v. Nicholas, 69 AD3d 680, 681; Washington Mut. Bank, FA v. Peak Health Club, Inc., 48 AD3d 793, 797).In opposition to Wells Fargo’s prima facie showing, Levin failed to raise a triable issue of fact (see Lend-Mor Mtge. Bankers Corp. v. Nicholas, 69 AD3d at 681; Washington Mut. Bank, FA v. Peak Health Club, Inc., 48 AD3d at 798). Levin does not dispute the validity of Wells Fargo’s mortgage, and as a nonparty to the subordination agreement and the stipulation of settlement, she lacks standing to challenge the terms thereof (see VAC Serv. Corp. v. Technology Ins. Co., Inc., 49 AD3d 524, 525). Further, to the extent that Levin challenges Wells Fargo’s standing to commence an action to foreclose its mortgage, that contention is misplaced, as Wells Fargo’s claim is not one to foreclose a mortgage, and standing is not an issue herein (see Zuniga v. BAC Home Loans Servicing, L.P., 147 AD3d 882, 884; Jahan v. U.S. Bank N.A., 127 AD3d 926, 927).RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Leventhal, J.P.; Cohen, Maltese and Barros, JJ.MATTER of Dennis ODowd, res, v. Jericho Fire Department, ap — (Index No. 4295/16)In a proceeding pursuant to General Municipal Law §50-e(5) for leave to serve a late notice of claim, the Jericho Fire Department appeals from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered October 11, 2016, which granted the petition.ORDERED that the order is affirmed, with costs.The petitioner allegedly sustained personal injuries when, while maintaining medical equipment supplied by his employer to the Jericho Fire Department (hereinafter the respondent), he slipped and fell on the kitchen floor of the respondent’s firehouse. The petitioner did not serve the respondent with a notice of claim until approximately one year after the accident. Shortly thereafter, the petitioner commenced this proceeding for leave to serve a late notice of claim. The petitioner alleged that the accident occurred because an employee of the respondent had just mopped the kitchen floor and failed to put up warning signs. The petitioner also alleged that the fall was witnessed by employees of the respondent, who also provided medical assistance and transported the petitioner to the hospital in the respondent’s ambulance. The Supreme Court granted the petition, and the respondent appeals.Pursuant to General Municipal Law §50-e(5), a court may, in its discretion, extend the time to serve a notice of claim (see Williams v. Nassau County Med. Ctr., 6 NY3d 531, 535; Matter of Ramirez v. City of New York, 148 AD3d 908, 908). The purpose of the notice of claim is to provide municipalities timely notice so that they can investigate, collect evidence, and evaluate the merits of the claim while the facts are still fresh (see Rosenbaum v. City of New York, 8 NY3d 1; Brown v. City of New York, 95 NY2d 389).The Supreme Court providently exercised its discretion in granting the petition for leave to serve a late notice of claim on the respondent. The respondent had actual knowledge of the facts constituting the claim within the statutory period (see Matter of Viola v. Ronkonkoma Middle Sch., 107 AD3d 1009, 1010; Matter of Whittaker v. New York City Bd. of Educ., 71 AD3d 776, 777; Brownstein v. Incorporated Vil. of Hempstead, 52 AD3d 507, 509; Gibbs v. City of New York, 22 AD3d 717, 719). Furthermore, applying the shifting burden standard established in Matter of Newcomb v. Middle Country Cent. Sch. Dist. (28 NY3d 455, 466), the petitioner met his threshold burden of demonstrating the absence of substantial prejudice to the respondent, and in opposition, the respondent failed to demonstrate that it was prejudiced by the delay (see id. at 466; Matter of Ruiz v. City of New York, 154 AD3d 945; Matter of Viola v. Ronkonkoma Middle Sch., 107 AD3d 1009, 1010; Matter of Joy v. County of Suffolk, 89 AD3d 1025, 1026; Matter of Allende v. City of New York, 69 AD3d 931, 933; Rosenblatt v. City of New York, 160 AD2d 927, 928). Even if the excuses proffered by the petitioner for failing to timely serve a notice of claim were not reasonable, the absence of a reasonable excuse is not fatal to the petition where there was actual notice and absence of prejudice (see Matter of McLeod v. City of New York, 105 AD3d 744, 746).LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Balkin, J.P.; Austin, Hinds-Radix and Connolly, JJ.PEOPLE, etc., res, v. Javier C. Hungria, ap — (S.C.I. No. 923/14)Appeal by the defendant, by permission, from an order of the Supreme Court, Nassau County (Robert G. Bogle, J.), entered May 17, 2017, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the County Court, Nassau County (Erica L. Prager, J.), rendered September 22, 2014, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence.ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and a new determination thereafter of the defendant’s motion.The defendant is a lawful permanent resident of the United States who emigrated from the Dominican Republic in 1996. In 2014, he was arrested and charged by superior court information with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree. The defendant rejected the People’s offer for him to plead guilty to a D felony, a lesser charge than the top counts of the superior court information, in exchange for a sentence of 60 days of imprisonment and 5 years of probation. Thereafter, the defendant and the People accepted a plea bargain proposed by the County Court, that the defendant plead guilty to all of the charges in exchange for a sentence of 30 days of imprisonment and 5 years of probation.Thereafter, the defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of ineffective assistance of counsel. He argued, inter alia, that his counsel failed to advise him or recognize that he pleaded guilty to aggravated felonies, thereby subjecting him to mandatory deportation, and that the People’s offer would not have necessarily subjected him to mandatory deportation. The People opposed the motion, contending that its plea offer entailed the defendant pleading guilty to criminal sale of a controlled substance in the fifth degree, which was also an aggravated felony, so that, in any event, the defendant would have been subjected to mandatory deportation if he had accepted its plea offer, and that the defendant was never offered a plea to a non-aggravated felony. The People also submitted an affirmation from defense counsel, in which counsel stated that the People’s plea offer involved the defendant pleading guilty to criminal sale of a controlled substance in the fifth degree. However, counsel acknowledged that she did not request a plea to a non-aggravated felony or discuss with the defendant that there was a difference for immigration purposes between pleading guilty to an aggravated felony as opposed to a non-aggravated felony. The Supreme Court denied the defendant’s motion without a hearing.A defendant has the right to the effective assistance of counsel before deciding whether to plead guilty (see US Const Amend VI; NY Const, art I, §6; Padilla v. Kentucky, 559 US 356, 364). ”Under the federal standard for ineffective assistance of counsel, a defendant must show that his or her attorney’s performance fell below an objective standard of reasonableness, and that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’” (People v. Bodden, 82 AD3d 781, 783, quoting Strickland v. Washington, 466 US 668, 694; see People v. Alexander, 159 AD3d 1019, 1020). ”Under the state standard… the constitutional requirements for the effective assistance of counsel ‘are met when the defense attorney provides meaningful representation’” (People v. Bodden, 82 AD3d at 783, quoting People v. Stultz, 2 NY3d 277, 279; see People v. Baldi, 54 NY2d 137, 147). In cases asserting ineffective assistance of counsel in the plea context, a defendant must show that “there is a reasonable probability that, but for counsel’s errors, he [or she] would not have pleaded guilty and would have insisted on going to trial” (Hill v. Lockhart, 474 US 52, 59; see People v. Hernandez, 22 NY3d 972, 975-976; People v. McDonald, 1 NY3d 109, 115), or “that the outcome of the proceedings would have been different” (People v. Parson, 27 NY3d 1107, 1108).Here, the defendant sufficiently alleged that defense counsel failed to fully inform him that a plea of guilty exposed him to mandatory removal from the United States and that, had he been so advised, a decision to reject the plea offer would have been rational (see People v. Loaiza, 158 AD3d 775; People v. Abdallah, 153 AD3d 1424; People v. Roberts, 143 AD3d 843, 846). Thus, the Supreme Court erred in failing to conduct a hearing on the defendant’s motion (see People v. Roberts, 143 AD3d at 845-846; People v. Pinto, 133 AD3d 787; People v. Martial, 125 AD3d 689; People v. Picca, 97 AD3d 170, 187).Accordingly, we reverse the order and remit the matter to the Supreme Court, Nassau County, for a hearing and a new determination thereafter of the defendant’s motion.BALKIN, J.P., AUSTIN, HINDS-RADIX and CONNOLLY, JJ., concur.

 
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