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Appellate DivisionSecond DepartmentHand Down List decided on:August 22, 2018By Dillon, J.P.; Chambers, Maltese and Barros, JJ.MATTER of Danieller I. Hugee, ap, v. Anthony Gadsden, res — (Docket No. V-8484-09)In a child custody proceeding, the mother appeals from an order of the Family Court, Kings County (Robert D. Mulroy, J.), dated May 15, 2017. The order, upon the granting of the father’s motion, made at the close of the mother’s case, to dismiss the petition for failure to make out a prima facie showing of changed circumstances, dismissed the mother’s petition to modify a prior order of the same court dated May 12, 2011, which had awarded custody of the parties’ child to the father upon the mother’s default. 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 is granted, David Laniado is relieved as counsel for the appellant, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,ORDERED that Linda C. Braunsberg, 370 Powell Street, Apt. 2, Staten Island, NY, 10312, is assigned as counsel to perfect the appeal from the order dated May 15, 2017; 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 and the attorney for the child shall serve and file their briefs within 120 days of this decision and order on motion. By prior order of this Court dated June 7, 2017, 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 of each other.Upon this Court’s independent review of the record, we conclude that a nonfrivolous issue exists as to whether the Family Court providently exercised its discretion in granting the father’s motion, made at the close of the mother’s case, to dismiss the mother’s petition for failure to make out a prima facie showing of changed circumstances since the father was awarded custody of the parties’ child in an order dated May 12, 2011 (see generally S.L. v. J.R., 27 NY3d 558, 563; compare Matter of Izquierdo v. Santiago, 151 AD3d 967, with Matter of Scott v. Powell, 146 AD3d 964). Since a review of the record by the Appellate Division cannot substitute for the single-minded advocacy of appellate counsel, assignment of new counsel to prosecute the appeal is warranted (see Matter of Nava v. Kinsler, 78 AD3d 837; Swanton v. Swanton, 70 AD3d 927).DILLON, J.P., CHAMBERS, MALTESE and BARROS, JJ., concur.By Dillon, J.P.; Leventhal, Connolly and Brathwaite Nelson, JJ.Christopher Lopez, res, v. Michael K. Dobbins, et al., ap — (Index No. 707063/15)In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), entered July 15, 2016. The order granted the plaintiff’s motion for summary judgment on the issue of liability.ORDERED that the order is affirmed, with costs.On January 5, 2015, the plaintiff was driving east on the Long Island Expressway at or near its intersection with the Grand Central Parkway in Queens County when his vehicle allegedly was struck in the rear by an Access-A-Ride vehicle operated by the defendant Michael K. Dobbins. In July 2015, the plaintiff commenced this action against Dobbins and his employer, Careride Paratransit, LLC, among others (hereinafter collectively the defendants). After joinder of issue, but before the completion of discovery, the plaintiff moved for summary judgment on the issue of liability. The defendants opposed the motion. The Supreme Court granted the motion, and the defendants appeal.“‘A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle’” (Russell v. J.L. Femia Landscape Servs., LLC, 161 AD3d 1119, 1120, quoting Nsiah-Abablo v. Hunter, 78 AD3d 672, 672; see Niyazov v. Hunter EMS, Inc., 154 AD3d 954; Comas-Bourne v. City of New York, 146 AD3d 855, 856). As such, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence (see Tutrani v. County of Suffolk, 10 NY3d 906, 908; Motta v. Gomez, 161 AD3d 725; Nikolic v. City-Wide Sewer & Drain Serv. Corp., 150 AD3d 754, 755).Here, the plaintiff established his prima facie entitlement to judgment as a matter of law through the submission of his own affidavit, in which he averred that his vehicle was in the center lane of the Long Island Expressway braking and slowing down in response to traffic conditions, when it was struck in the rear by Dobbins’ vehicle. This affidavit demonstrated, prima facie, that Dobbins was negligent (see Nikolic v. City-Wide Sewer & Drain Serv. Corp., 150 AD3d at 755). Further, although a plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case (see Rodriguez v. City of New York, 31 NY3d 312; Poon v. Nisanov, 162 AD3d 804), the plaintiff specifically argued the absence of comparative fault in support of his motion and, in his affidavit, demonstrated that he was free from comparative fault (see Edgerton v. City of New York, 160 AD3d 809, 811). In opposition to the plaintiff’s prima facie showing, the defendants’ contention that the plaintiff’s vehicle made a sudden stop when it was cut off by a third vehicle did not, standing alone, provide a nonnegligent explanation for Dobbins’ conduct or raise a triable issue of fact as to whether the plaintiff was comparatively at fault (see Comas-Bourne v. City of New York, 146 AD3d at 855; Waide v. ARI Fleet, LT, 143 AD3d 975, 976; Cajas-Romero v. Ward, 106 AD3d 850, 852). Finally, the plaintiff’s motion was not premature (see CPLR 3212[f]; Brown v. City of New York, 162 AD3d 733; Lynn v. McCormick, 153 AD3d 688, 689).Accordingly, we agree with the Supreme Court’s determination to grant the plaintiff’s motion for summary judgment on the issue of liability.DILLON, J.P., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Sgroi, Miller and Brathwaite Nelson, JJ.MATTER of Bartolomeo Abbatiello, ap, v. Town of North Hempstead Board of Zoning Appeals, res — (Index No. 9768/15)Law Offices of Thomas F. Liotti, LLC, Garden City, NY, for appellant.Elizabeth D. Botwin, Town Attorney, Manhasset, NY (Neera I. Roopsingh of counsel), for respondent.In a proceeding pursuant to CPLR article 78 to review a determination of the Town of North Hempstead Board of Zoning Appeals dated August 12, 2015, denying a use variance, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Thomas Feinman, J.), dated February 8, 2016. The judgment denied the petition and dismissed the proceeding.ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, the determination of the Town of North Hempstead Board of Zoning Appeals dated August 12, 2015, is annulled, and the matter is remitted to the Town of North Hempstead for the issuance of the requested use variance.The petitioner is the owner of real property located in the Town of North Hempstead. The petitioner’s house was constructed in 1920, on a 5,000 square-foot lot, and is a two-family residence. It is located in what later became a business district. Prior to amendments to the Town Zoning Code in 1945, two-family residences were permitted on all 5,000 square-foot lots in the district. Current zoning laws, however, prohibit all residential use in that district.When the petitioner purchased the property in 1977, he believed that the house was a legal two-family residence. Since he purchased the property, the petitioner has been renting out the two units, and he has obtained various permits from the Town allowing him to do so. In October 2013, the petitioner applied for a variance to permit him to continue using the property as a two-family dwelling. The Town rejected the application, and the petitioner appealed to the respondent, Town of North Hempstead Board of Zoning Appeals (hereinafter the Board). Following a hearing, the Board denied the application. The petitioner commenced this proceeding to review the Board’s determination. In the judgment appealed from, the Supreme Court denied the petition. The petitioner appeals.“A use of property that existed before the enactment of a zoning restriction that prohibits the use is a legal nonconforming use” (Matter of Sand Land Corp. v. Zoning Bd. of Appeals of Town of Southampton, 137 AD3d 1289, 1291-1292 [internal quotation marks omitted]; see Matter of Toys R Us v. Silva, 89 NY2d 411, 417). ”A nonconforming use may not be established through the existing use of land that was commenced or maintained in violation of a prior zoning ordinance” (Matter of Tavano v. Zoning Bd. of Appeals of the Town of Patterson, 149 AD3d 755, 756; see Matter of Rudolf Steiner Fellowship Found. v. De Luccia, 90 NY2d 453, 458; Matter of Marino v. Town of Smithtown, 61 AD3d 761, 762). ”Thus, to establish a legal nonconforming use, a property owner must demonstrate that the allegedly preexisting use was legal prior to the enactment of the zoning ordinance that purportedly rendered it nonconforming” (Matter of Tavano v. Zoning Bd. of Appeals of the Town of Patterson, 149 AD3d at 756; see Matter of Sand Land Corp. v. Zoning Bd. of Appeals of Town of Southampton, 137 AD3d at 1293; Matter of Keller v. Haller, 226 AD2d 639, 640).Local zoning boards have broad discretion in considering an application for a variance, and judicial review is limited to ascertaining whether the determination of the board was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Ifrah v. Utschig, 98 NY2d 304, 308; Matter of Halperin v. City of New Rochelle, 24 AD3d 768, 771). A determination will not be deemed rational if it rests entirely on subjective considerations, such as general community opposition, and lacks an objective factual basis (see Matter of Halperin v. City of New Rochelle, 24 AD3d at 772). Further, “[c]onclusory findings of fact are insufficient to support a determination by a zoning board of appeals, which is required to clearly set forth ‘how’ and ‘in what manner’ the granting of a variance would be improper” (Matter of Gabrielle Realty Corp. v. Board of Zoning Appeals of Vil. of Freeport, 24 AD3d 550, 550, quoting Matter of Farrell v. Board of Zoning & Appeals of Inc. Vil. of Old Westbury, 77 AD2d 875, 876).Contrary to the Board’s conclusion, the petitioner presented evidence, including affidavits from neighbors and others who had lived in the community for many years, which was sufficient to establish that the property was a legal two-family residence prior to the 1945 amendments to the Town Zoning Code. By contrast, there was no evidence presented at the hearing to demonstrate that the property had been converted into a two-family dwelling after the 1945 amendments. Accordingly, the record does not contain evidence to support the rationality of the Board’s determination denying the proposed use variance. Since the Board’s determination was irrational, and arbitrary and capricious, the Supreme Court should have granted the petition, annulled the Board’s determination, and remitted the matter to the Town for the issuance of the requested use variance (see Matter of Marina’s Edge Owner’s Corp. v. City of New Rochelle Zoning Bd. of Appeals, 129 AD3d 841, 844; Montgomery Group v. Town of Montgomery, 4 AD3d 458, 460).In light of our determination, we need not address the petitioner’s remaining contention.DILLON, J.P., SGROI, MILLER and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros, Connolly and Iannacci, JJ.PEOPLE, etc., res, v. Michael Correa, ap — (Ind. No. 5806/15)Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Dineen Ann Riviezzo, J.), imposed February 24, 2016, upon his plea of guilty, 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 appellate review of his contention that the sentence imposed was excessive (see People v. Sanders, 25 NY3d 337; People v. Hidalgo, 91 NY2d 733).SCHEINKMAN, P.J., LEVENTHAL, BARROS, CONNOLLY and IANNACCI, JJ., concur.By Leventhal, J.P.; Cohen, Hinds-Radix and Connolly, JJ.Arthur Gluck, res, v. Jacob Hirsch appellants def — (Index No. 15005/10)Lonuzzi & Woodland, LLP, Brooklyn, NY (John Lonuzzi of counsel), for appellants.Borenstein McConnell & Calpin, P.C., Brooklyn, NY (Abraham Borenstein of counsel), for respondent.In an action to foreclose a mortgage, the defendants Jacob Hirsch and Blime Hirsch appeal, by permission, from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated December 3, 2015. In the order, the Supreme Court declined to sign the appellants’ proposed order to show cause.ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.The defendants Jacob Hirsch and Blime Hirsch (hereinafter together the Hirsches) defaulted by failing to appear in this action to foreclose a mortgage on real property they owned. A judgment of foreclosure and sale dated December 12, 2014, was entered in favor of the plaintiff and against, among others, the Hirches. On December 3, 2015, the Hirsches presented a proposed order to show cause to the Supreme Court, seeking to vacate the judgment pursuant to CPLR 5015(a)(1), (3), and (4), to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(8), to disqualify the plaintiff’s counsel based upon an alleged conflict of interest, and to cancel the notice of pendency. The proposed order to show cause also sought a temporary restraining order staying the foreclosure sale of the property scheduled for later that day, December 3, 2015, at 2:30 p.m., pending the hearing and determination of their proposed motion. After oral argument, the court declined to sign the proposed order to show cause, with a handwritten notation that the Hirsches failed to demonstrate a meritorious defense to the action and that the Hirsches failed to submit proof of misconduct by the plaintiff’s attorney.By decision and order on motion dated December 22, 2015, this Court granted the Hirsches leave to appeal from the Supreme Court’s order declining to sign the proposed order to show cause and stayed the foreclosure sale of the subject premises pending the hearing and determination of the appeal (see Gluck v. Hirsch, 2015 NY Slip Op 94403[U]).“The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein” (CPLR 2214[d]). Whether the circumstances constitute a “proper case” for the use of an order to show cause instead of a notice of motion is a matter within the discretion of the court to which the proposed order is presented (see Siegel, NY Prac §248 [5th ed, 2011]). Here, under the particular circumstances of this case, this was a proper case for the use of an order to show cause, and the Supreme Court improvidently exercised its discretion in declining to sign the proposed order to show cause (see Matter of Georghakis v. Matarazzo, 123 AD3d 711, 711).Accordingly, we remit the matter to the Supreme Court, Kings County, to set a return date for the Hirsches’ order to show cause.LEVENTHAL, J.P., COHEN, HINDS-RADIX and CONNOLLY, JJ., concur.By Dillon, J.P.; Chambers, Maltese and Barros, JJ.Claire Levens ap, v. Marion Dill res — (Index No. 5381/13)In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Leonard Livote, J.), entered November 23, 2015. The judgment, upon a jury verdict, is in favor of the defendants and against the plaintiffs dismissing the complaint.ORDERED that the judgment is affirmed, with costs.The plaintiff Claire Levens (hereinafter the injured plaintiff), and her husband suing derivatively, commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the injured plaintiff on May 4, 2012, as a result of a motor vehicle accident. The defendant driver, Marion Dill, who was car pooling with the injured plaintiff, pulled her vehicle over next to the school where they both worked to allow the injured plaintiff to exit the vehicle. Unbeknownst to either party, when the injured plaintiff exited the vehicle, she closed the rear passenger door on the bottom of her coat, but she signaled to Dill that she was clear of the door and ready to go. The coat was caught in an area of the door that was below the window and not visible to Dill from the inside of the vehicle. Thus, when Dill began driving off to park the car, her vehicle pulled off the injured plaintiff’s coat and the injured plaintiff fell to the ground. Dill immediately stopped her car when onlookers brought the incident to her attention.In his summation to the jury, the plaintiffs’ counsel argued that Dill was negligent in moving her vehicle before it was reasonably safe to do so. The jury found that Dill was negligent but that her negligence was not a substantial factor in causing the accident. The plaintiffs’ counsel moved to set aside the verdict as contrary to the weight of the credible evidence adduced at trial, arguing that it was illogical for the jury to find both that Dill was negligent for driving off with the injured plaintiff’s coat in the car door and that her negligence was not a substantial factor in causing the accident. The Supreme Court denied the motion and entered a judgment in favor of the defendants and against the plaintiffs dismissing the complaint.On appeal, the plaintiffs contend that the verdict should have been set aside as contrary to the weight of the evidence because the jury’s findings were inconsistent. A jury verdict should not be set aside as contrary to the weight of the evidence presented at trial unless the jury could not have reached the verdict by any fair interpretation of the evidence (see Lolik v. Big v. Supermarkets, 86 NY2d 744; Sokolik v. Pateman, 114 AD3d 839; Chavanne v. BZL Cleaning Solution, Inc., 84 AD3d 852; Desposito v. City of New York, 55 AD3d 659; Nicastro v. Park, 113 AD2d 129). ”Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors. It is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses” (Gibson v. Singh Towing, Inc., 155 AD3d 614, 616 [citations and internal quotation marks omitted]; see Cohen v. Hallmark Cards, 45 NY2d 493).Where the verdict can be logically reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view (see Coma v. City of New York, 97 AD3d 715; Jaffier v. Wilson, 54 AD3d 725; Rubin v. Pecoraro, 141 AD2d 525; Koopersmith v. General Motors Corp., 63 AD2d 1013, 1014). Moreover, “[a] jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Das v. Costco Wholesale Corp., 98 AD3d 712, 713 [citations and internal quotation marks omitted]).Here, a fair interpretation of the evidence supported the jury’s finding that Dill’s negligence was not a substantial factor in causing the injured plaintiff’s injuries. Based upon the testimony adduced at trial, the injured plaintiff closed the rear passenger side door on her own coat, which she was wearing, in such a way that it was not visible to Dill. After the injured plaintiff shut the door, and then signaled to Dill that she was clear of the door, she turned to walk away from Dill’s car, which drove off, dragging the coat and the injured plaintiff. These acts were the sole proximate cause of the accident (see Gibson v. Singh Towing, Inc., 155 AD3d at 616; cf. Victoria H. v. Board of Educ. of City of N.Y., 129 AD3d 912; Das v. Costco Wholesale Corp., 98 AD3d 712; Ahr v. Karolewski, 32 AD3d 805). Moreover, under the circumstances presented, the issues of negligence and proximate cause were not inextricably interwoven (see Bonomo v. City of New York, 78 AD3d 1094; Zhagui v. Gilbo, 63 AD3d 919; Jaffier v. Wilson, 54 AD3d 725). Therefore, the verdict was neither inconsistent nor contrary to the weight of the evidence.DILLON, J.P., CHAMBERS, MALTESE and BARROS, JJ., concur.By Rivera, J.P.; Roman, Hinds-Radix and Christopher, JJ.Nancy Pacella ap, v. Town of Newburgh Volunteer Ambulance Corps. Inc., etc., et al., respondents def — (Index No. 1750/10)In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from (1) an order of the Supreme Court, Orange County (John P. Colangelo, J.), dated September 10, 2015, (2) two orders of the same court, both dated September 15, 2015, and (3) a judgment of the same court dated April 8, 2016. The order dated September 10, 2015, insofar as appealed from, denied those branches of the plaintiffs’ motion which were for summary judgment on the issue of liability on the first cause of action insofar as asserted against the defendant Town of Newburgh Volunteer Ambulance Corps. Inc. and on the third and fourth causes of action insofar as asserted against that defendant and the individual defendants, and granted those branches of the cross motion of those defendants and the defendant Town of Newburgh Volunteer Ambulance Corps. Inc. Length of Service Award Program which were for summary judgment dismissing the complaint insofar as asserted against the defendant Town of Newburgh Volunteer Ambulance Corps. Inc. and the individual defendants. The first order dated September 15, 2015, denied that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability on the third and fourth causes of action insofar as asserted against the defendant Hometown Firefighter Services Insurance Agency, and granted that defendant’s cross motion for summary judgment dismissing the complaint insofar as asserted against it. The second order dated September 15, 2015, denied the plaintiffs’ motion pursuant to CPLR 3025(b) for leave to amend the complaint to add defendants. The judgment, insofar as appealed from, is in favor of the defendant Town of Newburgh Volunteer Ambulance Corps. Inc., the individual defendants, and the defendant Hometown Firefighter Services Insurance Agency and against the plaintiffs dismissing the complaint insofar as asserted against those defendants.ORDERED that the appeals from the orders are dismissed; and it is further,ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the first cause of action insofar as asserted against the defendant Town of Newburgh Volunteer Ambulance Corps. Inc.; as so modified, the judgment is affirmed insofar as appealed from, the first cause of action is reinstated insofar as asserted against that defendant, that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability on the first cause of action insofar as asserted against that defendant is granted, that branch of the cross motion of that defendant and others which was for summary judgment dismissing the first cause of action insofar as asserted against that defendant is denied, the order dated September 10, 2015, is modified accordingly, and the matter is remitted to the Supreme Court, Orange County, for further proceedings on the first cause of action insofar as asserted against that defendant, and for the entry of an appropriate amended judgment thereafter; and it is further,ORDERED that one bill of costs is awarded to the plaintiffs, payable by the defendant Town of Newburgh Volunteer Ambulance Corps. Inc., and one bill of costs is awarded to the defendant Hometown Firefighter Services Insurance Agency, payable by the plaintiffs.The appeals from the intermediate orders 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 appeals from the orders are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).The plaintiffs are present or former members of the defendant Town of Newburgh Volunteer Ambulance Corps. Inc. (hereinafter TONVAC). In February 2000, TONVAC established a length of service award program (hereinafter the LOSAP), retroactive to January 1, 1998. The LOSAP documents provided for certain payments to participants who were at least 60 years of age, based on their length of service and activities undertaken, as well as certain benefits for the participants’ beneficiaries. A participant’s right to accrued benefits would fully vest after five years of service, at the entitlement age, or at the time of death or disability. Notwithstanding the vesting schedule, “upon any full or partial termination of the Plan, a Participant shall become fully Vested in his [or her] Accrued Benefit which shall not thereafter be subject to forfeiture.”The named fiduciaries of the LOSAP were TONVAC, as sponsor, as well as an administrator and a trustee. Each named fiduciary was responsible for the proper exercise of its own powers and duties. The LOSAP plan document further provided that “each named Fiduciary may rely upon any such direction, information or action of another named Fiduciary as being proper under this Agreement, and is not required under this Agreement to inquire into the propriety of any such direction, information or action.” Section 9.4 of the plan document provided: “It shall be impossible by operation of the Plan or of the Trust, by termination of either, by power of revocation or amendment, by the happening of any contingency, by collateral arrangement or by any other means, for any part of the corpus or income of any trust fund maintained pursuant to the Plan or any funds contributed thereto to be used for, or diverted to, purposes other than the exclusive benefit of Participants, retired Participants, or their Beneficiaries.”In May 2008, TONVAC’s membership voted to immediately freeze its contributions to the plan and payouts to current beneficiaries. Participants did not receive their June 2008 benefit payments or any payments thereafter. On October 14, 2008, TONVAC terminated the LOSAP. Upon TONVAC’s direction, the administrator liquidated the LOSAP and turned the trust funds over to TONVAC, which used them for its general business purposes.The plaintiffs commenced this action against, among others, TONVAC, certain members of its Board of Directors, the LOSAP, and Hometown Firefighter Services Insurance Agency (hereinafter Hometown), which was alleged to have been the administrator of the LOSAP. The first causes of action, alleging breach of contract, was asserted against TONVAC and the LOSAP, and the fifth cause of action, alleging promissory estoppel, was asserted only against TONVAC. The second, third, and fourth causes of action were asserted against all defendants and alleged violations of the Employee Retirement Income Security Act of 1974 (29 USC §1001 et seq.; hereinafter ERISA), sought declaratory relief, and alleged breach of fiduciary duties, respectively.The plaintiffs moved, inter alia, for summary judgment on the issue of liability on the first cause of action insofar as asserted against TONVAC and on third and fourth causes of action. TONVAC and the individual defendants (hereinafter collectively the TONVAC defendants), as well as the LOSAP, cross-moved for summary judgment dismissing the complaint insofar as asserted against them, and Hometown separately cross-moved for summary judgment dismissing the complaint insofar as asserted against it. The plaintiffs further moved pursuant to CPLR 3025(b) for leave to amend the complaint to add as defendants two entities alleged to have been the administrator of the LOSAP. In three separate orders, the Supreme Court, inter alia, denied those branches of the plaintiffs’ motion which were for summary judgment on the issue of liability on the first, third, and fourth causes of action, granted the separate cross motions, and denied the plaintiffs’ motion for leave to amend the complaint. Subsequently, judgment was entered in favor of the cross-moving defendants and against the plaintiffs dismissing the complaint. The plaintiffs appeal.We agree with the Supreme Court’s determination that ERISA does not apply to the LOSAP because the plaintiffs were not employees within the meaning of the statute (see 29 USC §§1002[6]; 1003[a]; Nationwide Mut. Ins. Co. v. Darden, 503 US 318, 323). Accordingly, we agree with the court’s determination to award the TONVAC defendants and Hometown summary judgment dismissing the second cause of action insofar as asserted against each of them.However, we disagree with Supreme Court’s determination that the LOSAP did not constitute an enforceable contract between the plaintiffs and TONVAC. The TONVAC defendants did not dispute that the plan specification document and the plan document, together, constituted the LOSAP which was adopted. Rather, they argued that the LOSAP was gratuitous and therefore unenforceable. The TONVAC defendants’ contention is without merit. The LOSAP was a unilateral contract which created a vested right in those participants who accepted the offer it contained by continuing in service for the requisite number of years (see Pratt v. Petroleum Prod. Mgt., Inc. Employee Sav. Plan & Trust, 920 F2d 651, 661 [10th Cir]; Black v. Bresee’s Oneonta Dept. Store, Inc. Sec. Plan, 919 F Supp 597, 602 [ND NY]; Kemmerer v. ICI Americas Inc., 842 F Supp 138, 142-143 [ED Pa], affd in part 70 F3d 281 [3d Cir]; Scoville v. Surface Transit, 39 Misc 2d 991, 993 [Sup Ct, NY County]). Once a participant performed the conditions of the offer, the entitlement to benefits vested, binding TONVAC to its unilateral promise (see Pratt v. Petroleum Prod. Mgt., Inc. Employee Sav. Plan & Trust, 920 F2d at 661; Morales v. Plaxall, Inc., 541 F Supp 1387, 1391 [ED NY]; Scoville v. Surface Transit, 39 Misc 2d at 993).In support of their motion, the plaintiffs established that their rights to accrued benefits vested in accordance with the provisions of the LOSAP, creating an enforceable contract between them and TONVAC (see Scoville v. Surface Transit, 39 Misc 2d at 993; cf. Kravitz v. Twentieth Century-Fox Film Corp., 5 Misc 2d 368, 370-371 [Sup Ct, NY County]). They further demonstrated that, upon termination of the LOSAP, TONVAC breached the contract by depriving them of their vested benefits and diverting the LOSAP trust funds to purposes other than for the exclusive benefit of participants and their beneficiaries. In opposition, the TONVAC defendants failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d 557, 562). Accordingly, the court should have granted that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability against TONVAC on the first cause of action, and should have denied that branch of the cross motion of the TONVAC defendants and the LOSAP which was for summary judgment dismissing that cause of action insofar as asserted against TONVAC.The existence of a valid and enforceable contract between the parties precludes recovery under a promissory estoppel cause of action arising out of the same subject matter (see Hoeg Corp. v. Peebles Corp., 153 AD3d 607, 610; Wald v. Graev, 137 AD3d 573, 574; Grossman v. New York Life Ins. Co., 90 AD3d 990, 991-992). Accordingly, we agree with the Supreme Court’s determination to award TONVAC summary judgment dismissing the fifth cause of action.Similarly, we agree with the Supreme Court’s determination to award the TONVAC defendants and Hometown summary judgment dismissing the third cause of action, which sought a declaratory judgment, insofar as asserted against each of them, since it was duplicative of the breach of contract cause of action and unnecessary (see Village of Kiryas Joel v. County of Orange, 144 AD3d 895, 898; BGW Dev. Corp. v. Mount Kisco Lodge No. 1552 of Benevolent & Protective Order of Elks of U.S. of Am., 247 AD2d 565, 568).Insofar as asserted against TONVAC, the fourth cause of action, which alleged breach of fiduciary duties, was duplicative of the breach of contract cause of action, since those causes of action are based on the same facts and seek essentially identical damages (see Federico v. Brancato, 144 AD3d 965, 967; Canzona v. Atanasio, 118 AD3d 841, 843; Chowaiki & Co. Fine Art Ltd. v. Lacher, 115 AD3d 600). Accordingly, we agree with the Supreme Court’s determination to award the TONVAC defendants summary judgment dismissing the fourth cause of action insofar as asserted against them.Hometown demonstrated its prima facie entitlement to summary judgment dismissing the fourth cause of action insofar as asserted against it by demonstrating that, under the terms of the LOSAP, TONVAC had sole responsibility concerning termination of the LOSAP and allocation of the trust funds, and Hometown was entitled to rely on TONVAC’s directions regarding these issues as being proper under the agreement. In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d at 562). Accordingly, we agree with the Supreme Court’s grant of that branch of Hometown’s cross motion which was for summary judgment dismissing the fourth cause of action insofar as asserted against it.In light of our determination that the causes of action asserted against Hometown were without merit, the Supreme Court providently exercised its discretion in denying the plaintiffs’ motion for leave to amend the complaint so as to assert those causes of action against two additional entities alleged to have been the administrator of the LOSAP, as the proposed amendments were patently devoid of merit (see Santostefano v. Middle Country Cent. Sch. Dist., 156 AD3d 926, 928; Skywest, Inc. v. Ground Handling, Inc., 150 AD3d 922, 924).RIVERA, J.P., ROMAN, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Roman, Hinds-Radix and Christopher, JJ.Nancy Pacella ap, v. RSA Consultants, Inc. res — (Index No. 7537/14)In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from (1) an order of the Supreme Court, Orange County (John P. Colangelo, J.), dated September 10, 2015, and (2) a judgment of the same court dated April 8, 2016. The order, insofar as appealed from, granted the defendants’ motion pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint. The judgment is in favor of the defendants and against the plaintiffs dismissing the complaint.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment is affirmed; and it is further,ORDERED that one bill of costs is awarded to the defendants.The appeal from the intermediate 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 underlying facts relating to the length of service award program (hereinafter the LOSAP) adopted by the Town of Newburgh Volunteer Ambulance Corps. Inc. (hereinafter TONVAC), are described in the companion appeal (see Pacella v. Town of Newburgh Volunteer Ambulance Corps. Inc., __ AD3d __ [decided herewith]). On October 2, 2014, the plaintiffs commenced this action against two entities alleged to have been the administrator of the LOSAP. They asserted causes of action alleging breach of contract and fraud, and for an accounting, money had and received, and a declaratory judgment, relating to the cessation of their LOSAP benefits and the administrator’s transfer of the remaining trust funds to TONVAC. The defendants moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint. The Supreme Court granted the motion, and judgment was entered in favor of the defendants and against the plaintiffs dismissing the complaint. The plaintiffs appeal.On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026; Leon v. Martinez, 84 NY2d 83, 87-88; Thompson Bros. Pile Corp. v. Rosenblum, 121 AD3d 672). A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d 587, 588).“The existence of a binding contract is an essential element of a cause of action to recover damages for breach of contract” (Moulton Paving, LLC v. Town of Poughkeepsie, 98 AD3d 1009, 1010-1011; see Vitro S.A.B. de C.V. v. Aurelius Capital Mgt., L.P., 99 AD3d 564, 564). Here, the documentary evidence conclusively established that the defendants were not parties to the LOSAP.“The right to an accounting rests on the existence of a trust or fiduciary relationship regarding the subject matter of the controversy at issue” (Town of New Windsor v. New Windsor Volunteer Ambulance Corps, Inc., 16 AD3d 403, 404; see Akkaya v. Prime Time Transp., Inc., 45 AD3d 616). ”To obtain an accounting, a plaintiff must show that there was some wrongdoing on the part of a defendant with respect to the fiduciary relationship” concerning property in which the plaintiff has an interest (Benedict v. Whitman Breed Abbott & Morgan, 110 AD3d 935, 938; see Lawrence v. Kennedy, 95 AD3d 955, 958; 1 NY Jur 2d Accounts and Accounting §§37, 43). While the administrator had fiduciary duties to the plaintiffs with regard to the LOSAP, pursuant to its terms, the administrator was entitled to rely on TONVAC’s directions regarding termination of the LOSAP and allocation of the trust funds (see Pacella v. Town of Newburgh Volunteer Ambulance Corps. Inc., __ AD3d __ [decided herewith]).The cause of action seeking declaratory relief was duplicative of the breach of contract and accounting causes of action (see Village of Kiryas Joel v. County of Orange, 144 AD3d 895, 898; BGW Dev. Corp. v. Mount Kisco Lodge No. 1552 of Benevolent & Protective Order of Elks of U.S. of Am., 247 AD2d 565, 568).To state a cause of action for money had and received, a plaintiff must allege that “(1) the defendant received money belonging to the plaintiff, (2) the defendant benefitted from receipt of the money, and (3) under principles of equity and good conscience, the defendant should not be permitted to keep the money” (Goel v. Ramachandran, 111 AD3d 783, 790; see Lebovits v. Bassman, 120 AD3d 1198, 1199). Since the complaint alleged that the defendants released the trust funds to TONVAC and were no longer in possession of those funds, it failed to state a cause of action for money had and received (see Matter of Board of Educ.of Enlarged City School Dist. of Middletown v. Russo, 283 AD2d 490, 491-492). Moreover, the cause of action was time-barred insofar as it related to trust funds received by the defendants prior to October 2, 2008 (see Regional Economic Community Action Program, Inc. v. Enlarged City School Dist. of Middletown, 18 NY3d 474, 479-480; Loeuis v. Grushin, 126 AD3d 761, 765).The elements of fraud are a misrepresentation or material omission of fact, knowledge of its falsity, intent to induce reliance, justifiable reliance, and damages (see Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559; Blanco v. Polanco, 116 AD3d 892, 895). Fraudulent concealment additionally requires that the alleged wrongdoer had a duty to disclose the subject information, but failed to do so (see Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 179; Fox Paine & Co., LLC v. Houston Cas. Co., 153 AD3d 673, 677). Fraud must be pleaded with particularity (see CPLR 3016[b]). The statute of limitations for fraud is six years from the commission of the fraud or two years from the time the plaintiff discovered, or could with reasonable diligence have discovered, the fraud, whichever is later (see Loeuis v. Grushin, 126 AD3d at 763-764).Here, so much of the fraud cause of action as alleged that, in June 2008, the defendants falsely represented that they were under a “gag order” and could not speak with the plaintiffs regarding the termination of the LOSAP, was untimely. In any event, the defendants had no duty to disclose to the plaintiffs TONVAC’s actions regarding termination of the LOSAP or its transfer of the trust funds to TONVAC. Moreover, “[a] plaintiff is expected to exercise ordinary diligence and may not claim to have reasonably relied on a defendant’s representations [or silence] where he [or she] has ‘means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation’” (Sitar v. Sitar, 61 AD3d 739, 742, quoting Curran, Cooney, Penney v. Young & Koomans, 183 AD2d 742, 743). Since the plaintiffs could have directed their inquiries regarding the status of the LOSAP to TONVAC, the entity responsible for termination, they failed to adequately allege reasonable reliance on the defendants’ silence, or that such silence caused them any injury. Thus, the complaint failed to state a cause of action to recover damages for fraudulent misrepresentation or concealment.Accordingly, we agree with the Supreme Court’s determination to grant the defendants’ motion to dismiss the complaint.RIVERA, J.P., ROMAN, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Chambers, Sgroi and Maltese, JJ.Ignacio Previtera, res-ap, v. Sanjeev Nath, etc., appellant-respondent def — (Index No. 24602/11)In an action to recover damages for medical malpractice, the defendant Sanjeev Nath appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Queens County (Howard G. Lane, J.), entered January 4, 2016. The order, insofar as appealed from, in effect, denied that branch of the motion of the defendant Sanjeev Nath which was pursuant to CPLR 4404(a) to set aside so much of a jury verdict as was against him and in favor of the plaintiff and for judgment as a matter of law dismissing the complaint insofar as asserted against him. The order, insofar as cross-appealed from, granted that branch of the motion of the defendant Sanjeev Nath which was pursuant to CPLR 4404(a) to set aside so much of the jury verdict as was against him and in favor of the plaintiff as contrary to the weight of the evidence and for a new trial on limited issues.ORDERED that the order is reversed insofar as appealed and cross-appealed from, on the law, with one bill of costs to the defendant Sanjeev Nath, that branch of the motion of the defendant Sanjeev Nath which was pursuant to CPLR 4404(a) to set aside so much of the jury verdict as was against him and in favor of the plaintiff and for judgment as a matter of law dismissing the complaint insofar as asserted against him is granted, and that branch of the motion of the defendant Sanjeev Nath which was pursuant to CPLR 4404(a) to set aside so much of the jury verdict as was against him and in favor of the plaintiff as contrary to the weight of the evidence and for a new trial on limited issues is denied as academic.On November 5, 2009, the defendant Sanjeev Nath (hereinafter the defendant), an ophthalmologist, performed cataract surgery on the plaintiff’s left eye. Certain complications occurred during the surgery, which led the defendant to perform a second surgery on November 12, 2009. After the second surgery, the plaintiff experienced impaired vision in his left eye, and it was discovered that he had sustained peripheral retina detachment during the second left eye surgery. The defendant then referred the plaintiff to a vitreoretinal surgeon, who performed surgery to reattach the plaintiff’s left eye retina with limited success.The plaintiff commenced this medical malpractice action against the defendant, among others. After trial, the jury returned a special verdict finding that the defendant did not depart from good and accepted medical practices in the manner in which he performed the two surgeries on the plaintiff’s left eye. However, the jury found, in effect, that the defendant did depart from good and accepted medical practices by performing the second surgery himself, instead of referring the plaintiff to a vitreoretinal surgeon to perform the second surgery. The jury found that said departure was a substantial factor resulting in harm to the plaintiff, and awarded the plaintiff damages in the sum of $800,000 for past pain and suffering and $450,000 for future pain and suffering.The defendant then moved, inter alia, pursuant to CPLR 4404(a) to set aside so much of the jury verdict as was against him and in favor of the plaintiff and for judgment as a matter of law dismissing the complaint insofar as asserted against him, or alternatively, to set aside that portion of the verdict as against the weight of the evidence and for a new trial. In an order entered January 4, 2016, the Supreme Court determined that the verdict against the defendant was contrary to the weight of the evidence, and directed a new trial as to the issue of whether the defendant departed from good and accepted medical practices by performing the second eye surgery rather than referring the plaintiff to a vitreoretinal surgeon for that purpose. The defendant appeals and the plaintiff cross-appeals from this order.A motion for judgment as a matter of law pursuant to CPLR 4404(a) 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 Cohen v. Hallmark Cards, 45 NY2d 493, 499; Gaspard v. Aronoff, 153 AD3d 795, 796). To establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove that the defendant deviated from accepted standards of medical practice and that such deviation proximately caused the plaintiff’s injuries (see Gaspard v. Aronoff, 153 AD3d at 796; Castro v. New York City Health & Hosps. Corp., 74 AD3d 1005, 1006).Here, there was no valid line of reasoning or permissible inferences which could possibly lead rational persons to the conclusion that the defendant departed from accepted medical practices by performing the second surgery rather than referring the plaintiff to a vitreoretinal surgeon for that purpose. Although the plaintiff’s expert testified that the defendant should not have performed the surgery because he did not complete a fellowship in retinal-vitreous surgery, the expert did not adequately account for the defendant’s experience performing such surgeries for more than 30 years, and, indeed, did not have specific knowledge of the extent of the defendant’s training and experience in that regard.Additionally, even if the plaintiff established a departure from accepted medical practices, there was no valid line of reasoning or permissible inferences which could possibly lead rational persons to the conclusion that such departure was a substantial factor in causing the plaintiff’s injuries. A plaintiff can make a prima facie showing of proximate cause by presenting evidence from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased the injury, even if the expert cannot quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased the injury (see Goldberg v. Horowitz, 73 AD3d 691, 694; Alicea v. Ligouri, 54 AD3d 784). Here, however, the opinion of the plaintiff’s expert that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased the injury because, generally, a lack of experience increases the complication rate of the medical procedure, was too speculative to establish that “it was more probable than not” that the defendant’s purported deviation was a substantial factor in causing the injury (Goldberg v. Horowitz, 73 AD3d at 694 [internal quotation marks omitted]; see Kenigsberg v. Cohn, 117 AD2d 652, 653-654).Accordingly, the branch of the defendant’s motion which was pursuant to CPLR 4404(a) to set aside so much of the jury verdict as was against him and in favor of the plaintiff and for judgment as a matter of law dismissing the complaint insofar as asserted against him should have been granted.The plaintiff’s remaining contentions either are without merit or need not be reached in light of our determination.MASTRO, J.P., CHAMBERS, SGROI and MALTESE, JJ., concur.By Scheinkman, P.J.; Cohen, Duffy and Connolly, JJ.Bank of New York Mellon, res, v. Mona Celestin def, Alberte Laguerre, ap — (Index No. 33248/15)In an action to foreclose a mortgage, the defendant Alberte Laguerre appeals from an order of the Supreme Court, Rockland County (William A. Kelly, J.), dated November 17, 2015. The order denied the motion of the defendant Alberte Laguerre pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her.ORDERED that the order is affirmed, with costs.In 2006, the defendant Mona Celestin executed a note in favor of American Brokers Conduit (hereinafter ABC) and, as security, gave a mortgage to Mortgage Electronic Registration Systems, Inc., as nominee for ABC, encumbering certain real property. Both the note and the mortgage provided that the lender could require immediate payment in full in the event of the borrower’s default, which included the failure to make the monthly installment payments, provided the lender sent a 30-day notice of default. In 2007, Celestin conveyed the property to the defendant Alberte Laguerre (hereinafter the appellant). In 2008, Celestin entered into a written stipulation with the plaintiff (hereinafter the stipulation), wherein she acknowledged that the note and mortgage were in default and agreed to make certain payments on dates and in amounts set forth in the stipulation, which was designed to bring the payments due under the note and mortgage current. In the stipulation, the plaintiff agreed to take no affirmative steps to commence a foreclosure action provided that Celestin complied with all of the terms of the stipulation. Thereafter, sporadic payments were made pursuant to the stipulation. The last, a partial payment, was made on January 24, 2009. In 2010, the plaintiff commenced an action to foreclose the mortgage (hereinafter the 2010 action). That action was thereafter “administratively dismissed” by the Supreme Court.In July 2015, the plaintiff commenced this foreclosure action against, among others, Celestin and the appellant, alleging a failure to make the monthly payment due under the note. The appellant moved to dismiss the complaint insofar as asserted against her as time-barred. The appellant asserted that she had been the beneficial owner of the property since 1982 and that it was she, not Celestin, who made the actual payments. The appellant contended that, pursuant to the terms of the stipulation, the statute of limitations began to run in January 2009. The Supreme Court denied the motion, finding that the action was not time-barred.In resolving a motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the action is barred by the statute of limitations, the court must accept the facts as alleged in the complaint as true, and accord the plaintiff the benefit of every possible favorable inference (see U.S. Bank N.A. v. Gordon, 158 AD3d 832, 834; Amrusi v. Nwaukoni, 155 AD3d 814, 816). In such a motion, the defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired (see U.S. Bank N.A. v. Gordon, 158 AD3d at 834-835; Amrusi v. Nwaukoni, 155 AD3d at 816). ”If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period” (U.S. Bank N.A. v. Gordon, 158 AD3d at 835 [internal quotation marks omitted]; see Amrusi v. Nwaukoni, 155 AD3d at 816; Elia v. Perla, 150 AD3d 962, 964).Here, the appellant failed to sustain her initial burden of demonstrating, prima facie, that the action was untimely. An action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein, must be commenced within six years (see CPLR 213[4]; U.S. Bank N.A. v. Gordon, 158 AD3d at 834; Deutsche Bank Natl. Trust Co. v. Gambino, 153 AD3d 1232, 1234). In a mortgage foreclosure action, the statute of limitations begins to run “from the due date for each unpaid installment or the time the mortgagee is entitled to demand full payment, or [from] when the mortgage debt has been accelerated” (Zinker v. Makler, 298 AD2d 516, 517). Once a mortgage debt is accelerated, the borrower’s right and obligation to make monthly installments ceases and all sums become immediately due and payable (see Federal Natl. Mtge. Assn. v. Mebane, 208 AD2d 892, 894).The appellant’s contention that, upon her default in the payments pursuant to the stipulation, the note and mortgage were accelerated, is contrary to the plain language of the stipulation. Further, contrary to the appellant’s contention, CPLR 206 is inapplicable in this case (see CPLR 206[a]; Uniform Commercial Code 3-104[2][d]).Moreover, the stipulation provided that acceptance of sums paid by the debtor under the stipulation did not constitute a waiver of the plaintiff’s right to foreclose its mortgage “or in any other way prosecute or defend its rights,” in the event of default under the stipulation (see Deutsche Bank Natl. Trust Co. v. Haller, 100 AD3d 680, 681 [forbearance agreement provided that terms of mortgage remained in full force and effect]; see also JPMorgan Chase Bank, N.A. v. Galt Group, Inc., 84 AD3d 1028, 1029; Deutsche Bank Natl. Trust Co. v. Williams, 62 AD3d 826, 826; Federal Home Loan Mtge. Corp. v. Nappy, 254 AD2d 323). Although the mortgage provided that the plaintiff could, upon notice, demand immediate payment in full, there is no indication in the record that the plaintiff opted to accelerate and demand payment in full prior to the commencement of the 2010 action (see Loiacono v. Goldberg, 240 AD2d 476, 477; 1-4 Bergman on New York Mortgage Foreclosures §4.03). Since this action was commenced within six years of the 2010 action, we agree with the Supreme Court’s determination to deny the appellant’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her (see Nationstar Mtge., LLC v. Weisblum, 143 AD3d 866, 867-868).SCHEINKMAN, P.J., COHEN, DUFFY and CONNOLLY, JJ., concur.By Chambers, J.P.; Sgroi, Maltese and Connolly, JJ.Philip Perrault, ap, v. Village Dunes Apt. Corp., res — (Index No. 9841/14)In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from a corrected order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated February 22, 2017. The corrected order granted the defendant’s motion for summary judgment dismissing the complaint.ORDERED that on the Court’s own motion, the notice of appeal from an order dated February 16, 2017, is deemed to be a premature notice of appeal from the corrected order dated February 22, 2017 (see CPLR 5520[c]); and it is further,ORDERED that the corrected order is affirmed; and it is further,ORDERED that one bill of costs is awarded to the defendant.In 2003, the plaintiff purchased a unit in a cooperative building owned by the defendant, Village Dunes Apt. Corp. In 2013, the plaintiff requested that the defendant’s board of directors approve his proposal to, inter alia, raise the height of the ceiling in a portion of his unit by enclosing unfinished common-area space above his unit for his exclusive use, and to replace an existing window in his unit with one of a different type and size. The plaintiff’s proprietary lease provided that the defendant could not unreasonably withhold its consent to a proposed alteration “in the unit or building.” The board of directors denied the plaintiff’s requests. The plaintiff commenced this action, inter alia, to recover damages for breach of contract and for an injunction authorizing the proposed alterations to his unit. The Supreme Court granted the defendant’s motion for summary judgment dismissing the complaint by corrected order dated February 22, 2017. The plaintiff appeals. We affirm.“In the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board’s determination ‘[s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith’” (40 W. 67th St. v. Pullman, 100 NY2d 147, 153, quoting Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 NY2d 530, 538). However, where, as here, a proprietary lease provides that a governing board’s actions in giving consent to alterations to the “unit or building” are to be reviewed under a reasonableness standard, the board’s actions are not protected by the business judgment rule (see Rosenthal v. One Hudson Park, 269 AD2d 144, 145; Ludwig v. 25 Plaza Tenants Corp., 184 AD2d 623). A board’s actions are reasonable where they are “legitimately related to the welfare of the cooperative” (West v. 332 E. 84th Owners Corp., 68 AD3d 499, 500). Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that its withholding of consent for the plaintiff’s proposed alterations to the ceiling of his unit and the replacement of his window was reasonable (see West v. 332 E. 84th Owners Corp., 68 AD3d at 499-500; Fried v. 20 Sutton Place S., 2 AD3d 351; see also Seven Park Ave. Corp. v. Green, 277 AD2d 123, 123-124). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d 557, 562).The plaintiff’s remaining contention is without merit.Accordingly, we agree with the Supreme Court’s determination to grant the defendant’s motion for summary judgment dismissing the complaint.CHAMBERS, J.P., SGROI, MALTESE and CONNOLLY, JJ., concur.By Roman, J.P.; Cohen, Miller and Maltese, JJ.Sandra Sharief, ap, v. State of New York, et al., res — (Claim No. 124801)In a claim to recover damages for personal injuries, the claimant appeals from an order of the Court of Claims (Alan C. Marin, J.), dated October 25, 2016. The order denied the claimant’s motion pursuant to Court of Claims Act §10(6) for leave to serve and file a late claim, or pursuant to Court of Claims Act §10(8) to treat the notice of intention to file a claim as a claim, and granted the defendants’ cross motion to dismiss the claim.ORDERED that the order is affirmed, with costs.On October 7, 2013, the claimant, a student at Medgar Evers College, a college of the City University of New York (hereinafter CUNY), allegedly was injured when she tripped and fell on the college’s campus. In December 2013, the claimant served a notice of intention to file a claim naming CUNY, as well as the State of New York and Medgar Evers College (hereinafter collectively the defendants) as defendants. In August 2014, the claimant filed a verified claim against the defendants. However, the claim was not timely served.In September 2016, the claimant moved pursuant to Court of Claims Act §10(6) for leave to serve and file a late claim, or pursuant to Court of Claims Act §10(8) to treat the notice of intention to file a claim as a claim. The defendants cross-moved to dismiss the claim. In the order appealed from, the Court of Claims denied the claimant’s motion and granted the defendants’ cross motion. We affirm.Pursuant to Court of Claims Act §10(8)(a), “[a] claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim.” The notice of intention to file a claim must set forth “the time when and place where [the] claim arose, [and] the nature of same” (Court of Claims Act §11[b]; see Hargrove v. State of New York, 138 AD3d 777; Sinski v. State of New York, 265 AD2d 319). ”The purpose of the section 11(b) pleading requirements is to provide a sufficiently detailed description of the particulars of the claim to enable the State to investigate and promptly ascertain the existence and extent of its liability” (Sinski v. State of New York, 265 AD2d at 319). Here, the claimant’s notice of intention to file a claim failed to describe the location of the alleged accident with sufficient specificity to satisfy the requirements of Court of Claims Act §11(b) (see Triani v. State of New York, 44 AD3d 1032, 1033; Cobin v. State of New York, 234 AD2d 498, 499; see also Mitchell v. City of New York, 131 AD2d 313, 315).“Court of Claims Act §10(6) permits a court, in its discretion, upon consideration of the enumerated factors, to allow a claimant to file a late claim” (Tucholski v. State of New York, 122 AD3d 612, 612; see Kealos v. State of New York, 150 AD3d 1211, 1212). Here, the claimant failed to establish a reasonable excuse for her delay in filing the claim and failed to demonstrate that her claim was potentially meritorious (see Morris v. Doe, 104 AD3d 921). The claimant also failed to establish that the defendants had notice of the essential facts constituting the claim and an opportunity to investigate.The claimant’s remaining contention is without merit.Accordingly, we agree with the Court of Claims’ determinations to deny the claimant’s motion pursuant to Court of Claims Act §10(6) for leave to serve and file a late claim, or pursuant to Court of Claims Act §10(8) to treat the notice of intention to file a claim as a claim, and to grant the defendants’ cross motion to dismiss the claim.ROMAN, J.P., COHEN, MILLER and MALTESE, JJ., concur.By Leventhal, J.P.; Austin, Duffy and Barros, JJ.PEOPLE, etc., res, v. Raymond Minaya, ap — (Ind. Nos. 8015/13, 8397/13)Appeals by the defendant from two resentences of the Supreme Court, Kings County (Martin P. Murphy, J.), both imposed May 3, 2017, after remittitur from this Court for resentencing (see People v. Minaya, 147 AD3d 978), upon his convictions of robbery in the third degree under Indictment No. 8015/13, and attempted murder in the second degree under Indictment No. 8397/13, upon his pleas of guilty.ORDERED that the resentences are affirmed.“The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case” (People v. Hesterbey, 121 AD3d 1127, 1128 [internal quotation marks omitted]; see People v. Dhillon, 157 AD3d 900, 900-901; People v. Mullings, 83 AD3d 871, 872). Here, weighing all of the relevant circumstances, the Supreme Court providently exercised its discretion in denying the defendant youthful offender treatment (see CPL 720.20[1]; People v. Dawkins, 146 AD3d 898, 899; People v. Green, 110 AD3d 825, 826).LEVENTHAL, J.P., AUSTIN, DUFFY and BARROS, JJ., concur.By Chambers, J.P.; Sgroi, Maltese and Connolly, JJ.Juliana U. Szablyar, ap, v. Gheorghe J. Zuralau, res — (Index No. 3456/12)In an action for a divorce and ancillary relief, the plaintiff appeals from a judgment of divorce of the Supreme Court, Queens County (Anna Culley, J.), entered April 5, 2016. The judgment, insofar as appealed from, upon a decision of the same court dated February 3, 2016, made after a nonjury trial, granted the parties a divorce by reason of the irretrievable breakdown of their marriage for a period of at least six months, awarded the plaintiff the sum of only $249.18 in equitable distribution of marital property, and awarded the plaintiff the sum of only $20,000 for attorney’s fees and legal expenses.ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements.The parties were married on January 14, 2009. The plaintiff commenced this action against the defendant for a divorce and ancillary relief on February 16, 2012. The plaintiff’s grounds for divorce as stated in the complaint were cruel and inhuman treatment pursuant to Domestic Relations Law §170(1) and the irretrievable breakdown of the parties’ marriage for a period of at least six months, pursuant to Domestic Relations Law §170(7). Pursuant to a “Preliminary Conference Stipulation/Order” dated October 16, 2012, the parties stipulated that the ground for divorce would be an irretrievable breakdown of the marriage for a period of at least six months. During an inquest on the issue of grounds for divorce, the trial court ruled without objection that it would grant a divorce on this ground. A trial on the remaining issues, including the equitable distribution of marital property, followed. In a decision after trial dated February 3, 2016, the court, inter alia, granted a divorce by reason of an irretrievable breakdown of the marriage for a period of at least six months, and, upon finding that the only asset subject to equitable distribution was a joint bank account, awarded the plaintiff half of its proceeds, in the sum of $249.18. The trial court also awarded the plaintiff $20,000 in attorney’s fees and legal expenses. The plaintiff appeals, pro-se, from the judgment of divorce entered April 5, 2016, upon the trial court’s decision.The plaintiff contends that the trial court erred by not granting her a divorce on the ground of cruel and inhuman treatment. However, the plaintiff effectively waived any objection that could be made on this appeal as to the grounds upon which the trial court granted a divorce. At the inquest, she raised no objection to the stated ground to which she and the defendant had already stipulated in the Preliminary Conference Stipulation/Order (see generally Minkow v. Metelka, 46 AD3d 864).Contrary to the plaintiff’s further contention, we discern no basis to disturb the trial court’s finding that a motor vehicle and the contents of two safe deposit boxes constituted the defendant’s separate property (see Domestic Relations Law §236[B][1][d]; see generally Ceravolo v. DeSantis, 125 AD3d 113; Hymowitz v. Hymowitz, 119 AD3d 736).The plaintiff’s remaining contentions are without merit.CHAMBERS, J.P., SGROI, MALTESE and CONNOLLY, JJ., concur.By Austin, J.P.; Roman, Cohen and Barros, JJ.Analiese Home Corp., res, v. Joseph Mannari, et al., appellants def — (Index No. 704401/14)In an action, inter alia, to recover damages for breach of contract, the defendants Joseph Mannari and Mannpower Contracting Corp. appeal from an order of the Supreme Court, Queens County (Dennis J. Butler, J.), dated February 29, 2016. The order denied the motion of those defendants for leave to renew their prior motion for summary judgment dismissing the complaint insofar as asserted against them and their opposition to the plaintiff’s cross motion for leave to amend the complaint.ORDERED that the order is affirmed, with costs.“A motion for leave to renew must be based upon new facts, not offered on the original application, that would change the prior determination” (Rowe v. NYCPD, 85 AD3d 1001, 1003 [internal quotation marks omitted]). ”Leave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion” (Matter of Orange & Rockland Util. v. Assessor of Town of Haverstraw, 304 AD2d 668, 669 [internal quotation marks omitted]; see City of New York v. St. Paul Fire & Mar. Ins. Co., 21 AD3d 982).In support of their motion for leave to renew, the defendants Joseph Mannari and Mannpower Contracting Corp. (hereinafter together the defendants) failed to submit any new information that would have changed the prior determination. The material submitted in support of the motion was merely cumulative with respect to the factual material submitted in connection with the original motion and cross motion (see Yerushalmi v. Yerushalmi, 82 AD3d 1217; City of New York v. St. Paul Fire & Mar. Ins. Co., 21 AD3d at 983). Accordingly, we agree with the Supreme Court’s determination to deny the defendants’ motion for leave to renew.AUSTIN, J.P., ROMAN, COHEN and BARROS, JJ., concur.By Scheinkman, P.J.; Dillon, Miller, Hinds-Radix and Iannacci, JJ.PEOPLE, etc., res, v. Rashan Davis, ap — (Ind. No. 1348/15)Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Dorothy Chin-Brandt, J.), imposed June 30, 2015, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The defendant entered into a plea agreement pursuant to which he pleaded guilty to one count of attempted assault in the second degree (see Penal Law §§110.00, 120.05[6]). The defendant received an indeterminate sentence of two to four years’ imprisonment in accordance with the plea agreement. On appeal, the defendant contends that his sentence of imprisonment was excessive. The People contend that the defendant’s argument is precluded by the defendant’s waiver of his right to appeal and that, in any event, the defendant’s sentence of incarceration was not excessive.A defendant who has validly waived the right to appeal cannot invoke this Court’s interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez, 6 NY3d 248, 255). Here, however, this Court is not precluded from exercising its interest of justice jurisdiction because the defendant’s purported waiver of his right to appeal was invalid.A waiver of the right to appeal “is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v. Lopez, id. at        256; see People v. Bradshaw, 18 NY3d 257, 264; People v. Brown, 122 AD3d 133, 136). Although the Court of Appeals has “repeatedly observed that there is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights” (People v. Johnson, 14 NY3d 483, 486), “[t]he best way to ensure that the record reflects that the right is known and intentionally relinquished by the defendant is to fully explain to the defendant, on the record, the nature of the right to appeal and the consequences of waiving it” (People v. Brown, 122 AD3d at 142; see People v. Rocchino, 153 AD3d 1284; People v. Blackwood, 148 AD3d 716, 716).“[A] thorough explanation should include an advisement that, while a defendant ordinarily retains the right to appeal even after he or she pleads guilty, the defendant is being asked, as a condition of the plea agreement, to waive that right” (People v. Brown, 122 AD3d at 144; see People v. Medina, 161 AD3d 778). ”[A] defendant should [also]… receive an explanation of the nature of the right to appeal, which essentially advises that this right entails the opportunity to argue, before a higher court, any issues pertaining to the defendant’s conviction and sentence and to have that higher court decide whether the conviction or sentence should be set aside based upon any of those issues… [and] that appellate counsel will be appointed in the event that he or she were indigent” (People v. Brown, 122 AD3d at 144). Finally, “trial courts should then explain the consequences of waiving the right to appeal, i.e., that the conviction and sentence will not receive any further review, and shall be final” (id.).Here, the Supreme Court’s terse oral colloquy regarding the waiver of the right to appeal was insufficient, by itself, to demonstrate that the defendant understood the nature of the right to appeal (see People v. Cortez, 160 AD3d 893; People v. Laboy, 153 AD3d 1363; People v. Herring, 150 AD3d 1148). Although the record reflects that the defendant signed a more comprehensive written waiver and indicated that he “was aware of its contents” (People v. Brown, 122 AD3d at 139 [internal quotation marks omitted]; see People v. Bryant, 28 NY3d 1094, 1096), the defendant’s subsequent statements to the court during the plea proceeding revealed that he did not, in fact, understand the appeal waiver (cf. People v. Foxworth, 161 AD3d 1103; People v. Valerio, 154 AD3d 887; People v. Calabrese, 153 AD3d 1268; People v. Oliveri, 151 AD3d 754; People v. English, 142 AD3d 1103). This confusion was consistent with the record evidence of the defendant’s mental health issues (cf. People v. Walker, 151 AD3d 1730, 1731). Contrary to the People’s contention, the court did not respond in a meaningful way to the defendant’s confusion, as the court merely confirmed again that the defendant had signed the written waiver before the court addressed other topics (cf. People v. Leonard, 25 AD3d 925, 925-926). Under all of the circumstances, including the deficient oral colloquy, the defendant’s demonstrated history of recent mental health issues, the confusion expressed by the defendant on the record during the plea proceeding, and the court’s failure to meaningfully inquire into the defendant’s confusion, we conclude that the record of the plea proceeding does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Brown, 122 AD3d 133; see generally People v. Bryant, 28 NY3d at 1096; People v. Sanders, 25 NY3d 337, 340-341; People v. Bradshaw, 18 NY3d at 264-267; People v. Ramos, 7 NY3d 737, 738; People v. Lopez, 6 NY3d at 255; People v. Hidalgo, 91 NY2d 733, 735).Nevertheless, contrary to the defendant’s contention, the sentence of imprisonment imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., DILLON, MILLER, HINDS-RADIX and IANNACCI, JJ., concur.By Scheinkman, P.J.; Roman, Cohen, Duffy and Lasalle, JJ.PEOPLE, etc., res, v. Jonathan Ayala, ap — (Ind. No. 1855/14)Paul Skip Laisure, New York, NY (Hannah Zhao of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce of counsel; Ruby D. Andrade on the memorandum), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Betty J. Williams, J.), imposed April 15, 2016, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The defendant’s purported waiver of his right to appeal was invalid (see People v. Chambers, 142 AD3d 672). The Supreme Court failed to provide an adequate explanation of the right to appeal and, while the defendant signed a written waiver of appeal, the court failed to obtain confirmation that the defendant had read the document before signing it and that he understood it. The written waiver was not signed by counsel and the court failed to confirm that counsel had advised the defendant as to the right to appeal and the legal effect of the written waiver. Accordingly, the defendant’s alleged waiver does not preclude review of his excessive sentence claim. However, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., ROMAN, COHEN, DUFFY and LASALLE, JJ., concur.By Mastro, J.P.; Balkin, Hinds-Radix and Iannacci, JJ.Myung Hwa Jang, res, v. George Mang, etc., et al., def, Yuling Deng, etc., ap — (Index No. 8854/13)In an action, inter alia, to recover damages for medical malpractice, the defendant Yuling Deng appeals from an order of the Supreme Court, Queens County (Peter J. O’Donoghue, J.), dated March 8, 2016. The order granted the plaintiff’s motion pursuant to CPLR 3025 and 1003 for leave to amend the complaint to add Yuling Deng as a defendant in the action.ORDERED that the order is affirmed, with costs.The plaintiff commenced this action against, among others, George Mang, Weining Liang, and W. Liang’s Medical Office, P.C., its agents, servants, and/or employees (hereinafter the Liang defendants), inter alia, alleging medical malpractice related to medical treatment she received on February 26, 2013. On or about January 18, 2016, the plaintiff moved pursuant to CPLR 3025 and 1003 for leave amend the complaint to add Yuling Deng, a physician assistant employed by Liang and his medical practice, as a defendant in the action. The Supreme Court granted the plaintiff’s motion, and Deng appeals.“Parties may be added at any stage of the action by leave of court” (CPLR 1003). ”A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances” (CPLR 3025[b]). In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading “are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” (Lucido v. Mancuso, 49 AD3d 220, 222; see Jeffrey Gardens Apt. Corp. v. LH Mgt., Inc., 157 AD3d 941, 942; Emigrant Sav. Bank v. Walters, 155 AD3d 829, 830).The relation-back doctrine allows a claim asserted against a defendant in an amended complaint to relate back to claims previously asserted against a codefendant for statute of limitations purposes where: (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or her as well (see Buran v. Coupal, 87 NY2d 173, 178-182; Eriksen v. County of Suffolk, 154 AD3d 721, 722; Castagna v. Almaghrabi, 117 AD3d 666, 667; see also CPLR 203[b], [c]).The Supreme Court providently exercised its discretion in granting the plaintiff’s motion pursuant to CPLR 3025 and 1003 for leave to amend the complaint, as Deng suffered no prejudice or surprise resulting directly from the delay in seeking leave and the proposed amendment was not “palpably insufficient or patently devoid of merit” (Lucido v. Mancuso, 49 AD3d at 222; see Jeffrey Gardens Apt. Corp. v. LH Mgt., Inc., 157 AD3d at 942; Emigrant Sav. Bank v. Walters, 155 AD3d at 830). Although the applicable statute of limitations expired prior to the filing of the plaintiff’s motion (see CPLR 214-a), the relation-back doctrine allowed the claim asserted against Deng to relate back to the claims previously asserted against the Liang defendants. The claim against Deng arose out of the same transaction or occurrence as the claims asserted against the Liang defendants, to wit, the plaintiff’s treatment in Liang’s medical office on February 26, 2013. Deng was united in interest with the Liang defendants, as she was an employee of Liang and his medical practice. Under the circumstances presented, Deng knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been commenced against her as well (see Buran v. Coupal, 87 NY2d at 178-182; Erikson v. County of Suffolk, 154 AD3d at 722-723; cf. Stevens v. Winthrop S. Nassau Univ. Health Sys., Inc., 89 AD3d 835, 836; Karagiannis v. North Shore Long Is. Jewish Health Sys., Inc., 80 AD3d 569, 569-570).MASTRO, J.P., BALKIN, HINDS-RADIX and IANNACCI, JJ., concur.By Leventhal, J.P.; Austin, Duffy and Barros, JJ.PEOPLE, etc., ap, v. Walter Booker, res — (Ind. No. 16-00186)Michael H. Sussman, Goshen, NY, for respondent.Appeal by the People, as limited by their brief, from so much of an order of the County Court, Rockland County (David S. Zuckerman, J.), entered December 22, 2016, as granted that branch of the defendant’s motion which was to dismiss counts 4 through 15 of the indictment on the ground that the evidence presented to the grand jury was legally insufficient.ORDERED that the order is reversed insofar as appealed from, on the law, that branch of the defendant’s motion which was to dismiss counts 4 through 6 and 10 through 15 of the indictment is denied, and that branch of the motion which was to dismiss counts 7 through 9 of the indictment is granted only to the extent of reducing those counts from falsifying business records in the first degree to falsifying business records in the second degree, and that branch of the motion is otherwise denied; counts 4 through 6, 7 through 9 as so reduced, and 10 through 15 of the indictment are reinstated, and the matter is remitted to the County Court, Rockland County, for further proceedings on the indictment.

 
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