Appellate Division, Second Department: October 27, 2023

Handdown List released on: October 25, 2023 By Barros, J.P.; Chambers, Warhit, Taylor, JJ. WELLS FARGO BANK, N.A., ETC., res, v. ATISHA ROBINSON-JOHN, ETC., ET AL., def; WHITEHALL ESTATES, LLC, ETC., nonparty-app — (Index No. 621206/17) Paula A. Miller, P.C., Smithtown, NY, for nonparty-appellant. Stradley Ronon Stevens & Young, LLP, New York, NY (Jacquelie Aiello of counsel), for respondent. In an action to foreclose a mortgage, nonparty Whitehall Estates, LLC, as successor in interest to the defendant Atisha Robinson-John, appeals from an order of the Supreme Court, Suffolk County (Michael A. Gajdos, Jr.), dated December 4, 2020. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for leave to enter a default judgment against the defendant Atisha Robinson-John and for an order of reference, and denied those branches of the cross-motion of nonparty Whitehall Estates, LLC, as successor in interest to the defendant Atisha Robinson-John, which were pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the defendant Atisha Robinson-John as abandoned, and pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against the defendant Atisha Robinson-John as time-barred. ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof granting those branches of the plaintiff’s motion which were for leave to enter a default judgment against the defendant Atisha Robinson-John and for an order of reference, and substituting therefor provisions denying those branches of the motion, and (2) by deleting the provision thereof denying that branch of the cross-motion of nonparty Whitehall Estates, LLC, as successor in interest to the defendant Atisha Robinson-John, which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the defendant Atisha Robinson-John as abandoned, and substituting therefor a provision granting that branch of the cross-motion; as so modified, the order is affirmed insofar as appealed from, with costs to nonparty Whitehall Estates, LLC, as successor in interest to the defendant Atisha Robinson-John. In 2005, the defendant Atisha Robinson-John (hereinafter the defendant) executed a note in the principal amount of $268,000 which was secured by a mortgage on certain real property located in Central Islip (hereinafter the subject property). In 2016, the defendant executed a loan modification agreement, pursuant to which the defendant reaffirmed the subject mortgage debt, and agreed to a new principal balance and monthly payment amount, among other things. The plaintiff commenced this action to foreclose the mortgage against, among others, the defendant on October 25, 2017, by filing a summons, complaint, and a notice of pendency. The defendant was personally served with process, but did not answer or appear in the action. Insofar as relevant here, the Board of Directors of Park Row Homeowners Association, Inc. (hereinafter the Board), commenced a separate action against the defendant to foreclose a lien filed against the subject property. That action resulted in the issuance of a judgment of foreclosure and sale. Whitehall Estates, LLC (hereinafter Whitehall), was the successful bidder at the foreclosure sale held pursuant to the judgment of foreclosure and sale, and the subject property was conveyed to Whitehall by a referee’s deed dated June 29, 2018. In March 2019, the plaintiff moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference. Pursuant to CPLR 1018, Whitehall, as successor in interest to the defendant, opposed the plaintiff’s motion and cross-moved, among other things, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the defendant as abandoned and pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against the defendant as time-barred. In an order dated December 10, 2020, the Supreme Court granted the subject branches of the plaintiff’s motion, and denied the subject branches of Whitehall’s cross-motion. Whitehall appeals. Pursuant to CPLR 1018, “[u]pon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action.” Here, even in the absence of formal substitution, Whitehall, as the defendant’s successor in interest to the property, was entitled to continue to defend the action in the defendant’s name (see id.; Wells Fargo Bank, NA v. McKenzie, 183 AD3d 574, 574-576; B & H Florida Notes LLC v. Ashkenazi, 149 AD3d 401, 401-402; see also Wells Fargo Bank, N.A. v. Eitani, 148 AD3d 193, 199; Brighton BK, LLC v. Kurbatsky, 131 AD3d 1000, 1001). Contrary to the Supreme Court’s determination, Whitehall, as successor in interest to the defendant, has standing to move pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the defendant as abandoned (see Wells Fargo Bank, NA v. McKenzie, 183 AD3d at 575-576). In the interest of judicial economy, it is appropriate for this Court to address that branch of Whitehall’s cross-motion on the merits, rather than remitting the matter to the Supreme Court to do so (see id.; Deutsche Bank Natl. Trust Co. v. Gambino, 153 AD3d 1232, 1234). 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.” Here, the defendant was personally served with process in November 2017, and defaulted by failing to serve an answer or appear in the action (see id. §3012[a]). Thereafter, the plaintiff did not seek leave to enter a default judgment against the defendant until March 2019, when it moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference. As the plaintiff failed to take proceedings for the entry of judgment within one year after the defendant’s default, to avoid dismissal of the complaint insofar as asserted against the defendant, “the plaintiff was required to make a showing of sufficient cause, which required that it demonstrate that it had a reasonable excuse for its delay in taking proceedings for the entry of a judgment and that it had a potentially meritorious action” (Wells Fargo Bank, NA v. McKenzie, 183 AD3d at 576; see CPLR 3215[c]; Private Capital Group, LLC v. Hosseinipour, 170 AD3d 909, 911; HSBC Bank USA, N.A. v. Grella, 145 AD3d 669, 671). The plaintiff proffered that its reasonable excuse for its delay in taking proceedings for the entry of a judgment against the defendant included a “loss mitigation hold on or about December 28, 2017,” and its need to gather sufficient proof to establish its entitlement to judgment, among other things. “Contrary to the plaintiff’s contention, the purported submission of a completed loss mitigation application by the defendant…did not automatically toll the plaintiff’s deadline under CPLR 3215(c)” during the time when the plaintiff was reviewing the application (U.S. Bank N.A. v. Penate, 176 AD3d 758, 760). Moreover, unsubstantiated and conclusory claims of loss mitigation from the plaintiff’s counsel do not amount to a reasonable excuse (see US Bank, N.A. v. Onuoha, 162 AD3d 1094, 1096). “Since the plaintiff failed to proffer a reasonable excuse for its delay, this Court need not consider whether the plaintiff had a potentially meritorious cause of action” (U.S. Bank N.A. v. Penate, 176 AD3d at 761; see Federal Natl. Mtge. Assn. v. Dauphin, 195 AD3d 696, 698). Thus, as the plaintiff failed to show sufficient cause why the complaint should not be dismissed insofar as asserted against the defendant, the Supreme Court should have denied those branches of the plaintiff’s motion which were for leave to enter a default judgment against the defendant and for an order of reference, and should have granted that branch of Whitehall’s cross-motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the defendant as abandoned (see Wells Fargo Bank, NA v. McKenzie, 183 AD3d at 576; Private Capital Group, LLC v. Hosseinipour, 170 AD3d at 911; US Bank, N.A. v. Onuoha, 162 AD3d at 1096). However, as the plaintiff’s submissions of the loan modification agreement and evidence of the defendant’s subsequent payments raised a question of fact as to whether the statute of limitations was revived or extended (see Deutsche Bank Natl. Trust Co. v. MacPherson, 200 AD3d 647; HSBC Bank USA, N.A. v. Macaulay, 187 AD3d 721, 722; U.S. Bank N.A. v. Balderston, 163 AD3d 1482, 1484; cf. General Obligations Law §§17-105[3][a][2]; 17-107[2][a][2]), the Supreme Court properly denied that branch of Whitehall’s cross-motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against the defendant as time-barred. The parties’ remaining contentions are either without merit or not properly before this Court. BARROS, J.P., CHAMBERS, WARHIT and TAYLOR, JJ., concur. By Duffy, J.P.; Ford, Dowling, Taylor, JJ. STEFANY SAFIER, plf, v. WAKEFERN FOOD CORP., ET AL., def third-party plf-res, ADVANCE BUILDING SOLUTIONS, INC., ET AL., def third-party def-app (AND OTHER THIRD-PARTY ACTIONS) — (Index No. 52693/18) Thomas K. Moore (Eric D. Feldman, Melville, NY [David R. Holland], of counsel), for defendants third-party defendants-appellants. Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Krystina Maola of counsel), for defendants third-party plaintiffs-respondents. In an action to recover damages for personal injuries, and a third-party action, inter alia, for indemnification and/or contribution, the defendants third-party defendants, Advance Building Solutions, Inc., and Corporate Building Services, Inc., appeal from an order of the Supreme Court, Westchester County (Terry Jane Ruderman, J.), dated October 16, 2020. The order, insofar as appealed from, denied that branch of the motion of the defendants third-party defendants, Advance Building Solutions, Inc., and Corporate Building Services, Inc., which was for summary judgment dismissing the third-party complaint asserted against them. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of defendants third-party defendants, Advance Building Solutions, Inc., and Corporate Building Services, Inc., which was for summary judgment dismissing the third-party complaint is granted. The plaintiff commenced this personal injury action against ShopRite Supermarkets, Inc. (hereinafter ShopRite), and its owner, Wakefern Food Corp. (hereinafter Wakefern), as well as Advance Building Solutions, Inc. (hereinafter Advance), a floor cleaning contractor, and Corporate Building Services, Inc. (hereinafter Corporate), a related company. ShopRite and Wakefern thereafter commenced a third-party action seeking, inter alia, contribution and/or indemnification from Advance and Corporate. Advance and Corporate commenced a second third-party action seeking contribution and/or indemnification from Floor Maintenance Professionals, LLC (hereinafter Floor Maintenance), a floor cleaning subcontractor, and ShopRite and Wakefern commenced a third third-party action against Floor Maintenance. Advance and Corporate moved, inter alia, for summary judgment dismissing the third-party complaint asserted against them. In an order dated October 16, 2020, the Supreme Court, among other things, denied that branch of the motion. Advance and Corporate appeal. Advance and Corporate established their prima facie entitlement to judgment as a matter of law dismissing the cause of action of ShopRite and Wakefern seeking contractual indemnification against them. “When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances” (Hooper Assoc. v. AGS Computers, 74 NY2d 487, 491-492 [citations omitted]; see George v. Marshalls of MA, Inc., 61 AD3d 925). Here, a document entitled “Bid Proposal” is the only written agreement between the parties regarding the subject floor cleaning work. The Bid Proposal contains no language regarding indemnification of ShopRite or Wakefern by Advance or Corporate (see Vigliarolo v. Sea Crest Constr. Corp., 16 AD3d 409). When an agreement contains no express indemnification provisions, and an indemnification clause cannot be implied from the language of the agreement, a cause of action for contractual indemnification should be dismissed (see Schultz v. Bridgeport & Port Jefferson Steamboat Co., 68 AD3d 970, 972). Advance and Corporate therefore established their prima facie entitlement to judgment as a matter of law dismissing the contractual indemnification cause of action brought by ShopRite and Wakefern against them (see Eldoh v. Astoria Generating Co., LP, 57 AD3d 603). In response to this showing, ShopRite and Wakefern failed to raise a triable issue of fact. As the Bid Proposal furthermore contains no requirement for Advance or Corporate to procure insurance, the cause of action of ShopRite and Wakefern alleging that Advance and Corporate breached the parties’ contract in failing to procure insurance should also be dismissed (see Richards v. Passarelli, 77 AD3d 905). Advance and Corporate also established their prima facie entitlement to judgment as a matter of law dismissing the cause of action of ShopRite and Wakefern seeking common-law indemnification against them. “Implied indemnity is a restitution concept which permits shifting the loss because to fail to do so would result in the unjust enrichment of one party at the expense of the other. Generally, it is available in favor of one who is held responsible solely by operation of law because of his relation to the actual wrongdoer” (Mas v. Two Bridges Assoc., 75 NY2d 680, 690 [citations omitted]). Common-law indemnity “imposes indemnification obligations upon those actively at fault in bringing about the injury, and thus reflects an inherent fairness as to which party should be held liable for indemnity” (McCarthy v. Turner Const., Inc., 17 NY3d 369, 375). Here, Advance and Corporate established that they were not actively negligent (see George v. Marshalls of MA, Inc., 61 AD3d 925). Furthermore, while Advance and Corporate had the authority under a subcontractor agreement/contract to supervise the work of Floor Maintenance, they did not actually supervise the work. Mere authority to supervise a subcontractor is not sufficient to warrant common-law indemnification, as indemnification may only be imposed against a contractor who exercises actual supervision (see McCarthy v. Turner Constr., Inc., 17 NY3d at 378). As ShopRite and Wakefern raised no triable issue of fact as to Advance and Corporate’s culpability in opposition to Advance and Corporate’s prima facie showing, the common-law indemnification claim should also be dismissed. Advance and Corporate further established their prima facie entitlement to judgment as a matter of law dismissing the cause of action of ShopRite and Wakefern seeking common-law contribution. To sustain a cause of action for contribution, ShopRite and Wakefern would have to show that Advance and Corporate owed them a duty of reasonable care outside their contractual obligations, or owed a duty to the plaintiff and that a breach of that duty contributed to the alleged injuries (see Castillo v. Port Auth. of N.Y. & N.J., 159 AD3d 792, 795). Here, there is no allegation that Advance or Corporate owed ShopRite or Wakefern a duty outside their contractual obligations. Advance and Corporate also established that they were not negligent in that neither of them breached a duty to the plaintiff, who is not a party to the Bid Proposal or the subcontractor agreement/contract (see Espinal v. Melville Snow Contrs., 98 NY2d 136, 140). Where, as here, a contractor has no duty to the plaintiff, a cause of action for common-law contribution should be dismissed (see Patterson v. New York City Tr. Auth., 5 AD3d 454). In opposition, ShopRite and Wakefern failed to raise a triable issue of fact. DUFFY, J.P., FORD, DOWLING and TAYLOR, JJ., concur. By Barros, J.P.; Christopher, Ford, Warhit, JJ. ARCHIVAL, INC., res, v. 177 REALTY CORP., ET AL., app — (Index No. 505938/21) Menicucci Villa Cilmi, PLLC, Staten Island, NY (Geoffrey Bowser of counsel), appellant pro se and for appellants 177 Realty Corp., Mohammed Elayyan, Mohammed Tina, Tina Mohammed, Fouad Munzer Elayyan, and Michael Menicucci. Law Office of Gregory P. Mouton, Jr., LLC, New York, NY, for respondent. In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated October 5, 2021. The order, insofar as appealed from, denied that branch of the motion of the defendants Mohammed Elayyan, Mohammed Tina, Tina Mohammed, Fouad Munzer Elayyan, and Michael Menicucci which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against the defendants Mohammed Elayyan, Mohammed Tina, Tina Mohammed, and Fouad Munzer Elayyan. ORDERED that the appeal by the defendants 177 Realty Corp. and Menicucci Villa Cilmi, PLLC, is dismissed, as those defendants are not aggrieved by the portion of the order appealed from (see CPLR 5511; Mixon v. TBV, Inc., 76 AD3d 144, 156-157); and it is further, ORDERED that the order is affirmed insofar as appealed from by the defendants Mohammed Elayyan, Mohammed Tina, Tina Mohammed, Fouad Munzer Elayyan, and Michael Menicucci; and it is further, ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendants Mohammed Elayyan, Mohammed Tina, Tina Mohammed, Fouad Munzer Elayyan, and Michael Menicucci. On January 13, 2015, the plaintiff, Archival, Inc., entered into a contract of sale with the defendant 177 Realty Corp. to purchase real property located in Brooklyn. On March 12, 2021, the plaintiff commenced the instant action against the defendant 177 Realty Corp., as well as its members, owners, and/or shareholders, Mohammad Elayyan, Mohammed Tina, Tina Mohammed, and Fouad Munzer Elayyan (hereinafter collectively the 177 Realty Owners), the defendant Menicucci Villa Cilmi, PLLC, and the defendant Michael Menicucci, to recover damages for, inter alia, breach of contract, unjust enrichment, breach of the implied covenant of good faith and fair dealing, and fraudulent inducement. The 177 Realty Owners and Menicucci moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. Thereafter, the plaintiff filed an amended complaint as of right alleging, among other things, that the 177 Realty Owners abused the privilege of doing business in the corporate form and sought to hold the 177 Realty Owners personally liable for the wrongdoing of the corporation under the doctrine of piercing the corporate veil. In an order dated October 5, 2021, the Supreme Court, inter alia, denied that branch of the motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against the 177 Realty Owners. This appeal ensued. “On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences” (Rosenshein v. Kushner, 212 AD3d 744, 744; see Leon v. Martinez, 84 NY2d 83, 88). “To survive a motion to dismiss the complaint, a party seeking to pierce the corporate veil must allege facts that, if proved, establish that the party against whom the doctrine is asserted (1) exercised complete domination over the corporation with respect to the transaction at issue, and (2) through such domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff such that a court in equity will intervene” (Rosenshein v. Kushner, 212 AD3d at 744-745; see East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 16 NY3d 775, 776). “Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate or LLC form include the failure to adhere to [corporate or] LLC formalities, inadequate capitalization, commingling of assets, and the personal use of [corporate or] LLC funds” (Grammas v. Lockwood Assoc., LLC, 95 AD3d 1073, 1075; see Rosenshein v. Kushner, 212 AD3d at 745). Here, the plaintiff adequately pleaded allegations that the 177 Realty Owners dominated 177 Realty Corp. and that the 177 Realty Owners engaged in acts amounting to an abuse of the corporate form to perpetrate a wrong or injustice against the plaintiff (see Rosenshein v. Kushner, 212 AD3d at 745; Olivieri Constr. Corp. v. WN Weaver St., LLC, 144 AD3d 765, 767; Grammas v. Lockwood Assoc., LLC, 95 AD3d at 1075). In this regard, the plaintiff alleged that the 177 Realty Owners commingled the assets of the corporation with their own personal assets and failed to adhere to corporate formalities. In addition, the plaintiff alleged that the 177 Realty Owners never adequately capitalized the corporation. Further, the plaintiff alleged that following the sale of the subject property, the 177 Realty Owners withdrew all the proceeds from the sale and disbursed those proceeds to themselves, leaving the corporation assetless and insolvent. According to the plaintiff, the 177 Realty Owners pilfered the assets and funds belonging to the corporation, rendering the corporation, in effect, judgment proof. Accordingly, the Supreme Court properly denied that branch of the motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against the 177 Realty Owners. BARROS, J.P., CHRISTOPHER, FORD and WARHIT, JJ., concur. By Dillon, J.P.; Iannacci, Miller, Taylor, JJ. WELLS FARGO BANK, NA, res, v. CARLOS VILLANUEVA, app, ET AL., def — (Index No. 511340/14) Lawrence Spivak, Jamaica, NY, for appellant. Wood Oviatt Gilman, LLP (Reed Smith LLP, New York, NY [Andrew B. Messite and Michael V. Margarella], of counsel), for respondent. In an action to foreclose a mortgage, the defendant Carlos Villanueva appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated March 4, 2020. The order denied that defendant’s motion pursuant to CPLR 5015(a)(1) to vacate, inter alia, an order of the same court dated March 13, 2018, granting the plaintiff’s unopposed motion, among other things, for summary judgment on the complaint insofar as asserted against that defendant. ORDERED that the order is affirmed, with costs. A party seeking to vacate an order entered upon its default in opposing a motion must demonstrate, through the submission of supporting facts in evidentiary form, both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; U.S. Bank, N.A. v. Imtiaz, 198 AD3d 1005, 1007). “A motion to vacate a default is addressed to the sound discretion of the court” (Vujanic v. Petrovic, 103 AD3d 791, 792). Here, while the defendant demonstrated a reasonable excuse for his default, he failed to demonstrate a potentially meritorious opposition. The parties’ remaining contentions are without merit. DILLON, J.P., IANNACCI, MILLER and TAYLOR, JJ., concur. By Barros, J.P.; Maltese, Dowling, Voutsinas, JJ. HARWAY TERRACE, INC., ET AL., app, v. NINA SHLIVKO, res, ET AL., def — (Index No. 504029/18) Baker Greenspan & Bernstein, Bellmore, NY (Evan E. Richards of counsel), for appellants. Shlivko Giancola LLC, New York, NY (Kenneth M. Giancola and Sam J. Shlivko of counsel), for respondent. In an action, inter alia, to recover damages for defamation, the plaintiffs appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated May 10, 2021. The order, insofar as appealed from, denied that branch of the plaintiffs’ motion which was for leave to renew their opposition to the prior motion of the defendant Nina Shlivko, inter alia, to quash certain subpoenas and the plaintiff’s prior cross-motion to compel certain discovery, which had been determined in an order of the same court dated March 30, 2021. ORDERED that the order dated May 10, 2021, is affirmed insofar as appealed from, with costs. A motion for leave to renew “must be based upon ‘new facts not offered on the prior motion,’ or a change in the law, that would change the prior determination” (Wells Fargo Del. Trust Co., N.A. v. De Los Santos, 186 AD3d 900, 901, quoting CPLR 2221[e][2]; see MTGLQ Invs., L.P. v. Rebecca, 208 AD3d 869, 871). “Although the requirement that a motion for renewal must be based on new facts is a flexible one…, a motion to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation, and the Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion” (Jovanovic v. Jovanovic, 96 AD3d 1019, 1020 [citations omitted]; see Seegopaul v. MTA Bus Co., 210 AD3d 715, 716; Mooklal v. Clermont Farm Corp., 187 AD3d 740, 741). Moreover, “‘[l]eave 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’” (Deutsche Bank Natl. Trust Co. v. Galloway, 214 AD3d 625, 625, quoting Ferraro Foods, Inc. v. Guyon, Inc., 165 AD3d 628, 630). Here, the plaintiffs failed to present new facts or demonstrate a change in the law that would change the prior determination (see Board of Mgrs. of Van Wyck Glen Condominium v. Van Wyck at Merritt Park Homeowners Assn., Inc., 211 AD3d 790, 791; MTGLQ Invs., L.P. v. Rebecca, 208 AD3d at 871). Furthermore, the plaintiffs failed to offer a reasonable justification for the failure to present the alleged new facts on the underlying motion and cross-motion (see Seegopaul v. MTA Bus Co., 210 AD3d at 716). Accordingly, the Supreme Court properly denied that branch of the plaintiffs’ motion which was for leave to renew. The plaintiffs’ remaining contentions need not be reached in light of our determination. BARROS, J.P., MALTESE, DOWLING and VOUTSINAS, JJ., concur. By Iannacci, J.P.; Genovesi, Ford, Wan, JJ. JOHN S. DESIDERIO, app, v. ROBERT H. WILGOSZ, ETC., ET AL., res, ET AL., def — (Index No. 615205/19) Law Office of John S. Desiderio, P.C., Garden City Park, NY, for appellant. Stephen C. Giametta & Associates, P.C., Bohemia, NY, for respondents. In an action, inter alia, to recover damages for breach of contract and unjust enrichment, the plaintiff appeals from an order of the Supreme Court, Nassau County (David P. Sullivan, J.), entered May 14, 2021. The order (1) granted the defendants’ motion to vacate a clerk’s judgment entered July 13, 2020, which, upon an order of the same court (Jack L. Libert, J.) entered June 2, 2020, granting the plaintiff’s motion for leave to enter a default judgment against the defendants, was in favor of the plaintiff and against the defendants in the total sum of $93,693.57, (2) denied the plaintiff’s motion pursuant to CPLR article 52 to compel the turnover of certain funds, (3) denied the plaintiff’s motion to compel the defendant Robert H. Wilgosz to comply with a subpoena and for sanctions against that defendant, and (4) denied the plaintiff’s motion to hold the defendant Robert H. Wilgosz in contempt. ORDERED that the order entered May 14, 2021, is affirmed, with costs. The plaintiff commenced this action against the defendant Robert H. Wilgosz and several businesses allegedly owned and operated by Wilgosz, alleging that the plaintiff performed work for which he had not been paid. Upon the defendants’ failure to timely answer the complaint, the plaintiff successfully moved for leave to enter a default judgment against them. A clerk’s judgment was entered in favor of the plaintiff and against the defendants on July 13, 2020. Thereafter, the plaintiff filed separate motions seeking to compel the turnover of certain funds, to compel Wilgosz to comply with a subpoena and for sanctions against Wilgosz, to hold Wilgosz in contempt, and to enforce the July 13, 2020 judgment. The defendants moved pursuant to CPLR 5015(a) to vacate the clerk’s judgment. By order entered May 14, 2021, the Supreme Court granted the defendants’ motion to vacate the July 13, 2020 judgment, and denied the plaintiff’s pending motions. The plaintiff appeals. We affirm, albeit on a different ground than that relied upon by the Supreme Court. CPLR 321(c) mandates that if an attorney “is removed, suspended, or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he [or she] appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs” (see Moray v. Koven & Krause, Esqs., 15 NY3d 384, 388). “CPLR 321(c) protects the client by automatically staying the action from the date of the disabling event,” and “judgments that are rendered in violation of the stay provisions of CPLR 321(c) must be vacated” (Wells Fargo Bank, N.A. v. Kurian, 197 AD3d 173, 176; see Moray v. Koven & Krause, Esqs., 15 NY3d at 388-389). Here, the defendants’ attorney was suspended from the practice of law effective May 18, 2020. Thereafter, the defendants were not served with a notice to appoint another attorney, and the Supreme Court did not grant leave to resume the proceedings. Since another attorney did not appear on behalf of the defendants until September 24, 2020, an automatic stay was in place when the judgment was entered on July 13, 2020. Contrary to the plaintiff’s contention, even assuming that the defendants improperly raised this issue for the first time in their reply papers, they properly raised this issue on appeal (see Moray v. Koven & Krause, Esqs., 15 NY3d at 390; Matter of Cassini, 182 AD3d 13, 45-46). Accordingly, the court properly granted the defendants’ motion to vacate the July 13, 2020 judgment. The plaintiff’s remaining contentions are either academic in light of our determination or without merit. IANNACCI, J.P., GENOVESI, FORD and WAN, JJ., concur. JOHN S. DESIDERIO, app, v. ROBERT H. WILGOSZ, ETC., ET AL., res, ET AL., def — (Index No. 615205/19) Motion by the appellant to strike stated portions of the respondents’ brief on the ground that they raise issues that are not properly before this Court and to impose a sanction upon the respondents and the respondents’ counsel. By decision and order on motion of this Court dated February 7, 2022, that branch of the motion which is to strike stated portions of the respondents’ brief was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof. Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is ORDERED that the branch of the motion which is to strike stated portions of the respondents’ brief is denied. IANNACCI, J.P., GENOVESI, FORD and WAN, JJ., concur. By Dillon, J.P.; Christopher, Wooten, Taylor, JJ. MICHAEL JONES, ET AL., app, v. NEW YORK STATE THRUWAY AUTHORITY, res — (Index No. 127756) Sacks and Sacks, LLP, New York, NY (Scott N. Singer of counsel), for appellants. The Law Office of Kenneth Arthur Rigby, PLLC, Bronxville, NY, for respondent. In a claim to recover damages for personal injuries, etc., the claimants appeal from an order of the Court of Claims (Walter Rivera, J.), dated April 16, 2021. The order denied the claimants’ motion pursuant to CPLR 3025(b) for leave to amend the claim. ORDERED that the order is affirmed, with costs. On April 11, 2013, the claimant Michael Jones (hereinafter the injured claimant) allegedly was injured while working on a project to replace decks on the Tappan Zee Bridge. The defendant was the owner of the Tappan Zee Bridge. The injured claimant alleged that he was wheeling a generator when the generator’s wheels came into contact with a loose short sheet, causing the generator to stop abruptly. As a result, the injured claimant tripped, hitting his right shoulder against a truss on the bridge. The injured claimant, and his wife suing derivatively, initially commenced a claim against the State of New York, but that claim was dismissed. The Court of Claims later granted the claimants leave to file a late claim against the defendant but directed the claimants to remove certain causes of action. The claimants subsequently moved pursuant to CPLR 3025(b) for leave to amend the claim. In an order dated April 16, 2021, the court denied the claimants’ motion. The claimants appeal. “In general, leave to amend a pleading may be granted at any time, including during trial, absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit” (Galarraga v. City of New York, 54 AD3d 308, 310; see CPLR 3025[b]; Toiny, LLC v. Rahim, 214 AD3d 1023, 1024). “The determination to permit or deny amendment is committed to the sound discretion of the trial court” (Marcum, LLP v. Silva, 117 AD3d 917, 917). “To establish liability under Labor Law §241(6), a plaintiff or a claimant must demonstrate that his [or her] injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case” (Aragona v. State of New York, 147 AD3d 808, 809; see Stewart v. Brookfield Off. Props., Inc., 212 AD3d 746, 746-747). “[L]eave to amend the pleadings to so identify the relevant [Industrial] Code provision may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant” (Galarraga v. City of New York, 54 AD3d at 310; see Palaguachi v. Idlewild 228th St., LLC, 197 AD3d 1321, 1322). Here, the Court of Claims providently exercised its discretion in denying the claimants’ motion pursuant to CPLR 3025(b) for leave to amend the claim to allege violations of certain sections of the Industrial Code with regard to the Labor Law §241(6) cause of action. The proposed amendments were palpably insufficient and patently devoid of merit (see Stewart v. Brookfield Off. Props., Inc., 212 AD3d at 746-747; Murphy v. 80 Pine, LLC, 208 AD3d 492, 497; Fonck v. City of New York, 198 AD3d 874, 876; Ragone v. Spring Scaffolding, Inc., 46 AD3d 652, 654). The parties’ remaining contentions are without merit. DILLON, J.P., CHRISTOPHER, WOOTEN and TAYLOR, JJ., concur. By Iannacci, J.P.; Genovesi, Ford, Wan, JJ. DAVID J. WHELAN, app, v. CHRISTINA CUOMO, res — (Index No. 607268/21) Mary M. Whelan, Sag Harbor, NY, for appellant. Ondrovic & Platek, PLLC, White Plains, NY (Karen A. Ondrovic of counsel), for respondent. In an action to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated April 27, 2022. The order, insofar as appealed from, granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7), in effect, to dismiss the second amended complaint. ORDERED that the order is affirmed insofar as appealed from, with costs. In 2021, the plaintiff commenced this action to recover damages for allegedly defamatory statements made by the defendant in an interview broadcast on Billy Bush’s EXTRA television show in April 2020, and in an article published in ELLE Magazine in October 2020. In June 2021, the plaintiff served an amended complaint alleging causes of action sounding in defamation and defamation per se. The defendant moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the amended complaint. The plaintiff opposed the motion and cross-moved pursuant to CPLR 3025(b) for leave to amend the amended complaint to allege causes of action to recover damages for defamation and slander per se based upon the allegedly slanderous statements made by the defendant in the April 2020 interview, and causes of action to recover damages for defamation and libel per se based upon the allegedly libelous statements attributed to the defendant in the October 2020 magazine article. In opposition to the plaintiff’s cross-motion, the defendant argued, among other things, that the proposed second amended complaint should be dismissed on the ground that the evidentiary submissions demonstrated that the proposed second amended complaint failed to state a cause of action against the defendant. In an order dated April 27, 2022, the Supreme Court granted the plaintiff’s cross-motion for leave to amend the amended complaint, and deemed the second amended complaint served. The court then granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7), in effect, to dismiss the second amended complaint. The plaintiff appeals. We affirm. Initially, under the circumstances of this case, once the Supreme Court granted the plaintiff’s cross-motion for leave to amend the amended complaint, it was not erroneous for the court to consider the defendant’s motion as being directed against the second amended complaint (see Langley v. Melville Fire Dist., 213 AD3d 748, 749-750; Fagbuyi v. Accredited Home Lenders, Inc., 140 AD3d 1011, 1012; Sobel v. Ansanelli, 98 AD3d 1020, 1022). “‘In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’” (Bono v. Stim & Warmuth, P.C., 215 AD3d 911, 911, quoting Langley v. Melville Fire Dist., 213 AD3d 748, 750). “Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), and such proof is considered but the motion has not been converted to one for summary judgment, ‘the criterion is whether the proponent of the pleading has a cause of action, not whether [the proponent] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it…dismissal should not eventuate’” (Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714, 715-716, quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275). “The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se” (Bowen v. Van Bramer, 205 AD3d 674, 674-675 [internal quotation marks omitted]). “Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action” (id. at 675 [internal quotation marks omitted]). Thus, “[a]n expression of pure opinion is not actionable…no matter how vituperative or unreasonable it may be” (Kasavana v. Vela, 172 AD3d 1042, 1045, quoting Steinhilber v. Alphonse, 58 NY2d 283, 289). “The allegedly defamatory statement must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader [or listener], and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction” (Bowen v. Van Bramer, 205 AD3d at 675). “While a pure opinion cannot be the subject of a defamation claim, an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it…is a mixed opinion and is actionable” (Davis v. Boeheim, 24 NY3d 262, 269 [internal quotation marks omitted]). Here, all of the defendant’s statements contained in the October 2020 article, and many of the defendant’s statements during the April 2020 interview, amounted to no more than “‘nonactionable opinion or rhetorical hyperbole’” (Bowen v. Van Bramer, 205 AD3d at 676, quoting Stolatis v. Hernandez, 161 AD3d 1207, 1209). To the extent that some of the defendant’s statements of opinion during the April 2020 interview implied that they were “based upon facts which justify the opinion but are unknown to those reading or hearing it” (Davis v. Boeheim, 24 NY3d at 269), the second amended complaint failed to properly plead special damages. Here, the second amended complaint alleged, without elaboration, that the allegedly slanderous statements made during the April 2020 interview “has damaged plaintiff’s reputation resulting in a loss of new business that can be estimated to be in the sum of at least $300,000,” and that the defendant “defamed plaintiff in his reputation and standing in the community and diminished his ability to attract new business in his trade and loss of confidence by existing customers.” Such general statements “fail[ ] to adequately plead special damages” (Akpinar v. Moran, 83 AD3d 458, 459; see Liberman v. Gelstein, 80 NY2d 429, 434-435; Epifani v. Johnson, 65 AD3d 224, 234). Moreover, although “[a] plaintiff need not prove special damages…if he or she can establish that the alleged defamatory statement constituted slander per se” (Rufeh v. Schwartz, 50 AD3d 1002, 1004), the second amended complaint failed to adequately allege slander per se. As relevant here, slander per se includes “statements (i) charging plaintiff with a serious crime; [and] (ii) that tend to injure another in his or her trade, business or profession” (Liberman v. Gelstein, 80 NY2d 429, 435). In this case, according the plaintiff the benefit of every possible favorable inference, the defendant’s statements during the April 2020 interview, at most, accused the plaintiff of trespass (Penal Law §140.05) and harassment (see id. §240.26), which are “relatively minor offense[s] in the New York Penal Law—not even a misdemeanor” (Liberman v. Gelstein, 80 NY2d at 436), and, therefore, do not constitute “serious crime[s]” (id. at 435). Moreover, the statements made by the defendant during the April 2020 interview were not actionable under the “ trade, business or profession” exception, since those statements constituted a “general reflection upon the plaintiff’s character or qualities” (id. at 436 [internal quotation marks omitted]), and were not “made with reference to a matter of significance and importance for th[e] purpose” of harming the plaintiff in his business (id. [internal quotation marks omitted]). Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7), in effect, to dismiss the second amended complaint. IANNACCI, J.P., GENOVESI, FORD and WAN, JJ., concur. By Connolly, J.P.; Nelson, Chambers, Voutsinas, JJ. IN THE MATTER OF DOUGLAS ELLIMAN OF LI, LLC, ETC., res, v. CONOR O’CALLAGHAN, ET AL., app — (Index No. 609892/21) De Lotto & Fajardo LLP, Rhinebeck, NY (Eduardo A. Fajardo of counsel), for appellants. Cole Chester LLP, New York, NY (Michael S. Cole of counsel), for respondent. In a proceeding pursuant to CPLR article 75 to confirm an arbitration award dated May 25, 2021, in which Conor O’Callaghan and Tina O’Callaghan cross-petitioned, inter alia, to vacate the award, Conor O’Callaghan and Tina O’Callaghan appeal from a judgment of the Supreme Court, Nassau County (Christopher G. Quinn, J.), entered January 19, 2022. The judgment, upon an order of the same court entered December 28, 2021, granting the petition and denying the cross-petition, is in favor of the petitioner and against Conor O’Callaghan and Tina O’Callaghan in the total sum of $169,725. ORDERED that the judgment is affirmed, with costs. The petitioner commenced this proceeding pursuant to CPLR article 75 to confirm an arbitration award dated May 25, 2021. The arbitrator determined that Conor O’Callaghan and Tina O’Callaghan (hereinafter together the O’Callaghans) were obligated to pay a commission fee of $154,500 pursuant to a written agreement with the petitioner in relation to the sale of certain real property in Manhasset. The arbitration award directed the O’Callaghans to pay the commission fee plus the costs of arbitration. The O’Callaghans cross-petitioned, inter alia, to vacate the arbitration award. In an order entered December 28, 2021, the Supreme Court granted the petition and denied the cross-petition. Subsequently, a judgment was entered upon the order in favor of the petitioner and against the O’Callaghans. The O’Callaghans appeal from the judgment. “[J]udicial review of arbitration awards is extremely limited” (Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 NY3d 471, 479). CPLR 7511(b) enumerates the limited grounds upon which an award may be vacated, including, as relevant here, that the arbitrator exceeded his or her authority (see id. §7511[b][1][iii]; American Intl. Specialty Lines Ins. Co. v. Allied Capital Corp., 35 NY3d 64, 70). “An arbitrator exceed[s] [his or her] power within the meaning of the CPLR only when [he or she] issue[s] an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Matter of Village of Spring Val. v. Civil Serv. Empls. Assn., Inc., 214 AD3d 818, 819 [internal quotation marks omitted]; see American Intl. Specialty Lines Ins. Co. v. Allied Capital Corp., 35 NY3d at 70). “A party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence” (Matter of Board of Educ. of the Yonkers City Sch. Dist. v. Yonkers Fedn. of Teachers, 185 AD3d 811, 812; see Matter of Village of Spring Val. v. Civil Serv. Empls. Assn., Inc., 214 AD3d at 819-820). “Courts are bound by an arbitrator’s factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice” (Matter of New York State Correctional Officers & Police Benevolent Assn. v. State of New York, 94 NY2d 321, 326; see Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, 91). Here, the O’Callaghans failed to establish any ground for vacatur by clear and convincing evidence. The award, which rested upon an interpretation of the written agreement and subsequent correspondence between the parties, was not irrational (see Matter of City of Yonkers v. Police Benevolent Assn. of the City of Yonkers, 210 AD3d 765, 767; Matter of CEO Bus. Brokers, Inc. v. 1431 Utica Ave. Corp., 187 AD3d 1185, 1186; Matter of Dedvukaj v. Shkreli, 180 AD3d 895, 897). The O’Callaghans’ contention that the arbitration award violated strong public policy underlying the requirements of Real Property Law §443(3)(a), raised for the first time on appeal, is not properly before this Court (see Matter of Dedvukaj v. Shkreli, 180 AD3d at 897). Accordingly, the Supreme Court properly granted the petition to confirm the arbitration award and denied the cross-petition, inter alia, to vacate the arbitration award. CONNOLLY, J.P., BRATHWAITE NELSON, CHAMBERS and VOUTSINAS, JJ., concur. By Iannacci, J.P.; Wooten, Warhit, Wan, JJ. SUSANA TENEZACA, res, v. STATE OF NEW YORK, app — (Index No. 133121) Letitia James, Attorney General, New York, NY (Judith N. Vale, Eric Del Pozo, and Kristin C. Holladay of counsel), for appellant. Ferro, Kuba, Mangano, P.C., Hauppauge, NY (Michael N. Manolakis of counsel), for respondent. In a claim to recover damages for personal injuries, the defendant appeals from an interlocutory judgment of the Court of Claims (Gina M. Lopez-Summa, J.), dated November 29, 2021. The interlocutory judgment, upon an order of the same court dated October 5, 2021, inter alia, granting the claimant’s motion, in effect, for summary judgment on the issue of liability and dismissing the defendant’s affirmative defense alleging comparative negligence and culpable conduct on her part and determining that the defendant was 100% at fault in the happening of the accident, is in favor of the claimant and against the defendant on the issue of liability. ORDERED that on the Court’s own motion, the notice of appeal from the order dated October 5, 2021, is deemed to be a premature notice of appeal from the interlocutory judgment (see CPLR 5520[c]); and it is further, ORDERED that the interlocutory judgment is affirmed; and it is further, ORDERED that one bill of costs is awarded to the claimant. The claimant commenced this claim to recover damages for personal injures she allegedly sustained when the vehicle she was operating was struck in the rear by a dump truck owned by the defendant, the State of New York, and operated by its employee, Brian Fitzgerald, on the South Service Road of the Long Island Expressway near its intersection with Route 112. The claimant moved, in effect, for summary judgment on the issue of liability and dismissing the defendant’s affirmative defense alleging comparative negligence and culpable conduct on her part. The Court of Claims, inter alia, granted the claimant’s motion, determining that the defendant, through its agent, was 100% at fault in the happening of the accident. An interlocutory judgment was entered in favor of the claimant and against the defendant on the issue of liability. The defendant appeals. “A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries” (Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 AD3d 1033, 1033-1034). “A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability” (Xin Fang Xia v. Saft, 177 AD3d 823, 825; see Rodriguez v. City of New York, 31 NY3d 312). However, while “a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant’s affirmative defense alleging comparative negligence and culpable conduct on the part of the plaintiff” (Sapienza v. Harrison, 191 AD3d 1028, 1029; see Seizeme v. Levy, 208 AD3d 809, 810). “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” (Nsiah-Ababio v. Hunter, 78 AD3d 672, 672; see Vehicle and Traffic Law §1129[a]). Thus, “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, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” (Drakh v. Levin, 123 AD3d 1084, 1085; see Newfeld v. Midwood Ambulance & Oxygen Serv., Inc., 204 AD3d 813, 814). “Although a sudden stop of the lead vehicle may constitute a nonnegligent explanation for a rear-end collision, vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her vehicle and the vehicle ahead” (Quintanilla v. Mark, 210 AD3d 713, 714 [internal quotation marks omitted]; see Arslan v. Costello, 164 AD3d 1408, 1409). Here, the claimant established her prima facie entitlement to judgment as a matter of law on the issue of liability through the deposition testimony of herself and Fitzgerald, which demonstrated that the claimant was stopped for a traffic condition ahead when her vehicle was struck in the rear by the truck operated by Fitzgerald (see Genao v. Cassetta, 214 AD3d 626, 627; Quintanilla v. Mark, 210 AD3d at 714). The claimant also established her prima facie entitlement to judgment as a matter of law dismissing the defendant’s affirmative defense alleging comparative negligence and culpable conduct on her part by demonstrating that she was not at fault in the happening of the accident (see Seizeme v. Levy, 208 AD3d at 811). Although Fitzgerald testified that the claimant came to an abrupt stop prior to the collision, he admitted that, just prior to the collision, he took his eyes off the road ahead of him and took his foot off the brake. He further testified that when he looked back in the direction he was traveling, the claimant’s vehicle was stopped in front of him. Under these circumstances, the accident was attributable to Fitzgerald’s own inattentiveness in taking his eyes off the road in front of him, and not to any negligence on the part of the claimant (see Clarke v. Philips, 112 AD3d 872, 874-875; Hauswirth v. Transcare N.Y., Inc., 97 AD3d 792, 793). In opposition, the defendant failed to raise a triable issue of fact as to Fitzgerald’s negligence or whether the claimant was comparatively at fault in the happening of the accident (see Newfeld v. Midwood Ambulance & Oxygen Serv., Inc., 204 AD3d at 814). Further, contrary to the defendant’s contention, the claimant’s motion was not premature (see Quintanilla v. Mark, 210 AD3d at 714-715). Accordingly, the Court of Claims properly granted the claimant’s motion, in effect, for summary judgment on the issue of liability and dismissing the defendant’s affirmative defense alleging comparative negligence and culpable conduct on her part. IANNACCI, J.P., WOOTEN, WARHIT and WAN, JJ., concur. By Dillon, J.P.; Iannacci, Miller, Taylor, JJ. PEOPLE OF STATE OF NEW YORK, res, v. ELVIN HESKEY, app. Jeffrey D. Cohen, Kew Gardens, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Jonathan E. Maseng of counsel), for respondent. Appeal by the defendant from an order of the Supreme Court, Queens County (Ira H. Margulis, J.), dated November 30, 2022, 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. In 2016, the defendant was convicted in the United States District Court for the Southern District of New York, upon his plea of guilty, of transportation of child pornography (see 18 USC §2252A[a][1]), receipt and distribution of child pornography (see id. §2252A[a][2][B]; [b][1]), and possession of child pornography (see id. §2252A[a][5][B]; [b][2]). In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the Supreme Court, after a hearing, designated the defendant a level three sex offender based upon the assessment of 120 points. The defendant’s contention that he is entitled to a downward departure from the presumptive risk level based upon purported mitigating factors is unpreserved for appellate review, as he failed to request a downward departure at the SORA hearing (see People v. Howell, 213 AD3d 708, 709; People v. Jackson, 209 AD3d 881, 882). In any event, contrary to the defendant’s contention, he failed to establish his entitlement to a downward departure (see People v. Gillotti, 23 NY3d 841, 861; People v. Wyatt, 89 AD3d 112). DILLON, J.P., IANNACCI, MILLER and TAYLOR, JJ., concur. By Barros, J.P.; Wooten, Ford, Warhit, JJ. PEOPLE OF STATE OF NEW YORK, res, v. JIMMY BARNES, app. Randall D. Unger, Kew Gardens, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and William H. Branigan of counsel; Gianna Gambino on the brief), for respondent. Appeal by the defendant from an order of the Supreme Court, Queens County (Cassandra M. Mullen, J.), dated January 3, 2023, 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. In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the Supreme Court assessed the defendant 125 points on the risk assessment instrument and designated him a level three sex offender. On appeal, the defendant challenges the assessment of 30 points under risk factor one (armed with a dangerous instrument). “In establishing an offender’s appropriate risk level under SORA, the People ‘bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence’” (People v. Watkins, 168 AD3d 1007, 1007-1008, quoting Correction Law §168-n[3]). “In assessing points, evidence may be derived from the defendant’s admissions, the victim’s statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders…, or any other reliable source, including reliable hearsay” (People v. Crandall, 90 AD3d 628, 629; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). Here, contrary to the defendant’s contention, the People established by clear and convincing evidence that the assessment of 30 points under risk factor one, for being armed with a dangerous instrument, was warranted. The sworn grand jury testimony of one of the victims, which established that the defendant was armed with a firearm while committing the underlying offense, was reliable within the meaning of SORA (see People v. Mingo, 12 NY3d 563, 574; People v. Gorostiza, 210 AD3d 1118, 1119). Accordingly, the Supreme Court properly designated the defendant a level three sex offender. BARROS, J.P., WOOTEN, FORD and WARHIT, JJ., concur. By Connolly, J.P.; Iannacci, Wooten, Ford, JJ. PEOPLE OF STATE OF NEW YORK, res, v. JERRY ADAMS, app. Twyla Carter, New York, NY (Samuel Claflin of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent. Appeal by the defendant from an order of the Supreme Court, Kings County (Guy James Mangano, Jr., J.), dated March 11, 2020, 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 to designate the defendant’s risk level pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the defendant sought a downward departure from his presumptive level three risk designation. The Supreme Court denied the downward departure application, and designated the defendant a level three sex offender. The defendant appeals. 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] [hereinafter Guidelines]). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant’s dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 NY3d at 861; People v. Champagne, 140 AD3d 719, 720). Although debilitating illness and advanced age may constitute grounds for a downward departure, here, the defendant failed to prove that his age or health at the time of the SORA hearing constituted appropriate mitigating factors and minimized his risk of reoffense (see People v. Gunter, 217 AD3d 788, 790-791; People v. Rivas, 185 AD3d 740, 741). Similarly, while “[r]ehabilitation on the basis of the totality of the record is a mitigating factor that is not taken into account by the Guidelines” (People v. Madison, 98 AD3d 573, 574), the defendant did not prove by a preponderance of the evidence the facts in support of this mitigating factor (see People v. Abdullah, 210 AD3d 704, 706; People v. Haims, 203 AD3d 1184; People v. Ramos, 186 AD3d 511, 511-512). In any event, even considering the proffered mitigating factors, the totality of the circumstances—including the potential for great harm to be inflicted if the defendant were to reoffend, as reflected by the nature of the offense, and the defendant’s failure to admit his wrongdoing and refusal to participate in treatment—did not demonstrate that a departure was warranted in the exercise of discretion to avoid an overassessment of the defendant’s dangerousness and risk of sexual recidivism (see People v. Abdullah, 210 AD3d at 706; People v. Aller, 164 AD3d 1381, 1382; People v. Grubbs, 107 AD3d 771, 773). Finally, the defendant failed to show that, but for a claimed error by defense counsel, the result of the proceeding would have been different or that defense counsel’s error was so egregious and prejudicial that it denied the defendant meaningful representation (see People v. Parvez, 209 AD3d 885, 888; People v. Holley, 127 AD3d 1154). Accordingly, the defendant has not demonstrated that he was deprived of the effective assistance of counsel. CONNOLLY, J.P., IANNACCI, WOOTEN and FORD, JJ., concur. By Duffy, J.P.; Ford, Dowling, Taylor, JJ. JUBAR DAVID JONES, res, v. HAIFENG ZUO, app — (Index No. 502738/21) Karen J. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum], of counsel), for appellant. Joshua Brian Irwin, P.C. (Mitchell Dranow, Sea Cliff, NY, of counsel), for respondent. In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated June 22, 2022. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the issue of liability and dismissing the defendant’s affirmative defense alleging comparative negligence. ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff’s motion which was for summary judgment dismissing the defendant’s affirmative defense alleging comparative negligence, 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. In 2021, the plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in July 2020 when a vehicle he was driving collided with a vehicle driven by the defendant. In an order dated June 22, 2022, the Supreme Court, inter alia, granted those branches of the plaintiff’s motion which were for summary judgment on the issue of liability and dismissing the defendant’s affirmative defense alleging comparative negligence. The defendant appeals. “A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law” (Vainer v. DiSalvo, 79 AD3d 1023, 1024). Vehicle and Traffic Law §1142(a) provides, in pertinent part, that “[e]xcept when directed to proceed by a police officer, every driver of a vehicle approaching a stop sign shall stop…and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection.” “[T]he question of whether the driver stopped at the stop sign is not dispositive where the evidence establishes that the driver failed to yield after initially stopping” (Fuertes v. City of New York, 146 AD3d 936, 937; see Shufang Yang v. Sanacore, 202 AD3d 1120, 1121). A driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield (see Orellana v. Mendez, 208 AD3d 888, 889; Wolf v. Cruickshank, 144 AD3d 1144, 1145). At the same time, “a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision [and] to see what there is to be seen through the proper use of his or her senses” (Ballentine v. Perrone, 179 AD3d 993, 994; see De Castillo v. Sormeley, 140 AD3d 918, 919). “A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability” (Xin Fang Xia v. Saft, 177 AD3d 823, 825; see Rodriguez v. City of New York, 31 NY3d 312, 323). Nevertheless, a plaintiff moving for summary judgment dismissing a defendant’s affirmative defense alleging comparative negligence may seek to establish freedom from comparative fault as a matter of law (see Poon v. Nisanov, 162 AD3d 804, 808). Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting his affidavit, which demonstrated that the defendant failed to yield the right-of-way to the plaintiff and negligently drove his vehicle into the plaintiff’s vehicle (see Vehicle and Traffic Law §1142[a]; Orellana v. Mendez, 208 AD3d at 890; Hunt v. New York City Tr. Auth., 166 AD3d 735, 736-737). In opposition, the defendant failed to raise a triable issue of fact as to whether his negligence was a proximate cause of the accident. The plaintiff also established his prima facie entitlement to judgment as a matter of law dismissing the defendant’s affirmative defense alleging comparative negligence by demonstrating that he was not at fault in the happening of the accident (see Breen v. Seibert, 123 AD3d 963, 964-965; Bennett v. Granata, 118 AD3d 652, 653). However, in opposition to the plaintiff’s prima facie showing, the defendant raised a triable issue of fact as to whether the plaintiff was comparatively at fault in causing the accident. In his affidavit, the defendant averred that after stopping at a stop sign, he did not have sufficient visibility to safely proceed, so he moved his vehicle forward and stopped again. The defendant further averred that after he stopped his vehicle for the second time, the front of his vehicle was past the stop sign, and remained stopped there for 10 to 20 seconds until the plaintiff’s vehicle struck the defendant’s vehicle. The defendant’s affidavit raised triable issues of fact as to whether the plaintiff, who allegedly was looking straight ahead and had an unobstructed view of the road ahead, was negligent in failing to take reasonable care to avoid the collision (see Tornabene v. Seickel, 186 AD3d 645, 647; Bermejo v. Khaydarov, 155 AD3d 597; Mu-Jin Chen v. Cardenia, 138 AD3d 1126, 1128). The defendant’s remaining contention is without merit. Accordingly, the Supreme Court properly granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability, but the court should have denied that branch of the plaintiff’s motion which was for summary judgment dismissing the defendant’s affirmative defense alleging comparative negligence. DUFFY, J.P., FORD, DOWLING and TAYLOR, JJ., concur. By Iannacci, J.P.; Wooten, Warhit, Wan, JJ. WELLS FARGO BANK, N.A., res, v. PINCUS FRANKEL, app, ET AL., def — (Index No. 506942/17) IM Law Group, P.C., Cedarhurst, NY (Igor Meystelman of counsel), for appellant. Goodwin Procter LLP, New York, NY (Allison J. Schoenthal and Allison M. Funk of counsel), for respondent. In an action to foreclose a mortgage, the defendant Pincus Frankel appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated December 10, 2019. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Pincus Frankel, to strike that defendant’s answer, and for an order of reference. ORDERED that the order is affirmed insofar as appealed from, with costs. In June 2007, the defendant Pincus Frankel (hereinafter the defendant) executed a note that was secured by a mortgage on certain real property located in Brooklyn. On June 13, 2011, the plaintiff commenced an action to foreclose the mortgage (hereinafter the 2011 action), and a judgment of foreclosure and sale was issued on July 28, 2015. In February 2017, the plaintiff moved, inter alia, to vacate the judgment of foreclosure and sale and to discontinue the 2011 action. In an order dated June 1, 2017, the Supreme Court granted the motion. In the interim, on April 7, 2017, the plaintiff commenced this action to foreclose the mortgage. The defendant interposed an answer asserting various affirmative defenses, including that the action was barred by the applicable statute of limitations. The plaintiff then moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, including all counterclaims and affirmative defenses, and for an order of reference. In an order dated December 10, 2019, the Supreme Court, among other things, granted those branches of the plaintiff’s motion. The defendant appeals. An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4]; Lubonty v. U.S. Bank N.A., 34 NY3d 250, 261). “[E]ven if 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” (BHMPW Funding, LLC v. Lloyd-Lewis, 194 AD3d 780, 782 [internal quotation marks omitted]; see GMAT Legal Title Trust 2014-1 v. Kator, 213 AD3d 915, 916). Acceleration occurs, inter alia, by the commencement of a foreclosure action wherein the holder of the note elects in the complaint to call due the entire amount secured by the mortgage (see GMAT Legal Title Trust 2014-1 v. Kator, 213 AD3d at 916; Ditech Fin., LLC v. Connors, 206 AD3d 694, 697). A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action (see HSBC Bank USA, N.A. v. Gold, 171 AD3d 1029, 1030). Here, contrary to the defendant’s contention, the plaintiff established, prima facie, that this action was not time-barred. The plaintiff demonstrated that, although the mortgage debt was accelerated in June 2011 when the 2011 action was commenced, this action, commenced in April 2017, less than six years later, was timely (see Bank of N.Y. Mellon v. Shurko, 209 AD3d 951, 953; Bank of Am., N.A. v. Riche, 190 AD3d 674, 675-676). In opposition, the defendant failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and for an order of reference. IANNACCI, J.P., WOOTEN, WARHIT and WAN, JJ., concur. By Lasalle, P.J.; Connolly, Genovesi, Voutsinas, JJ. SANTA MANGIARACINA, app, v. LISSETTE JIMENEZ-CANO, res, ET AL., def — (Index No. 718485/19) Ronald D. Weiss, P.C., Melville, NY (Rosemarie Klie of counsel), for appellant. Patrick Christopher, Centereach, NY, for respondent. In an action to recover damages for fraud and unjust enrichment and to rescind a deed, the plaintiff appeals from an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), entered July 12, 2021. The order, insofar as appealed from, failed to determine those branches of the plaintiff’s motion which were for leave to renew her opposition to the motion of the defendant Lissette Jimenez-Cano pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against her, which had been granted in an order of the same court dated April 17, 2020, and pursuant to CPLR 3025(b) for leave to amend the amended complaint. ORDERED that the appeal is dismissed, with costs. The plaintiff alleges that she owned certain real property located in Howard Beach, and that the property was subsequently transferred by a fraudulent deed to the defendant Lissette Jimenez-Cano (hereinafter the defendant). The plaintiff commenced this action against, among others, the defendant to recover damages for fraud and unjust enrichment and to rescind the deed. Prior to answering, the defendant moved pursuant CPLR 3211(a) to dismiss the amended complaint insofar as asserted against her. In an order dated April 17, 2020, the Supreme Court granted the defendant’s motion. On April 7, 2021, the plaintiff moved, inter alia, for leave to reargue and renew her opposition to the defendant’s prior motion and for leave to amend the amended complaint. In an order entered July 12, 2021, the Supreme Court denied that branch of the plaintiff’s motion which was for leave to reargue. However, the court did not determine those branches of the plaintiff’s motion which were for leave to renew and for leave to amend the amended complaint. The plaintiff appeals from so much of the order as failed to determine those branches of her motion. We do not reach the plaintiff’s arguments regarding those branches of her motion which were for leave to renew her opposition to the defendant’s prior motion and for leave to amend the amended complaint. Those branches of the plaintiff’s motion were not addressed in the order appealed from and, therefore, remain pending and undecided (see Katz v. Katz, 68 AD2d 536, 543). Accordingly, we dismiss the appeal. LASALLE, P.J., CONNOLLY, GENOVESI and VOUTSINAS, JJ., concur. By Iannacci, J.P.; Genovesi, Voutsinas, Taylor, JJ. MAYA KAUL, res, v. BROOKLYN FRIENDS SCHOOL, ET AL., app, ET AL., def — (Index No. 512634/20) Venable LLP, New York, NY (Michael J. Volpe and Doreen S. Martin of counsel), for appellants. Rheingold Giuffra Ruffo & Plotkin LLP, New York, NY (Sherri L. Plotkin and Jeremy Hellman of counsel), for respondent. In an action, inter alia, to recover damages for personal injuries, the defendants Brooklyn Friends School and Vanessa Aird appeal from an order of the Supreme Court, Kings County (Deborah A. Kaplan, J.), dated March 31, 2022. The order, insofar as appealed from, granted the plaintiff’s cross-motion pursuant to CPLR 3025 for leave to amend the complaint, and denied those branches of the motion of the defendants Brooklyn Friends School and Vanessa Aird which were, in effect, pursuant to CPLR 3211(a) to dismiss the first, second, third, and fifth causes of action in the amended complaint insofar as asserted against them. ORDERED that the order is affirmed insofar as appealed from, with costs. “[O]n a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant ‘bears the initial burden of [establishing], prima facie, that the time in which to sue has expired’” (Schearer v. Fitzgerald, 217 AD3d 980, 981, quoting Kogut v. Village of Chestnut Ridge, 214 AD3d 777, 778). CPLR 214-g, enacted as part of the Child Victims Act (hereinafter the CVA), “provides a revival window for civil claims or causes of action alleging intentional or negligent acts or omissions that seek to recover damages for injuries suffered as a result of ‘conduct which would constitute a sexual offense as defined in article [130] of the penal law committed against a child less than eighteen years of age, incest as defined in section 255.27, 255.26 or 255.25 of the penal law committed against a child less than eighteen years of age, or the use of a child in a sexual performance as defined in section 263.05 of the penal law’” (Anonymous v. Castagnola, 210 AD3d 940, 941, quoting CPLR 214-g; see S.H. v. Diocese of Brooklyn, 205 AD3d 180, 184). Here, the plaintiff’s causes of action were brought under the CVA, which revived the time to commence her civil action (see Meyer v. State of New York, 213 AD3d 753, 756; Anonymous v. Castagnola, 210 AD3d at 942-943). Accordingly, the Supreme Court properly denied those branches of the motion of the defendants Brooklyn Friends School (hereinafter BFS) and Vanessa Aird (hereinafter together the defendants) which were, in effect, pursuant to CPLR 3211(a)(5) to dismiss the causes of action to recover damages for negligent supervision, negligent hiring and retention, negligent training, and intentional infliction of emotional distress in the amended complaint insofar as asserted against them. “On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a 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’” (Sullivan v. St. Ephrem R.C. Parish Church, 214 AD3d 751, 752, quoting Leon v. Martinez, 84 NY2d 83, 87-88; see Davila v. Orange County, 215 AD3d 632, 635). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19; see Sullivan v. Port Wash. Union Free Sch. Dist., 213 AD3d 966, 967). “Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (Timothy Mc. v. Beacon City Sch. Dist., 127 AD3d 826, 827; see Sullivan v. St. Ephrem R.C. Parish Church, 214 AD3d at 752). “The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information” (Timothy Mc. v. Beacon City Sch. Dist., 127 AD3d at 828; see Sullivan v. St. Ephrem R.C. Parish Church, 214 AD3d at 753). “Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must allege that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” (Sullivan v. St. Ephrem R.C. Parish Church, 214 AD3d at 753; see Mirand v. City of New York, 84 NY2d 44, 49; Fuller v. Family Servs. of Westchester, Inc., 209 AD3d 983, 984). Similarly, to establish a cause of action based on negligent hiring and retention, “it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” (Shor v. Touch-N-Go Farms, Inc., 89 AD3d 830, 831; see Fuller v. Family Servs. of Westchester, Inc., 209 AD3d at 984). The plaintiff alleged in the amended complaint, inter alia, that she was a student of BFS, that Aird and the nurse who allegedly abused the plaintiff were employees of BFS, that BFS knew or should have known about its employees’ propensity to engage in such conduct, and that the conduct occurred during school activities and during times at which the plaintiff was under BFS’s supervision and care, custody, and control. Here, at the pleading stage of the litigation, where the plaintiff’s allegations in the amended complaint are accepted as true and are accorded the benefit of every possible favorable inference, the causes of action to recover damages for negligent supervision, negligent hiring and retention, and negligent training of Aird and the nurse were sufficiently pleaded (see Davila v. Orange County, 215 AD3d at 635; Novak v. Sisters of the Heart of Mary, 210 AD3d 1104, 1105; cf. Fuller v. Family Servs. of Westchester, Inc., 209 AD3d at 984). Accordingly, the Supreme Court properly denied those branches of the defendants’ motion which were, in effect, pursuant to CPLR 3211(a)(7) to dismiss the causes of action to recover damages for negligent supervision, negligent hiring and retention, and negligent training in the amended complaint insofar as asserted against them. “The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress” (Klein v. Metropolitan Child Servs., Inc., 100 AD3d 708, 710; see Novak v. Sisters of the Heart of Mary, 210 AD3d at 1106). Here, accepting the allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, Aird’s alleged conduct would be sufficiently outrageous in character and extreme in degree to support a cause of action to recover damages for intentional infliction of emotional distress (see Novak v. Sisters of the Heart of Mary, 210 AD3d at 1106; Eskridge v. Diocese of Brooklyn, 210 AD3d 1056, 1058; see generally Pisula v. Roman Catholic Archdiocese of N.Y., 201 AD3d 88, 101). The plaintiff also sufficiently pleaded a causal connection between Aird’s allegedly outrageous conduct and the plaintiff’s alleged injuries (see Novak v. Sisters of the Heart of Mary, 210 AD3d at 1106; Eskridge v. Diocese of Brooklyn, 210 AD3d at 1058). Moreover, this cause of action is not duplicative of the causes of action sounding in negligence (see Novak v. Sisters of the Heart of Mary, 210 AD3d at 1106; Eskridge v. Diocese of Brooklyn, 210 AD3d at 1058). Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was, in effect, pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for intentional infliction of emotional distress in the amended complaint insofar as asserted against them. The parties’ remaining contentions are without merit. IANNACCI, J.P., GENOVESI, VOUTSINAS and TAYLOR, JJ., concur. By Iannacci, J.P.; Genovesi, Voutsinas, Taylor, JJ. MAYA KAUL, res, v. BROOKLYN FRIENDS SCHOOL, app, ET AL., def — (Index No. 516971/21) Venable LLP, New York, NY (Michael J. Volpe and Doreen S. Martin of counsel), for appellant. Rheingold Giuffra Ruffo & Plotkin LLP, New York, NY (Sherri L. Plotkin and Jeremy Hellman of counsel), for respondent. In an action to recover damages for breach of contract, the defendant Brooklyn Friends School appeals from an order of the Supreme Court, Kings County (Deborah A. Kaplan, J.), dated March 31, 2022. The order, insofar as appealed from, denied that branch of the motion of the defendants Brooklyn Friends School, Mark Buenzle, and Robert Bowman which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against the defendant Brooklyn Friends School, and granted that branch of the plaintiff’s cross-motion which was pursuant to CPLR 3025 for leave to amend the complaint insofar as asserted against the defendant Brooklyn Friends School. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion of the defendants Brooklyn Friends School, Mark Buenzle, and Robert Bowman which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against the defendant Brooklyn Friends School is granted, and that branch of the plaintiff’s cross-motion which was pursuant to CPLR 3025 for leave to amend the complaint insofar as asserted against the defendant Brooklyn Friends School is denied as academic. In July 2021, the plaintiff commenced this action against the defendant Brooklyn Friends School (hereinafter BFS), among others, alleging, inter alia, that BFS breached its harassment policy contained in BFS’s student and family handbook, which resulted in injury to the plaintiff. BFS, along with the defendants Mark Buenzle and Robert Bowman (hereinafter collectively the defendants), moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. The plaintiff cross-moved pursuant to CPLR 3025 for leave to amend the complaint. In an order dated March 31, 2022, the Supreme Court, inter alia, denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against BFS, and granted that branch of the plaintiff’s cross-motion which was pursuant to CPLR 3025 for leave to amend the complaint insofar as asserted against BFS. BFS appeals. “[O]n a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant ‘bears the initial burden of [establishing], prima facie, that the time in which to sue has expired’” (Schearer v. Fitzgerald, 217 AD3d 980, 981, quoting Kogut v. Village of Chestnut Ridge, 214 AD3d 777, 778). “The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period” (Griffin v. Perrotti, 121 AD3d 1041, 1042; see Van Der Velde v. New York Prop. Underwriting Assn., 205 AD3d 970, 970-971). A cause of action sounding in breach of contract is governed by a six-year statute of limitations (see CPLR 213[2]; Rabinowitz v. Grosso, 216 AD3d 822, 822-823). The period “begins at the time of the breach, even when no damage occurs until later, and even though the injured party may be ignorant of the existence of the wrong or injury” (Houtenbos v. Fordune Assn., Inc., 200 AD3d 662, 666; see Ely-Cruikshank Co. v. Bank of Montreal, 81 NY2d 399, 402). Here, the defendants demonstrated, prima facie, that the time within which to commence this action had expired, inasmuch as the plaintiff failed to commence it within the six-year limitations period (see CPLR 213[2]). In opposition, the plaintiff failed to raise a question of fact. The plaintiff failed to establish that the statute of limitations was tolled, that the action was actually commenced within the applicable limitations period (see Van Der Velde v. New York Prop. Underwriting Assn., 205 AD3d at 971; Baratta v. Kozlowski, 94 AD2d 454, 458), or that the plaintiff’s cause of action was revived by the Child Victims Act (see CPLR 214-g; cf. Meyer v. State of New York, 213 AD3d 753, 756; Anonymous v. Castagnola, 210 AD3d 940). Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against BFS as time-barred. The parties’ remaining contentions are either academic in light of our determination or without merit. IANNACCI, J.P., GENOVESI, VOUTSINAS and TAYLOR, JJ., concur. By Duffy, J.P.; Chambers, Wooten, Dowling, JJ. RICHARD EVERETT, app, v. ROBERT C. EVERETT, res — (Index No. 51931/19) Brian R. Hoch, White Plains, NY, for appellant. Sarna & Associates, P.C., Upper Nyack, NY (James A. Sarna of counsel), for respondent. In an action pursuant to Business Corporation Law §630 to recover unpaid wages, the plaintiff appeals from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated February 4, 2022. The order granted the defendant’s motion for summary judgment dismissing the complaint and denied the plaintiff’s motion for summary judgment on the issue of liability. ORDERED that the order is affirmed, with costs. In 2019, the plaintiff commenced this action pursuant to Business Corporation Law §630 to recover unpaid wages arising out of the termination of his employment in October 2012 from a family-owned company in which the plaintiff was a shareholder. Thereafter, the defendant moved for summary judgment dismissing the complaint, and the plaintiff moved for summary judgment on the issue of liability. In an order dated February 4, 2022, the Supreme Court granted the defendant’s motion and denied the plaintiff’s motion. The plaintiff appeals. Business Corporation Law §630(a) imposes personal liability on the 10 largest shareholders of a closely held corporation for the payment of wages and salaries owed to, among others, its “employees.” The statute was enacted to protect those employed in “subordinate and humble capacities and to whom the hardship would be great, if their wages or salaries were not promptly paid” (Bristor v. Smith, 158 NY 157, 159; see Lindsey v. Winkler, 52 Misc 2d 1037, 1038 [Nassau Dist Ct, 2d Dist]; Kane v. Benson, 86 FRD 460, 462 [ED NY]). “The statutory provision, being penal in its nature, should receive a strict construction by the courts” (Bristor v. Smith, 158 NY at 158). Here, the defendant established, prima facie, that the plaintiff was not an employee within the meaning of Business Corporation Law §630, as the plaintiff held equity ownership and an executive position in the subject company since 1985 (see Depperman v. Chenango Val. Pet Foods, 201 AD2d 936; Herman v. Levanne, 77 Misc 2d 653 [Nassau Dist Ct, 1st Dist], affd 79 Misc 2d 799 [App Term, 2d Dept]). Moreover, the defendant established, prima facie, that the plaintiff was not entitled to the protections afforded under Business Corporation Law §630 because he failed to serve the defendant with notice of intent to hold the defendant liable within 180 days after the plaintiff ceased providing services to the subject company in October 2012 (see Ingvarsdottir v. Gaines, Gruner, Ponzini & Novick, LLP, 144 AD3d 1099, 1102). In opposition to the defendant’s prima facie showings, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint and denied the plaintiff’s motion for summary judgment on the issue of liability. DUFFY, J.P., CHAMBERS, WOOTEN and DOWLING, JJ., concur. By Iannacci, J.P.; Miller, Christopher, Wan, JJ. U.S. BANK NATIONAL ASSOCIATION, ETC., res, v. JAMES D. REDDY, ET AL., app, ET AL., def — (Index No. 605781/17) Charles Wallshein Esq., PLLC, Melville, NY, for appellants. Goodwin Procter LLP, New York, NY (Allison J. Schoenthal and Richard A. Sillett of counsel), for respondent. In an action to foreclose a mortgage, the defendants James D. Reddy, Donna D’Amato, and Christopher Reddy, sued herein as John Doe, appeal from two orders of the Supreme Court, Suffolk County (Howard H. Heckman, Jr., J.), both dated August 15, 2019. The first order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants James D. Reddy, Donna D’Amato, and Christopher Reddy, sued herein as John Doe, to dismiss those defendants’ answer and first counterclaim alleging breach of contract, and for an order of reference, and denied those branches of those defendants’ cross-motion which were for summary judgment dismissing the complaint insofar as asserted against them and on the issue of liability on their first counterclaim alleging breach of contract, and for an award of attorneys’ fees pursuant to Real Property Law §282. The second order, insofar as appealed from, granted the same relief to the plaintiff and referred the matter to a referee to ascertain and compute the amount due to the plaintiff. ORDERED that the first order is modified, on the law, (1) by deleting the provisions thereof granting those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants James D. Reddy, Donna D’Amato, and Christopher Reddy, sued herein as John Doe, to dismiss those defendants’ answer except with respect to the affirmative defense alleging lack of standing, and for an order of reference, and substituting therefor provisions denying those branches of the motion, and (2) by deleting the provision thereof denying that branch of the cross-motion of the defendants James D. Reddy, Donna D’Amato, and Christopher Reddy, sued herein as John Doe, which was for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision granting that branch of the cross-motion; as so modified, the first order is affirmed insofar as appealed from, so much of the second order as granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants James D. Reddy, Donna D’Amato, and Christopher Reddy, sued herein as John Doe, to dismiss those defendants’ answer except with respect to the affirmative defense alleging lack of standing, and for an order of reference, and appointed a referee to ascertain and compute the amount due to the plaintiff is vacated; and it is further, ORDERED that the appeal from so much of the second order as granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants James D. Reddy, Donna D’Amato, and Christopher Reddy, sued herein as John Doe, to dismiss those defendants’ answer except with respect to the affirmative defense alleging lack of standing, and for an order of reference, and appointed a referee to ascertain and compute the amount due to the plaintiff is dismissed as academic in light of our determination on the appeal from the first order; and it is further, ORDERED that the second order is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the defendants James D. Reddy, Donna D’Amato, and Christopher Reddy, sued herein as John Doe. On December 15, 2006, the defendants James D. Reddy and Donna D’Amato (hereinafter together the borrowers) executed a note in the sum of $452,000 in favor of Wells Fargo Bank, N.A. (hereinafter Wells Fargo). The note was secured by a mortgage on residential property located in Lindenhurst (hereinafter the premises). In February 2014, the plaintiff, successor in interest to Wells Fargo, commenced an action against the borrowers, among others, to foreclose the mortgage. By order dated December 21, 2015, the Supreme Court, inter alia, granted the plaintiff’s motion to discontinue the action. On March 30, 2017, the plaintiff commenced the instant action to foreclose the mortgage. The borrowers, along with their son, Christopher Reddy, as a “John Doe” defendant (hereinafter collectively the defendants), interposed an answer in which they asserted various affirmative defenses, including that the plaintiff lacked standing. The defendants also asserted several counterclaims, including a first counterclaim alleging breach of contract based on the plaintiff’s alleged breach of a “moratorium” agreement pursuant to which the borrowers’ obligation to make the monthly mortgage payments due under the subject mortgage loan was suspended for a period of time after Superstorm Sandy occurred on October 29, 2012. The plaintiff served a reply to the counterclaims. In February 2018, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to dismiss the defendants’ answer and first counterclaim, and for an order of reference. The defendants cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against them and on the issue of liability on their first counterclaim, and for an award of attorneys’ fees pursuant to Real Property Law §282. The Supreme Court, inter alia, granted those branches of the plaintiff’s motion, denied those branches of the defendants’ cross-motion, and referred the matter to a referee to ascertain and compute the amount due to the plaintiff. The defendants appeal. Contrary to the defendants’ contention, the plaintiff established, prima facie, its standing to commence the action by submitting, in support of its motion, a copy of the note, endorsed in blank, that was annexed to the complaint when it commenced the action (see U.S. Bank N.A. v. Lloyd-Lewis, 205 AD3d 838, 839; U.S. Bank N.A. v. Offley, 170 AD3d 1240, 1241). In opposition, the defendants failed to raise a triable issue of fact. “‘[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition. Alternatively, the plaintiff bears the burden of establishing, prima facie, that RPAPL 1304 is inapplicable, as the loan is not subject to the notice requirements set forth in RPAPL 1304′” (JP Morgan Chase v. Twersky, 202 AD3d 769, 770, quoting U.S. Bank Trust, N.A. v. Sadique, 178 AD3d 984, 985; see Wells Fargo Bank, N.A. v. Rodriguez, 210 AD3d 728, 730). RPAPL 1304(1) provides that “with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers…including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” Pursuant to RPAPL 1304(2), the required notices “shall be sent by such lender, assignee (including purchasing investor) or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage.” Further, a “home loan” is defined as a loan, inter alia, that is secured by a mortgage on real estate “which is or will be occupied by the borrower as the borrower’s principal dwelling” (id. §1304[6][a][1][iii]; see MLB Sub I, LLC v. Mathew, 202 AD3d 1078, 1080; U.S. Bank N.A. v. Shereshevsky, 198 AD3d 1000, 1001). Contrary to its contention, the plaintiff failed to establish, prima facie, that the subject loan was not a “home loan” and, thus, was not subject to the notice requirements of RPAPL 1304. In the uniform residential application for the loan, submitted by the plaintiff in support of its motion, the borrowers indicated that they intended to occupy the premises as their primary residence. Moreover, although the borrowers admitted that they each moved out of the premises and resided elsewhere for a period of time beginning in 2014, the fact that a borrower no longer occupies the premises as his or her principal dwelling does not relieve the plaintiff of the obligation to send RPAPL 1304 notice prior to commencing a foreclosure action (see Wells Fargo Bank, N.A. v. Rodriguez, 210 AD3d at 731; Nationstar Mtge., LLC v. Jong Sim, 197 AD3d 1178, 1180). The plaintiff also failed to demonstrate, prima facie, its compliance with RPAPL 1304, in that it failed to establish proof of the requisite mailing. The affidavit of Sarah Stonehocker, a vice president of loan documentation for Wells Fargo, the plaintiff’s loan servicer, was insufficient to establish that the notice was sent to the borrowers in the manner required by RPAPL 1304. Stonehocker averred that she had personal knowledge of Wells Fargo’s record-keeping practices and procedures, but she did not attest to having personal knowledge of the record-keeping practices and standard office mailing procedures of Walz Facility (hereinafter Walz), the entity, that according to tracking information printouts, mailed the RPAPL 1304 notices (see U.S. Bank N.A. v. Adams, 202 AD3d 867, 869; Heartwood 2, LLC v. DeBrosse, 197 AD3d 1152, 1153; Bank of N.Y. Mellon v. Gordon, 171 AD3d 197, 209). Nor did she attest that Walz’s records were incorporated into Wells Fargo’s own records or routinely relied upon in its business (see U.S. Bank N.A. v. Adams, 202 AD3d at 869; Heartwood 2, LLC v. DeBrosse, 197 AD3d at 1153). Thus, Stonehocker’s affidavit failed to establish “proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” (U.S. Bank N.A. v. Adams, 202 AD3d at 869 [internal quotation marks omitted]; see Heartwood 2, LLC v. DeBrosse, 197 AD3d at 1153). Moreover, the plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304 since it failed to demonstrate that it sent an individually addressed RPAPL 1304 notice to each borrower, as required by the statute (see U.S. Bank N.A. v. Krakoff, 199 AD3d 859, 863; Wells Fargo Bank, N.A. v. Yapkowitz, 199 AD3d 126, 134; see also HSBC Bank USA, N.A. v. DiBenedetti, 205 AD3d 687, 690; Deutsche Bank Natl. Trust Co. v. Loayza, 204 AD3d 753, 755). Although this issue is raised for the first time on appeal, it may be reached as it involves a question of law that appears on the face of the record and could not have been avoided if brought to the court’s attention at the proper juncture (see Bank of N.Y. Mellon v. Greene, 210 AD3d 1042, 1044; Wells Fargo Bank, N.A. v. Davidson, 202 AD3d 880, 882). The record shows that the RPAPL 1304 notice sent to the borrowers was jointly addressed to both of them. For the same reason, the defendants were entitled to summary judgment dismissing the complaint insofar as asserted against them (see Wells Fargo Bank, N.A. v. Yapkowitz, 199 AD3d at 134; Deutsche Bank Natl. Trust Co. v. Loayza, 204 AD3d at 755). Accordingly, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants, to dismiss their answer except with respect to the affirmative defense alleging lack of standing, and for an order of reference, and granted that branch of the defendants’ cross-motion which was for summary judgment dismissing the complaint insofar as asserted against them. However, the borrowers are not entitled to an award of attorneys’ fees pursuant to Real Property Law §282, as they have not established that they are a “prevailing party” within the meaning of that statute (Bank of Am., N.A. v. Destino, 138 AD3d 654, 655; see generally Matter of J.P. & Assoc. Props. Corp. v. Krautter, 128 AD3d 963, 964). Moreover, contrary to the defendants’ contention, they failed to establish prima facie entitlement to summary judgment on the issue of liability on their first counterclaim alleging breach of contract. To establish prima facie entitlement to judgment as a matter of law on a cause of action alleging breach of contract, a party is required to demonstrate the existence of a contract, the party’s performance under the contract, the other party’s breach of the contract, and that the party suffered harm as a result (see Sammy v. First Am. Tit. Ins. Co., 205 AD3d 949, 957). “‘To establish the existence of an enforceable agreement,’ there must be ‘an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound’” (Matter of Civil Serv. Empls. Assn., Inc. v. Baldwin Union Free School Dist., 84 AD3d 1232, 1233-1234, quoting Kowalchuk v. Stroup, 61 AD3d 118, 121). The consideration necessary to support a contract claim can consist of either a benefit to the promisor or a detriment to the promisee (see Dee v. Rakower, 112 AD3d 204, 210; Halliwell v. Gordon, 61 AD3d 932, 933). “[F]orbearance to do an act that a person has a legal right to do constitutes consideration” (Halliwell v. Gordon, 61 AD3d at 934; see Dee v. Rakower, 112 AD3d at 210; Venables v. Sagona, 85 AD3d 904, 905). Here, the defendants failed to demonstrate the existence of an enforceable contract, as the evidence failed to show that any consideration was given in exchange for the plaintiff’s offer pursuant to a “disaster moratorium,” to suspend monthly payments on the subject mortgage loan for a certain period of time, not to report the borrowers to credit reporting agencies as delinquent for failing to make payments during the moratorium period, and to defer the accrued loan payments to the end of the loan period (see Loft Rest. Assoc. v. McDonagh, 209 AD2d 482, 483). Moreover, under the circumstances, the record does not support any other basis to grant the defendants the relief requested (see Swerdloff v. Mobil Oil Corp., 74 AD2d 258, 261). Accordingly, the Supreme Court properly granted that branch of the plaintiff’s motion which was to dismiss the defendants’ first counterclaim and denied that branch of the defendants’ cross-motion which was for summary judgment on the issue of liability on their first counterclaim. IANNACCI, J.P., MILLER, CHRISTOPHER and WAN, JJ., concur. By Iannacci, J.P.; Chambers, Christopher, Warhit, JJ. ROBERT JOHNSON, ET AL., app, v. CASCADE FUNDING MORTGAGE TRUST 2017-1, res, ET AL., def — (Index No. 500932/19) Law Office of Frank J. Haupel, PLLC, Rye Brook, NY, for appellants. McCarter & English, LLP, New York, NY (Adam M. Swanson and Trevor J. Larrubia of counsel), for respondent. In an action, inter alia, pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage and for declaratory relief, the plaintiffs appeal from an order of the Supreme Court, Putnam County (Victor G. Grossman, J.), dated March 22, 2021. The order, insofar as appealed from, denied that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against the defendant Cascade Funding Mortgage Trust 2017-1, in effect, denied that branch of the plaintiffs’ motion which was for summary judgment dismissing that defendant’s counterclaim, granted that branch of that defendant’s cross-motion which was to dismiss the complaint insofar as asserted against it, and searched the record and awarded summary judgment to that defendant declaring that the subject mortgage was not null and void. ORDERED that the order is modified, on the law, by deleting the provisions thereof (1) denying those branches of the plaintiffs’ motion which were for summary judgment on the first and second causes of action insofar as asserted against the defendant Cascade Funding Mortgage Trust 2017-1, (2) in effect, denying that branch of the plaintiffs’ motion which was for summary judgment dismissing the counterclaim of the defendant Cascade Funding Mortgage Trust 2017-1, (3) granting those branches of the cross-motion of the defendant Cascade Funding Mortgage Trust 2017-1 which were to dismiss the first and second causes of action insofar as asserted against it, and (4) searching the record and awarding summary judgment to the defendant Cascade Funding Mortgage Trust 2017-1 declaring that the subject mortgage was not null and void; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Putnam County, for further proceedings in accordance herewith. On October 25, 2006, the plaintiffs, Robert Johnson and Christine Johnson (hereinafter together the Johnsons), executed a note in the amount of $550,000 in favor of nonparty Flagstar Bank, FSB (hereinafter Flagstar). The note was secured by a mortgage on certain real property located in Putnam Valley. On September 26, 2011, Flagstar commenced an action to foreclose the mortgage against the Johnsons, among others (hereinafter the 2011 foreclosure action), and elected to call due the entire amount secured by the mortgage. The mortgage was assigned several times during the pendency of the 2011 foreclosure action, and on October 4, 2017, it was assigned to Cascade Funding Mortgage Trust 2017-1 (hereinafter Cascade). In an order dated March 5, 2019, the Supreme Court granted dismissal of the 2011 foreclosure action on the ground that Flagstar failed to comply with RPAPL 1304. In June 2019, the Johnsons commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage, for a judgment declaring that the mortgage is unenforceable as against them (first and second causes of action), and for an award of attorneys’ fees pursuant to Real Property Law §282 (third cause of action) against Cascade, among others. On September 4, 2019, Cascade interposed an answer, asserting, inter alia, a counterclaim to foreclose the mortgage. The Johnsons replied to the counterclaim, asserting various affirmative defenses, including that the counterclaim was time-barred. Thereafter, the Johnsons moved, among other things, for summary judgment on the complaint insofar as asserted against Cascade and dismissing the counterclaim. Cascade opposed the motion and cross-moved, inter alia, to dismiss the complaint insofar as asserted against it for failure to state a cause of action. In an order dated March 22, 2021, the Supreme Court, inter alia, denied that branch of the Johnsons’ motion which was for summary judgment on the complaint insofar as asserted against Cascade, in effect, denied that branch of the Johnsons’ motion which was for summary judgment dismissing the counterclaim, granted that branch of the cross-motion of Cascade which was to dismiss the complaint insofar as asserted against it, and searched the record and awarded summary judgment to Cascade declaring that the subject mortgage was not null and void. The Johnsons appeal. RPAPL 1501(4) provides that “[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage…has expired, any person having an estate or interest in the real property subject to such encumbrance may maintain an action…to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom” (see Bank of Am., N.A. v. Scher, 205 AD3d 985, 987). An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]; Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 AD3d 985, 986; Nationstar Mtge., LLC v. Weisblum, 143 AD3d 866, 867). “‘[E]ven if 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’” (Nationstar Mtge., LLC v. Weisblum, 143 AD3d at 867, quoting EMC Mtge. Corp. v. Patella, 279 AD2d 604, 605). “An acceleration of a mortgage debt can occur when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due” (Wells Fargo Bank, N.A. v. Lefkowitz, 171 AD3d 843, 844 [internal quotation marks omitted]). Here, in support of their motion, the Johnsons established, prima facie, that the mortgage debt was accelerated on September 26, 2011, when Flagstar commenced the 2011 foreclosure action and elected to call due the entire amount secured by the mortgage in the complaint (see U.S. Bank N.A. v. Outlaw, 217 AD3d 721, 722; U.S. Bank N.A. v. Doura, 204 AD3d 721, 723). The Johnsons further demonstrated, prima facie, that since the subsequent foreclosure action, in the form of a counterclaim, was commenced on September 4, 2019, more than six years later, it was time-barred (see CPLR 213[4]; U.S. Bank N.A. v. Outlaw, 217 AD3d at 722-723; U.S. Bank N.A. v. Doura, 204 AD3d at 723). In opposition, Cascade argued that this action was timely commenced pursuant to CPLR 205(a), as it was commenced within six months of the Supreme Court granting dismissal of the 2011 foreclosure action. However, the recently enacted Foreclosure Abuse Prevention Act (hereinafter “FAPA”) (see L 2022, ch 821), replaced the savings provision of CPLR 205(a) with CPLR 205-a in actions upon instruments described in CPLR 213(4) (see id. §205[c]). Under CPLR 205-a(a), “[i]f an action upon an instrument described under [CPLR 213(4)] is timely commenced and is terminated in any manner other than a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for any form of neglect, including, but not limited to those specified in [CPLR 3126(3)], [CPLR 3215], [CPLR 3216] and [CPLR 3404]…, or upon a final judgment upon the merits, the original plaintiff…may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months following the termination, provided that the new action would have been timely commenced within the applicable limitations period prescribed by law at the time of the commencement of the prior action and that service upon the original defendant is completed within such six-month period.” CPLR 205-a(a) further provides that “[f]or purposes of this subdivision: 1. a successor in interest or an assignee of the original plaintiff shall not be permitted to commence the new action, unless pleading and proving that such assignee is acting on behalf of the original plaintiff.” Here, the Supreme Court granted dismissal of the 2011 foreclosure action for failure to comply with RPAPL 1304 on March 5, 2019. However, while Cascade established that it interposed its counterclaim to foreclose the mortgage within the six-month period provided under CPLR 205-a on September 4, 2019, Cascade is an assignee of the original plaintiff and has not pleaded nor proved that it is acting on behalf of the original plaintiff. Therefore, Cascade is not entitled to the benefit of the savings provision of CPLR 205-a. However, Cascade challenges the constitutionality of FAPA, contending, inter alia, that retroactive application of FAPA would violate the Due Process Clause of the United States Constitution. Inasmuch as the Supreme Court did not consider the issues relating to the constitutionality of FAPA in determining the branches of the Johnsons’ motion and Cascade’s cross-motion which were addressed to the first and second causes of action insofar as asserted against Cascade and Cascade’s counterclaim, we remit the matter to the Supreme Court, Putnam County, for consideration thereof, after any further briefing, argument, and hearing that the court deems appropriate, and for a new determination of those branches of the motion and cross-motion thereafter. However, contrary to the Johnsons’ contention, they are not entitled to an award of attorneys’ fees pursuant to Real Property Law §282 in connection with the Supreme Court granting dismissal of the 2011 foreclosure action, as they have not established that they are a prevailing party within the meaning of that statute (see U.S. Bank N.A. v. Krakoff, 199 AD3d 859, 863). Accordingly, the court properly denied that branch of the Johnsons’ motion which was for summary judgment on the third cause of action and properly granted that branch of Cascade’s cross-motion which was to dismiss the third cause of action insofar as asserted against it. Moreover, the Johnsons’ contentions that any alleged failure to comply with a condition precedent deprived Cascade of the ability to take advantage of CPLR 205(a) (see generally HSBC Bank USA, N.A. v. Perry, 178 AD3d 685, 686) and that because the Supreme Court granted dismissal of the 2011 foreclosure action for failure to comply with RPAPL 1304, Cascade was not entitled to the protection of CPLR 205(a) (see CitiMortgage, Inc. v. Moran, 188 AD3d 407, 408; Sabbatini v. Galati, 43 AD3d 1136, 1139), are without merit. IANNACCI, J.P., CHAMBERS, CHRISTOPHER and WARHIT, JJ., concur. By Dillon, J.P.; Chambers, Maltese, Warhit, JJ. ELIZABETH CELLA, ET AL., app, v. SUFFOLK COUNTY, res — (Index No. 620580/17) Government Justice Center, Inc., Albany, NY (Cameron J. Macdonald of counsel), for appellants. Stagg Wabnik Law Group LLP, Garden City, NY (Thomas E. Stagg of counsel), for respondent. In a putative class action, inter alia, for declaratory relief, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Sanford Neil Berland, J.), dated December 31, 2020. The order, insofar as appealed from, denied the plaintiffs’ motion for summary judgment on the cause of action for declaratory relief and granted the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint. ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the cause of action for declaratory relief, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs. In October 2017, the plaintiffs, who all own real property located in Suffolk County, commenced this putative class action against the County, alleging that the fees imposed by the County Clerk for tax map verifications performed by the Real Property Tax Service Agency (hereinafter the Agency) were illegal unauthorized taxes. The fees, which are required under Suffolk County Administrative Code §A18-3(G), were increased in 2015 and 2016 from $60 per real estate parcel to $200 per real estate parcel, with an additional $300 fee for verifications on certain mortgage documents. The plaintiffs sought, inter alia, a refund of the tax map verification fees that were already paid, as well as a judgment declaring that the tax map verification fees were unlawful, invalid, and unenforceable. In April 2018, the plaintiffs moved for summary judgment on the cause of action for declaratory relief and, in August 2018, the County moved pursuant to CPLR 3211(a) to dismiss the complaint. By order dated December 31, 2020, the Supreme Court denied the plaintiffs’ motion and granted the County’s motion. The plaintiffs appeal. “Municipalities and administrative agencies engaged in regulatory activity can assess fees that need not be legislatively authorized as long as ‘the fees charged [are] reasonably necessary to the accomplishment of the regulatory program’” (Matter of Walton v. New York State Dept. of Correctional Servs., 13 NY3d 475, 485, quoting Suffolk County Bldrs. Assn. v. County of Suffolk, 46 NY2d 613, 619; see Jewish Reconstructionist Synagogue of N. Shore v. Incorporated Vil. of Roslyn Harbor, 40 NY2d 158, 163; Matter of Torsoe Bros. Constr. Corp. v. Board of Trustees of Inc. Vil. of Monroe, 49 AD2d 461, 465). However, “[f]ees cannot be charged to generate revenue or to offset the cost of other governmental functions” (Matter of Harriman Estates at Aquebogue, LLC v. Town of Riverhead, 151 AD3d 854, 856; see Watergate II Apts. v. Buffalo Sewer Auth., 46 NY2d 52, 58). “Without the safeguard of a requirement that fees bear a relation to average costs, a [municipality] would be free to incur, in the individual case, not only necessary costs but also any which it, in its untrammeled discretion, might think desirable or convenient, no matter how oppressive or discouraging they might in fact be for applicants” (Jewish Reconstructionist Synagogue of N. Shore v. Incorporated Vil. of Roslyn Harbor, 40 NY2d at 163). Here, the plaintiffs established, prima facie, through the submission of budget figures, that the tax map verification fees imposed by the County were not reasonably necessary to the accomplishment of the tax map verification process and were used to defray the general cost of government (see American Ins. Assn. v. Lewis, 50 NY2d 617, 622-623; Matter of Torsoe Bros. Constr. Corp. v. Board of Trustees of Inc. Vil. of Monroe, 49 AD2d at 464; Bon Air Estates v. Village of Suffern, 32 AD2d 921, 922-923). However, in opposition, the County raised a triable issue of fact regarding certain expenses incurred by the Agency in the performance of its tax map verification function that were not listed in the budgets submitted by the plaintiffs (see Orange & Rockland Util. v. Town of Clarkstown, 80 AD2d 846, 847). Thus, the Supreme Court correctly denied the plaintiffs’ motion for summary judgment on the cause of action for declaratory relief. However, the Supreme Court should have denied that branch of the County’s motion which was to dismiss the cause of action for declaratory relief pursuant to CPLR 3211(a)(7). On a motion to dismiss a complaint pursuant to CPLR 3211, “[w]e 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). Contrary to the County’s contention, the tax map verification fees were not expressly authorized by the State Legislature through the 2019 revisions to CPLR 8019 and 8021. A tax is exacted from a citizen to “defray the general costs of government unrelated to any particular benefit received by that citizen” (Matter of Walton v. New York State Dept. of Correctional Servs., 13 NY3d at 485). “The State Constitution vests the taxing power in the state legislature and authorizes the legislature to delegate that power to local governments” (Expedia, Inc. v. City of N.Y. Dept. of Fin., 22 NY3d 121, 126; see NY Const, art XVI, §1). “‘[T]he delegation of any part of [the] power [of taxation] to a subdivision of the State must be made in express terms,’ and the delegation of any form of taxation authority ‘cannot be inferred’” (Boening v. Nassau County Dept. of Assessment, 157 AD3d 757, 759, quoting County Sec. v. Seacord, 278 NY 34, 37). “The legislature must describe with specificity the taxes authorized by any enabling statute. In turn, local governments can only levy and collect taxes within the expressed limitations of specific enabling legislation” (County of Nassau v. Expedia, Inc., 189 AD3d 1346, 1348 [citations omitted]). Here, while the revisions to CPLR 8019 and 8021 reference the County’s authority to collect tax map verification fees (see CPLR 8019[a], 8021[f][1][b]), the revisions do not provide an express delegation of taxing authority, nor do they provide for a review mechanism, as is constitutionally required (see NY Const, art XVI, §1; Greater Poughkeepsie Lib. Dist. v. Town of Poughkeepsie, 81 NY2d 574, 580). The Supreme Court properly granted that branch of the County’s motion which was to dismiss the cause of action seeking a refund of tax map verification fees that were already paid since the plaintiffs did not adequately allege that they made the payments under a formal protest or duress (see Video Aid Corp. v. Town of Wallkill, 85 NY2d 663, 667; City of Rochester v. Chiarella, 58 NY2d 316, 323). Accordingly, we modify the order so as to deny that branch of the County’s motion which was pursuant to CPLR 3211(a) to dismiss the cause of action for declaratory relief. The plaintiffs’ remaining contention need not be reached in light of our determination. DILLON, J.P., CHAMBERS, MALTESE and WARHIT, JJ., concur. By Duffy, J.P.; Maltese, Taylor, Ventura, JJ. MICHAEL MEDEIROS, res, v. SCARSDALE UNION FREE SCHOOL DISTRICT BOARD OF EDUCATION, ET AL., app — (Index No. 59697/20) Bond, Schoeneck & King, PLLC, Garden City, NY (John F. McKay III, Howard Miller, and Brittany R. Frank of counsel), for appellants. Marsh Law Firm, PLLC, New York, NY (Jennifer Freeman of counsel), for respondent. In an action, inter alia, to recover damages for negligent hiring, retention, and supervision, the defendants appeal from an order of the Supreme Court, Nassau County (Part CVA-R) (Steven M. Jaeger, J.), dated September 29, 2021. The order, insofar as appealed from, denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the first cause of action. ORDERED that the order is affirmed insofar as appealed from, with costs. On or about August 24, 2020, the plaintiff commenced this action against the defendants pursuant to the Child Victims Act (see CPLR 214-g), alleging, inter alia, that while he was a student attending the defendant Scarsdale High School (hereinafter the School), he was sexually abused by a cafeteria worker at the School. Thereafter, the defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated September 29, 2021, the Supreme Court, among other things, denied that branch of the defendants’ motion which was to dismiss the first cause of action, seeking to recover damages for negligent hiring, retention, and supervision. The defendants appeal. On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a 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 Sullivan v. Port Wash. Union Free Sch. Dist., 213 AD3d 966, 967). Causes of action alleging negligence based upon negligent hiring, retention, or supervision are not statutorily required to be pleaded with specificity (see Sullivan v. Port Wash. Union Free Sch. Dist., 213 AD3d at 967; Belcastro v. Roman Catholic Diocese of Brooklyn, N.Y., 213 AD3d 800, 801; see also CPLR 3013). Here, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action. The complaint alleged that the plaintiff was a student at the School, which was operated by the defendant Scarsdale Union Free School District Board of Education (hereinafter the School Board). The complaint also alleged, inter alia, that the cafeteria worker was an employee or agent of the School Board, and the defendants had knowledge that the cafeteria worker was sexually abusing the plaintiff or had the propensity to commit such abuse, and the abuse of the plaintiff occurred in the School when the plaintiff was approximately 14 to 16 years old and during times at which the plaintiff was under the defendants’ supervision, care, custody, and control, including during the lunch period and when the plaintiff was working in the School kitchen. Thus, accepting the allegations in the complaint as true and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently states a cause of action to recover damages for negligent hiring, retention, and supervision of the cafeteria worker, and also inadequate supervision of the plaintiff (see Belcastro v. Roman Catholic Diocese of Brooklyn, N.Y., 213 AD3d at 802; Novak v. Sisters of the Heart of Mary, 210 AD3d 1104, 1105). Accordingly, we affirm the order insofar as appealed from. DUFFY, J.P., MALTESE, TAYLOR and VENTURA, JJ., concur. By Duffy, J.P.; Maltese, Taylor, Ventura, JJ. IN THE MATTER OF JIASIA M. PETERSON, res, v. MICHAEL C. MCCALL, app — (Index No. F-1475-22) Carol Kahn, New York, NY, for appellant. In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Dutchess County (Jeffrey C. Martin, J.), dated August 4, 2022. The order denied the father’s objections to a temporary order of support of the same court (Steven Kaufman, S.M.) dated May 24, 2022, which directed the father to pay child support in the sum of $126 per week, and an order of the same court (Steven Kaufman, S.M.) dated June 10, 2022, which, upon the parties’ consent, inter alia, directed the father to pay child support in the sum of $100 per week. ORDERED that the order dated August 4, 2022, is affirmed, without costs or disbursements. The Family Court properly denied the father’s objections to a temporary order of support dated May 24, 2022, and an order of support on consent dated June 10, 2022, on the procedural ground that he failed to file proof of service demonstrating that a copy of the objections were properly served upon the mother. Family Court Act §439(e) requires that “[a] party filing objections…serve a copy of such objections upon the opposing party” and that “[p]roof of service upon the opposing party…be filed with the court at the time of filing of objections and any rebuttal.” Here, it is undisputed that the father did not file the requisite proof of service inasmuch as no affidavit of service was filed with the court (see CPLR 306[a], [d]). By failing to file proof of service, the father failed to fulfill a condition precedent for Family Court review of his objections, and therefore, he failed to exhaust the Family Court procedure for review of his objections (see Matter of Hamid v. Ramroop, 206 AD3d 913, 914; Matter of Ishmael A.A.-S. v. Sacha C., 169 AD3d 662, 663). DUFFY, J.P., MALTESE, TAYLOR and VENTURA, JJ., concur. By Dillon, J.P.; Chambers, Christopher, Warhit, JJ. IN THE MATTER OF PALLAVI SRIVASTAVA, res, v. RANA DUTTA, app — (Index No. F-10149-21) Saltzman Chetkof & Rosenberg LLP, Garden City, NY (Lee Rosenberg and Neelam B. Bhagrath of counsel), for appellant. Mangi & Graham, LLP, Westbury, NY (James J. Graham of counsel), for respondent. In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County (Joy M. Watson, J.), dated September 28, 2022. The order denied the father’s objections to an order of the same court (Tomasina C. Mastroianni, S.M.) dated March 30, 2022, which, after a hearing, granted the mother’s petition for an upward modification of the father’s child support obligation and directed the father to pay child support in the sum of $1,522.92 per month. ORDERED that the order dated September 28, 2022, is affirmed, with costs. The mother and the father have one child together. In a judgment entered October 9, 2015, the Supreme Court, inter alia, directed the father to pay child support in the sum of $878.92 per month. In January 2021, the mother commenced this proceeding in the Family Court for an upward modification of the father’s child support obligation. Following a hearing, in an order dated March 30, 2022, a Support Magistrate granted the mother’s petition and directed the father to pay child support in the sum of $1,522.92 per month, as well as 50% of the child’s educational and tutoring expenses. In an order dated September 28, 2022, the court denied the father’s objections to the Support Magistrate’s order. The father appeals. “‘The [Child Support Standards Act] sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling’” (Matter of Peddycoart v. MacKay, 145 AD3d 1081, 1083, quoting Matter of Freeman v. Freeman, 71 AD3d 1143, 1144). “Where, as here, the combined parental income exceeds the statutory cap, in fixing the basic child support obligation on income over the cap, the court has the discretion to apply the factors set forth in Family Court Act §413(1)(f), or to apply the statutory percentages, or to apply both” (Matter of Good v. Ricardo, 189 AD3d 830, 831; see Family Ct Act §413[1][c][3]). The court must “articulate its reason or reasons for [that determination], which should reflect a careful consideration of the stated basis for its exercise of discretion, the parties’ circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage” (Matter of Fanelli v. Orticelli, 178 AD3d 700, 702 [internal quotation marks omitted]). “In addition to providing a record explanation for deviating or not deviating from the statutory formula, a court must relate that record articulation to the factors set forth in Domestic Relations Law §240(1-b)(f)” (Hepheastou v. Spaliaras, 201 AD3d 793, 794-795 [internal quotation marks omitted]). “The court may modify an order of child support…upon a showing of a substantial change in circumstances” (Family Ct Act §451[3][a]). Additionally, unless the parties have specifically opted out, “[s]ection 451 of the Family Court Act permits a court to modify an order of child support where (1) either party’s gross income has changed by 15% or more since the order was entered or modified, or (2) three years…have passed since the order was entered, last modified, or adjusted” (Matter of Good v. Ricardo, 189 AD3d at 831, citing Family Ct Act §451[3][b][i], [ii]). Here, the Family Court properly denied the father’s objections to the Support Magistrate’s order. Three years had passed since the order of support was made, authorizing the court to consider modification of the father’s child support obligation (see Family Ct Act §451[3][b][i], [ii]; Matter of Good v. Ricardo, 189 AD3d at 831). Moreover, the father’s objections to the Support Magistrate’s determination to apply the child support percentage to the combined parental income in excess of the statutory cap were without merit. The Support Magistrate engaged in a thorough analysis of the parties’ financial situation, including the parties’ considerable income and the child’s needs. Moreover, the Support Magistrate’s determination that the father’s testimony regarding his finances lacked credibility was supported by the record and will not be disturbed (see Matter of Sinzieri v. Kaminsky, 218 AD3d 592, 592; Matter of Glaudin v. Glaudin, 213 AD3d 762, 763). Under these circumstances, the Support Magistrate providently exercised her discretion in applying the child support percentage to the parties’ income over the statutory cap (see Matter of Yaroshevsky v. Yaroshevsky, 219 AD3d 609; Moradi v. Buhl, 201 AD3d 928, 929; Bari v. Bari, 200 AD3d 835; Matter of Ward v. Hall, 188 AD3d 1222, 1224). The father’s objections to paying 50% of the child’s educational and tutoring expenses were also properly denied (see Abayomi v. Guevara, 215 AD3d 720, 721; Matter of Weissbach v. Weissbach, 169 AD3d 702, 704). The father’s remaining contentions are either without merit or improperly raised for the first time on appeal. DILLON, J.P., CHAMBERS, CHRISTOPHER and WARHIT, JJ., concur. By Barros, J.P.; Iannacci, Chambers, Miller, JJ. U.S. BANK NATIONAL ASSOCIATION, ETC., res, v. NELCIDA ARMAND, app, ET AL., def — (Index No. 69087/15) Marie A. Normil, Freeport, NY, for appellant. McCalla Raymer Leibert Pierce, LLC, New York, NY (Daniel S. LoPresti of counsel), for respondent. In an action to foreclose a mortgage, the defendant Nelcida Armand appeals from (1) an order of the Supreme Court, Westchester County (Gerald E. Loehr, J.), dated January 25, 2019, (2) an order of the same court dated August 8, 2019, and (3) an order of the same court also dated August 8, 2019. The order dated January 25, 2019, insofar as appealed from, in effect, denied that defendant’s motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction, granted that branch of the plaintiff’s motion which was pursuant to CPLR 306-b to extend the time to serve that defendant with the summons and complaint, and denied that branch of that defendant’s cross-motion which was pursuant to CPLR 306-b to dismiss the complaint insofar as asserted against her. The first order dated August 8, 2019, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Nelcida Armand, to strike that defendant’s answer, and for an order of reference, and denied that defendant’s cross-motion for summary judgment dismissing the complaint insofar as asserted against her and for an award of attorneys’ fees pursuant to Real Property Law §282. The second order dated August 8, 2019, insofar as appealed from, granted the same relief to the plaintiff and referred the matter to a referee to compute the amount due to the plaintiff. Motion by the plaintiff to dismiss the appeals from the orders on the ground that the right of direct appeal therefrom terminated with the entry of an order and judgment of foreclosure and sale in the action. By decision and order on motion dated January 21, 2022, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof. Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, and upon the argument of the appeals, it is ORDERED that the motion is granted; and it is further, ORDERED that the appeals are dismissed, without costs or disbursements. The appeals from the order dated January 25, 2019, and the orders dated August 8, 2019, must be dismissed because the right of direct appeal therefrom terminated with the entry of an order and judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1]; U.S. Bank N.A. v. Armand, ___ AD3d ___ [Appellate Division Docket No. 2020-9744; decided herewith]). BARROS, J.P., IANNACCI, CHAMBERS and MILLER, JJ., concur. By Barros, J.P.; Iannacci, Chambers, Miller, JJ. U.S. BANK NATIONAL ASSOCIATION, ETC., res, v. NELCIDA ARMAND, app, ET AL., def — (Index No. 69087/15) Marie A. Normil, Freeport, NY, for appellant. McCalla Raymer Leibert Pierce, LLC, New York, NY (Daniel S. LoPresti of counsel), for respondent. In an action to foreclose a mortgage, the defendant Nelcida Armand appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Westchester County (William J. Giacomo, J.), dated October 21, 2020. The order and judgment of foreclosure and sale, insofar as appealed from, upon an order of the same court (Gerald E. Loehr, J.) dated January 25, 2019, inter alia, in effect, denying that defendant’s motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction, granting that branch of the plaintiff’s motion which was pursuant to CPLR 306-b to extend the time to serve that defendant with the summons and complaint, and denying that branch of that defendant’s cross-motion which was pursuant to CPLR 306-b to dismiss the complaint insofar as asserted against her, upon an order of the same court (Gerald E. Loehr, J.) dated August 8, 2019, inter alia, granting those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Nelcida Armand, to strike that defendant’s answer, and for an order of reference, and denying that defendant’s cross-motion for summary judgment dismissing the complaint insofar as asserted against her and for an award of attorneys’ fees pursuant to Real Property Law §282, upon an order of the same court (Gerald E. Loehr, J.) also dated August 8, 2019, inter alia, granting the same relief to the plaintiff and referring the matter to a referee to compute the amount due to the plaintiff, and upon an order of the same court (William J. Giacomo, J.) dated October 21, 2020, inter alia, granting those branches of the plaintiff’s motion which were to confirm the referee’s report and for a judgment of foreclosure and sale and denying the cross-motion of the defendant Nelcida Armand, inter alia, to reject the referee’s report, granted those branches of the plaintiff’s motion which were to confirm the referee’s report and for a judgment of foreclosure and sale, confirmed the referee’s report, and directed the sale of the subject property. ORDERED that the order and judgment of foreclosure and sale is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Nelcida Armand, to strike that defendant’s answer, and for an order of reference are denied, that branch of that defendant’s cross-motion which was for summary judgment dismissing the complaint insofar as asserted against her is granted, those branches of the plaintiff’s motion which were to confirm the referee’s report and for a judgment of foreclosure and sale are denied as academic, and the orders dated August 8, 2019, and October 21, 2020, are modified accordingly. On July 19, 2006, the defendant Nelcida Armand (hereinafter the defendant) executed a note in the sum of $328,000 in favor of Wilmington Finance, Inc. (hereinafter Wilmington). The note was secured by a mortgage on residential property located in Mount Vernon. By an assignment of mortgage dated May 29, 2008, Mortgage Electronic Registration Systems, Inc., as nominee for Wilmington, assigned the mortgage to the plaintiff. On July 21, 2008, the plaintiff commenced an action (hereinafter the 2008 action) against the defendant, among others, to foreclose the mortgage. According to the parties, the plaintiff either abandoned or discontinued that action. On December 9, 2013, the plaintiff commenced a second action (hereinafter the 2013 action) to foreclose the mortgage. In an order dated June 24, 2015, the Supreme Court directed dismissal of the 2013 action pursuant to 22 NYCRR 202.27(b) and (c). On November 5, 2015, the plaintiff commenced this action against the defendant, among others, to foreclose the mortgage. On December 10, 2015, the defendant served an answer in which she asserted various affirmative defenses, including lack of personal jurisdiction, failure to comply with RPAPL 1303 and 1304 and CPLR 3012-b, and expiration of the statute of limitations. On February 9, 2016, the defendant moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction based on improper service. In an order dated May 25, 2017, the Supreme Court directed a hearing to determine whether the defendant was properly served. On August 1, 2018, the plaintiff moved, inter alia, pursuant to CPLR 306-b to extend the time to serve the defendant with the summons and complaint. The defendant cross-moved, among other things, pursuant to CPLR 306-b to dismiss the complaint insofar as asserted against her. The hearing to determine the validity of service of process was held on January 25, 2019, after which, in an order dated the same day, the Supreme Court, inter alia, determined that the defendant was not properly served, granted that branch of the plaintiff’s motion which was pursuant to CPLR 306-b to extend the time to serve the defendant, in effect, denied the defendant’s motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her, and denied that branch of the defendant’s cross-motion which was pursuant to CPLR 306-b to dismiss the complaint insofar as asserted against her. The plaintiff then served the defendant with process on February 13, 2019. In April 2019, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. The defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against her on the ground, among other things, that the action was time-barred, and for an award of attorneys’ fees pursuant to Real Property Law §282. In an order dated August 8, 2019, the Supreme Court, inter alia, granted those branches of the plaintiff’s motion and denied the defendant’s cross-motion. In an separate order also dated August 8, 2019, the court, among other things, granted the same relief to the plaintiff and referred the matter to a referee to compute the amount due to the plaintiff. Thereafter, the plaintiff moved, inter alia, to confirm the referee’s report and for a judgment of foreclosure and sale, and the defendant cross-moved, among other things, to reject the referee’s report. In an order dated October 21, 2020, the Supreme Court granted the plaintiff’s motion and denied the defendant’s cross-motion. On the same date, the court issued an order and judgment of foreclosure and sale, among other things, confirming the referee’s report and directing the sale of the subject property. The defendant appeals. An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4]; Lubonty v. U.S. Bank N.A., 34 NY3d 250, 261; U.S. Bank N.A. v. Dallas, 212 AD3d 680, 682). “[E]ven if 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” (BHMPW Funding, LLC v. Lloyd-Lewis, 194 AD3d 780, 782 [internal quotation marks omitted]; see GMAT Legal Title Trust 2014-1 v. Kator, 213 AD3d 915, 916). Acceleration occurs, inter alia, by the commencement of a foreclosure action wherein the holder of the note elects in the complaint to call due the entire amount secured by the mortgage (see Freedom Mtge. Corp. v. Engel, 37 NY3d 1, 22; GMAT Legal Title Trust 2014-1 v. Kator, 213 AD3d at 916; Ditech Fin., LLC v. Connors, 206 AD3d 694, 697). Here, the defendant demonstrated that the mortgage debt was accelerated when the plaintiff commenced the 2008 action on July 21, 2008, and elected in the complaint “to declare immediately due and payable the entire unpaid balance of principal” (see U.S. Bank N.A. v. Doura, 204 AD3d 721, 723; Wilmington Sav. Fund Socy., FSB v. Iqbal, 195 AD3d 772, 773). Since the plaintiff did not commence this action until November 5, 2015, more than six years later, the defendant established, prima facie, that this action was time-barred (see U.S. Bank N.A. v. Doura, 204 AD3d at 723). In opposition, the plaintiff failed to raise a triable issue 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 (see Barry v. Cadman Towers, 136 AD3d 951, 952). The recently enacted Foreclosure Abuse Prevention Act (L 2022, ch 821) replaced the savings provision of CPLR 205(a) with CPLR 205-a in actions upon instruments described in CPLR 213(4). On June 24, 2015, the Supreme Court directed dismissal of the 2013 action under 22 NYCRR 202.27 based upon a calendar default. A dismissal based upon a calendar default constitutes a “form of neglect” which does not qualify for the six-month extension of the statute of limitations contained within CPLR 205-a (cf. Deutsche Bank Natl. Trust Co. v. Baquero, 192 AD3d 660). Further, contrary to the plaintiff’s contention, even assuming that the 2008 action was voluntarily discontinued by the plaintiff, such would not serve to reset the statute of limitations (see CPLR 3217[e]; GMAT Legal Title Trust 2014-1 v. Kator, 213 AD3d at 917). Accordingly, we reverse the order and judgment of foreclosure and sale, deny those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference, and grant that branch of the defendant’s cross-motion which was for summary judgment dismissing the complaint insofar as asserted against her as time-barred. Although, in light of our determination, the defendant is the prevailing party for purposes of Real Property Law §282 (see 21st Mtge. Corp. v. Nweke, 165 AD3d 616, 619), her contention that she is entitled to an award of attorneys’ fees pursuant to that statute is without merit. Real Property Law §282(1) expressly provides that attorneys’ fees are recoverable by a mortgagor only “in an action commenced against the mortgagee or by way of counterclaim in any action or proceeding commenced by the mortgagee against the mortgagor.” Here, the defendant did not assert a counterclaim for an award of attorneys’ fees pursuant to Real Property Law §282 in her answer or move to amend her answer to assert such a counterclaim (cf. Nationstar Mtge., LLC v. Dorsin, 180 AD3d 1054, 1056; Deutsche Bank Natl. Trust Co. v. Gordon, 179 AD3d 770, 773). The parties’ remaining contentions either are without merit or need not be reached in light of our determination. BARROS, J.P., IANNACCI, CHAMBERS and MILLER, JJ., concur. By Barros, J.P.; Nelson, Dowling, Warhit, Voutsinas, JJ. CHRISTOPHER DEMARZO, res, v. CUBA HILL ELEMENTARY SCHOOL, ET AL., def, SUSAN ALLEMAN, app — (Index No. 615018/21) Rivkin Radler, LLP, Uniondale, NY (Cheryl F. Korman, Merril S. Biscone, and Frank Raia of counsel), for appellant. Merson Law, PLLC (Hasapidis Law Offices, New York, NY [Annette G. Hasapidis], of counsel), for respondent. In an action, inter alia, to recover damages for assault, battery, intentional infliction of emotional distress, and negligence, the defendant Susan Alleman appeals from an order of the Supreme Court, Nassau County (Steven M. Jaeger, J.), dated December 21, 2021. The order denied that defendant’s motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against her as time-barred. ORDERED that the order is affirmed, with costs. On August 5, 2021, the plaintiff commenced this action pursuant to the Child Victims Act (see CPLR 214-g) against the defendants, Cuba Hill Elementary School, James H. Boyd Intermediate School, and Elwood Union Free School District, and the defendant “Doe Alleman.” The purpose of the Child Victims Act is to “open the doors of justice to the thousands of survivors of child sexual abuse in New York State,” but the act originally allowed only a one-year window in which to commence an action (Senate Introducer’s Mem in Support, 2019 NY Legis Ann at 15). The Legislature subsequently extended the window to two years (see L 2020, ch 130, §1; S.H. v. Diocese of Brooklyn, 205 AD3d 180, 185 n). The complaint sets forth causes of action to recover damages resulting from alleged acts of sexual abuse committed against the plaintiff when he was approximately 10 to 12 years old while attending Cuba Hill Elementary School. The acts of sexual abuse were alleged to have been committed by “Doe” Alleman starting in 1975, when she was the plaintiff’s gymnastics teacher at the elementary school. On September 10, 2021, the plaintiff filed an amended complaint substituting Susan Alleman as a party defendant in place of Doe Alleman. Alleman was personally served with the amended complaint on September 27, 2021, well within 120 days of the commencement of the action. Alleman subsequently moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against her as time-barred, contending, among other things, that the amended complaint was filed nearly four weeks after the expiration of the revival window set forth in CPLR 214-g, and that CPLR 1024 was inapplicable here because the plaintiff had failed to exercise due diligence to discover her identity prior to the expiration of the statute of limitations. The plaintiff, in opposition, noted that Alleman’s identity was disclosed in the original summons and complaint prior to the expiration of the statute of limitations—all that was missing was her first name. The plaintiff further noted that, prior to the expiration of the statute of limitations, he exercised due diligence to discover Alleman’s full name via online searches through Google, online yearbooks, Lexis Public Records, the New York State teacher license database, and the White Pages. In reply, Alleman argued that the description of those efforts exercised failed to provide sufficient detail as to “time spent, websites searched, efforts made.” By order dated December 21, 2021, the Supreme Court denied Alleman’s motion. Alleman appeals. The description of Alleman in the original complaint was sufficient to identify her as the intended defendant (see LeBlanc v. Skinner, 103 AD3d 202, 208; Rogers v. Dunkirk Aviation Slaes & Serv., 31 AD3d 1119, 1120; cf. Thas v. Dayrich Trading, Inc., 78 AD3d 1163, 1165). In LeBlanc v. Skinner (103 AD3d at 208), this Court determined that an original complaint identifying “John Doe ‘wawayandafirst’” as the defendant was sufficient to identify the defendant Wayne Skinner and to apprise him that he was the intended defendant, and that “the action was timely commenced against him upon the filing of the summons and complaint.” In this regard, it was noted that Skinner was the individual responsible for issuing the Waywayandafirst blog posts that were at issue in that defamation case. Critically, this Court did not address the plaintiff’s efforts to discover the proper name of “John Doe ‘wawayandafirst’” prior to the expiration of the statute of limitations, implying that such scrutiny was unnecessary given that the complaint sufficiently apprised Skinner that he was the intended defendant. Similarly, in the instant case, the original complaint was sufficient to have apprised Alleman that she was an intended defendant. Contrary to the contention of our dissenting colleagues, the fact that Alleman’s identity was disclosed in the original summons and complaint was cited in support of the plaintiff’s argument in opposition to Alleman’s motion. If it had been deemed necessary, her first name “Susan” could have been added pursuant to CPLR 305(c), without reference to a due diligence requirement (see Parish of the Holy Assumption Russian Orthodox Greek Church Catholic Church, Inc. v. Klestoff, 191 AD3d 1012; New Found., LLC v. Ademi, 140 AD3d 1038; Holster v. Ross, 45 AD3d 640). The applicability of CPLR 1024 was raised by Alleman in her motion to dismiss because she “anticipated” that the plaintiff would rely upon it. “Under New York’s commencement-by-filing system, ‘a claim asserted against unknown parties pursuant to CPLR 1024 is deemed to be interposed for Statute of Limitations purposes when the “John Doe” summons with notice is filed with the clerk of the court’” (Moran v. County of Suffolk, 189 AD3d 1219, 1220, quoting Luckern v. Lyonsdale Energy Ltd. Partnership, 229 AD2d 249, 254; see Bumpus v. New York City Tr. Auth., 66 AD3d 26, 30-31). Here, even assuming that the plaintiff was required to demonstrate due diligence, contrary to Alleman’s contention, the plaintiff demonstrated that, prior to the commencement of the action and therefore prior to the expiration of the statute of limitations, he exercised due diligence to discover Alleman’s full name through online searches (see Rogers v. Dunkirk Aviation Sales & Serv., Inc., 31 AD3d at 1120; Luckern v. Lyonsdale Energy Ltd. Partnership, 229 AD2d at 253). The plaintiff specified that those online searches included searches through Google, online yearbooks, Lexis Public Records, the New York State teacher license database, and the White Pages. In her reply papers, Alleman raised a new argument that the plaintiff’s efforts—although they occurred prior to the expiration of the statute of limitations—were insufficient because minimal detail was provided. Since that argument was raised for the first time in the reply papers, the plaintiff had no opportunity to respond to them. Moreover, it is clear from this record that Alleman, who was served within 120 days of the timely commencement of the action, suffered no prejudice, and additional efforts to ascertain her first name prior to the commencement of the action would have had no practical effect on the course of the action. Accordingly, the Supreme Court properly denied Alleman’s motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against her as time-barred. The parties’ remaining contentions either are without merit or need not be reached in light of our determination. BARROS, J.P., WARHIT and VOUTSINAS, JJ., concur. BRATHWAITE NELSON, J., dissents, and votes to reverse the order insofar as appealed from, on the law, and to grant the motion of the defendant Susan Alleman to dismiss the amended complaint insofar as asserted against her as time-barred, with the following memorandum, in which DOWLING, J., concurs: It is undisputed that the amended complaint, which was amended to name Susan Alleman as a defendant, was filed approximately four weeks after the statute of limitations had expired. In opposing Alleman’s motion to dismiss the amended complaint insofar as asserted against her on the ground that the statute of limitations had expired, the plaintiff relied upon application of CPLR 1024, or, alternatively, the relation-back doctrine. On this record, the plaintiff failed to demonstrate that he made diligent efforts to ascertain Alleman’s true name prior to the expiration of the statute of limitations, and, therefore, he could not utilize CPLR 1024. Further, for that same reason and because Alleman is not united in interest with the other defendants, the plaintiff cannot rely upon the relation-back doctrine. Under these circumstances, the Supreme Court should have granted Alleman’s motion to dismiss the amended complaint insofar as asserted against her. Accordingly, I respectfully dissent. CPLR 1024 enables a plaintiff “who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party,” to commence an action against such a person as an unknown party by designating so much of the name and identity as is known. In order to utilize this procedural mechanism, the plaintiff must “exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name[,] and, despite such efforts, [have been] unable to do so” (Bumpus v. New York City Tr. Auth., 66 AD3d 26, 29-30; see Holmes v. City of New York, 132 AD3d 952, 953-954; Temple v. New York Community Hosp. of Brooklyn, 89 AD3d 926, 927). In addition, separate and apart from the due diligence requirement, “[a] second requirement unique to CPLR 1024 is that the ‘Jane Doe’ party be described in such form as will fairly apprise the party that she is the intended defendant. An insufficient description subjects the ‘Jane Doe’ complaint to dismissal for being jurisdictionally defective” (Bumpus v. New York City Tr. Auth., 66 AD3d at 30 [citations omitted]; see Thas v. Dayrich Trading, Inc., 78 AD3d 1163). “On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired” (Cadlerock Joint Venture, L.P. v. Trombley, 189 AD3d 1157, 1158). “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” (Barry v. Cadman Towers, Inc., 136 AD3d 951, 952). Here, the statute of limitations on the plaintiff’s causes of action, which are asserted under the Child Victims Act, expired on August 14, 2021 (see CPLR 214-g). The amended complaint was filed approximately four weeks later, on September 10, 2021. In support of her motion to dismiss the amended complaint insofar as asserted against her, Alleman established that the time in which to commence the action had expired when the amended complaint was filed. Anticipating the arguments in opposition to her motion, Alleman preemptively argued, among other things, that the plaintiff could not rely upon CPLR 1024 because he had failed to exercise due diligence prior to the expiration of the statute of limitations. In opposition to the motion, the plaintiff argued that the amended complaint was timely pursuant to CPLR 1024. He asserted that his ability to identify Alleman was limited because he did not know Alleman’s first name, but that diligent efforts were made to ascertain her identity prior to the expiration of the statute of limitations, “through Google, online yearbooks, Lexis Public Records, New York State’s teacher license database, and the White Pages.” The plaintiff further argued that the description of the defendant in the complaint, which was timely filed, was sufficient to apprise Alleman that she was the intended defendant. The plaintiff alternatively contended that the action was timely commenced against Alleman by application of the relation-back doctrine, since the action had been timely commenced against the other defendants. In reply, Alleman argued, among other things, that the plaintiff failed to provide sufficient detail about the purported online search that was made, “in terms of time spent, websites searched, efforts made, etc.” In the order appealed from, the Supreme Court determined that the plaintiff was entitled to amend the complaint under CPLR 1024, and, thus, the action was timely asserted against Alleman. In light of its determination to apply CPLR 1024, the court did not reach the question of whether the relation-back doctrine applied. On appeal, Alleman contends that the plaintiff failed to meet his burden of establishing that the action was timely commenced against her. Specifically, she argues that the plaintiff was not entitled to the benefit of CPLR 1024 because he failed to satisfy the due diligence requirement, and that the relation-back doctrine does not apply to the circumstances of this case. Notably, Alleman does not raise the separate argument to the applicability of CPLR 1024 that the “Jane Doe” described in the complaint was insufficient to fairly apprise her that she was the intended defendant. The majority’s suggestion that the due diligence requirement can be dispensed with when the complaint contains a sufficient description of the “Jane Doe” so as to fairly apprise the party that she is the intended defendant is plainly at odds with established case law finding that they are distinct and dual requirements to utilizing the statute (see Bumpus v. New York City Tr. Auth., 66 AD3d at 30). The majority finds support for its contention in this Court’s determination in LeBlanc v. Skinner (103 AD3d 202, 208) and the lack of discussion of due diligence therein. Nothing in this Court’s decision and order in LeBlanc suggests that the issue of due diligence was before the Court, and a review of the parties’ briefs demonstrates that it was not. The suggestion that our case law requiring a plaintiff to exercise due diligence before resorting to CPLR 1024 has been overruled by implication in an appeal that did not address the issue is contrary to the fundamental way in which case law is established. In addition, the majority’s speculation that the plaintiff could have sought to amend the complaint pursuant to CPLR 305(c), which facially pertains to a summons, not a complaint, is not relevant to any issue raised by the parties. In opposing Alleman’s motion, the plaintiff relied only on CPLR 1024 and the relation-back doctrine, and did not contend, as does the majority, that the due diligence requirement could be avoided. Nor does the plaintiff make this argument on appeal. As appellate courts “are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made” (Misicki v. Caradonna, 12 NY3d 511, 519), there is no occasion to consider the majority’s hypothesis concerning CPLR 305(c). Contrary to the plaintiff’s contention, Alleman’s arguments concerning the lack of due diligence plainly were raised and decided by the Supreme Court, were not waived, and are properly before this Court. Further, the majority suggests that Alleman improperly raised the new argument in reply that the plaintiff’s efforts to discover her identity prior to the expiration of the statute of limitations were insufficient. This argument, however, was responsive to the plaintiff’s assertion in opposition that he had made diligent efforts. It was the plaintiff’s burden to establish that he exercised due diligence prior to the expiration of the statute of limitations. Thus, Alleman’s arguments in reply were properly responsive to the opposition. Turning to the issues raised by the parties, the plaintiff failed to establish due diligence in his attempts to ascertain Alleman’s first name prior to the expiration of the statute of limitations. Counsel’s affirmation is devoid of any facts concerning the search terms used in the purported Google search, the particular title of the teacher license database that purportedly was searched, the school names and the years for the purported online yearbooks, and included only a general reference to the White Pages and Lexis public records, with no indication as to what efforts were made. The reference to a vague internet search with no details as to the specific efforts employed was insufficient to establish due diligence in the plaintiff’s attempts to identify the correct party (see Wilmington Trust, N.A. v. Shasho, 197 AD3d 534, 536; Holmes v. City of New York, 132 AD3d at 954; Temple v. New York Community Hosp. of Brooklyn, 89 AD3d at 927-928; Comice v. Justin’s Rest., 78 AD3d 641, 642; Misa v. Hossain, 42 AD3d 484, 486; Scoma v. Doe, 2 AD3d 432, 433). I agree with my colleagues in the majority that the plaintiff was not required to demonstrate that he pursued every avenue to identify Alleman, but our case law requires that he demonstrate due diligence, and this burden simply is not met by alluding to a vague internet search without additional details of the search taken. While the majority alludes to purported time constraints, seemingly referring to the fact that this action was commenced less than two weeks prior to the expiration of the statute of limitations, the plaintiff has neither offered an explanation as to why he waited so long to commence the action nor indicated that he was somehow precluded from commencing the action in advance of the expiration of the statute of limitations (see Walker v. Glaxosmithkline, LLC, 161 AD3d 1419, 1421; Walker v. Hormann Flexon, LLC, 153 AD3d 997, 998). Accordingly, the plaintiff was not entitled to utilize the procedural mechanism of CPLR 1024. Since the plaintiff failed to establish that diligent efforts were made to ascertain Alleman’s identity prior to the expiration of the statute of limitations, he likewise could not rely upon the relation-back doctrine (see Holmes v. City of New York, 132 AD3d at 954; Temple v. New York Community Hosp. of Brooklyn, 89 AD3d at 927; Bumpus v. New York City Tr. Auth., 66 AD3d at 35). Furthermore, the plaintiff failed to demonstrate that the relation-back doctrine applied, inasmuch as the plaintiff failed to demonstrate that Alleman was united in interest with the other defendants (see Mitzmacher v. Bay Country Owners, 211 AD3d 1025, 1026; Cedarwood Assoc., LLC v. County of Nassau, 211 AD3d 799, 800; see generally R. v. R., 37 AD3d 577, 578). Accordingly, I would reverse the order and grant Alleman’s motion to dismiss the amended complaint insofar as asserted against her as time-barred. By Duffy, J.P.; Nelson, Chambers, Warhit, JJ. GARY KRUPNICK, res, v. BENEDETTO ROMANO, app, ET AL., def — (Index No. 27792/07) Devitt Spellman Barrett, LLP, Smithtown, NY (Scott J. Kreppein of counsel), for appellant. MargolinBesunder LLP, Islandia, NY (Linda U. Margolin and Mark Keurian of counsel), for respondent. In an action to foreclose a mortgage, the defendant Benedetto Romano appeals from an order of the Supreme Court, Suffolk County (Paul J. Baisley, Jr., J.), dated October 20, 2021. The order denied that defendant’s motion to vacate an order and judgment of foreclosure and sale (one paper) of the same court entered September 10, 2010, and to cancel and discharge of record the subject mortgage, or, in the alternative, to cancel any interest that had accrued from the date of entry of the order and judgment of foreclosure and sale. 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 motion of the defendant Benedetto Romano which was to cancel any interest that had accrued from the date of entry of the order and judgment of foreclosure and sale, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the defendant Benedetto Romano. The plaintiff commenced this action to foreclose a mortgage on certain real property located in Babylon owned by the defendant Benedetto Romano. An order and judgment of foreclosure and sale was entered on September 10, 2010, inter alia, directing the sale of the subject property. As of November 5, 2020, no foreclosure sale had been scheduled. Romano moved to vacate the order and judgment of foreclosure and sale and to cancel and discharge of record the subject mortgage, or, in the alternative, to cancel any interest that had accrued from the date of entry of the order and judgment of foreclosure and sale. In an order dated October 20, 2021, the Supreme Court denied the motion. Romano appeals. “A foreclosure action is equitable in nature and triggers the equitable powers of the court” (Mortgage Elec. Registration Sys., Inc. v. Horkan, 68 AD3d 948, 948; see Notey v. Darien Constr. Corp., 41 NY2d 1055, 1055-1056; Deutsche Bank Natl. Trust Co. v. Ould-Khattri, 201 AD3d 701, 703). “[I]n an action of an equitable nature, interest and the rate and date from which it shall be computed [is] in the court’s discretion” (CPLR 5001[a]; see Wells Fargo Bank, N.A. v. Chun Fei Lee, 208 AD3d 1384, 1386; Deutsche Bank Natl. Trust Co. v. Ould-Khattri, 201 AD3d at 703). “The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party” (Dayan v. York, 51 AD3d 964, 965; see Wells Fargo Bank, N.A. v. Chun Fei Lee, 208 AD3d at 1386; Deutsche Bank Natl. Trust Co. v. Ould-Khattri, 201 AD3d at 703). Here, in opposition to Romano’s motion, the plaintiff explained that his delay in proceeding with the sale of the subject property was based upon his opinion that it was not worthwhile to pursue a foreclosure sale due to market conditions and his belief that there was “no significant equity in the property” beyond the amount of the first mortgage on the property, which had priority over that held by the plaintiff. While the plaintiff’s failure to conduct the sale based on a potential financial benefit to him was not wrongful conduct, per se, his inaction was the sole cause of the accrual of more than 10 years of postjudgment interest, which is roughly equivalent to the principal amount awarded in the order and judgment of foreclosure and sale in the first instance (see CPLR 5004). Under these circumstances, it would be inequitable to charge Romano with such accrued interest (see Dayan v. York, 51 AD3d at 965; see also Deutsche Bank Natl. Trust Co. v. Ould-Khattri, 201 AD3d at 703; U.S. Bank, N.A. v. Peralta, 191 AD3d 924, 926; Citicorp Trust Bank, FSB v. Vidaurre, 155 AD3d 934, 935). Thus, we modify the order appealed from accordingly. The parties’ remaining contentions either are without merit, need not be reached in light of our determination, or are improperly raised for the first time on appeal. DUFFY, J.P., BRATHWAITE NELSON, CHAMBERS and WARHIT, JJ., concur. By Connolly, J.P.; Genovesi, Ford, Wan, JJ. CHIC REALTY 712, LLC, app, v. GSA HOLDING CORPORATION, res — (Index No. 500907/20) Shapiro & Associates, PLLC, New York, NY (Saadia M. Shapiro and Samuel M. Lauer of counsel), for appellant. Goldberg & Cohn, LLP, Brooklyn, NY (Elliott S. Martin of counsel), for respondent. In an action, inter alia, for specific performance of a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Debra Silber, J.), dated March 15, 2021. The order, insofar as appealed from, granted those branches of the defendant’s motion which were pursuant to CPLR 3211(a) to dismiss the complaint and to cancel a notice of pendency filed by the plaintiff against the subject property. ORDERED that the order is affirmed insofar as appealed from, with costs. In December 2018, the plaintiff and the defendant entered into a contract of sale, by which the plaintiff was to pay a total purchase price of $5.3 million to purchase a building located in Brooklyn from the defendant. A down payment of $100,000 was due upon execution of the contract, and an additional payment of $165,000 was due upon the end of the plaintiff’s due diligence period, on April 1, 2019. The transaction failed to close. The plaintiff commenced this action, inter alia, for specific performance of the contract and to recover damages for breach of contract. The defendant moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint and to cancel a notice of pendency filed by the plaintiff against the property. In an order dated March 15, 2021, the Supreme Court, among other things, granted those branches of the defendant’s motion. The plaintiff appeals. A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that the action is barred by documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v. Martinez, 84 NY2d 83, 88). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Bath & Twenty, LLC v. Federal Sav. Bank, 198 AD3d 855, 856 [internal quotation marks omitted]; see JPMorgan Chase Bank, N.A. v. Klein, 178 AD3d 788, 790). In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint, 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” (Sokol v. Leader, 74 AD3d 1180, 1181 [internal quotation marks omitted]; see Leon v. Martinez, 84 NY2d at 87-88). “However, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration” (Nassau Operating Co., LLC v. DeSimone, 206 AD3d 920, 926 [internal quotation marks omitted]; see Simkin v. Blank, 19 NY3d 46, 52). “Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Brightside Home Improvements, Inc. v. Northeast Home Improvement Servs., 208 AD3d 446, 449-450 [internal quotation marks omitted]; see Palero Food Corp. v. Zucker, 186 AD3d 493, 495). “To state a cause of action for specific performance for the sale of property, a plaintiff must plead facts demonstrating, among other things, that the plaintiff substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations” (Homapour v. Piroozian, 210 AD3d 661, 663; see Finkelstein v. Lynda, 166 AD3d 948, 949). Here, the plaintiff’s claim that it was ready, willing, and able to perform was flatly contradicted by its own admissions that its willingness to perform was conditioned on an abatement of the contract price, among other things. Moreover, the plaintiff failed to allege that it substantially performed its contractual obligations by tendering the second down payment when it became due, and has acknowledged that this payment was never tendered. Accordingly, the plaintiff does not have a cause of action for specific performance (see Homapour v. Piroozian, 210 AD3d at 663; Patel v. S. & S. Props., Inc., 165 AD3d 827, 829). “‘The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of his or her contractual obligations, and damages resulting from the breach’” (Maspeth Fed. Sav. & Loan Assn. v. Elizer, 197 AD3d 1253, 1254, quoting Canzona v. Atanasio, 118 AD3d 837, 838). Here, the plaintiff annexed the contract of sale to the complaint, which it relied upon as the predicate for the breach of contract cause of action. However, even affording the plaintiff the benefit of every possible favorable inference, its allegations regarding the defendant’s purported obligations with respect to a tax assessment failed to set forth a breach of the provisions of the contract of sale. The Supreme Court properly granted those branches of the defendant’s motion which were to dismiss the remaining causes of action, alleging unjust enrichment, to recover in quantum meruit, and for the imposition of an equitable lien. Even assuming, as the plaintiff asserts, that it alleged a claim not covered by the contract of sale, the plaintiff failed to sufficiently allege that the defendant was enriched at the plaintiff’s expense (see Pierce Coach Line, Inc. v. Port Wash. Union Free Sch. Dist., 213 AD3d 959, 961; GFRE, Inc. v. U.S. Bank, N.A., 130 AD3d 569, 570), and failed to set forth any facts to support the existence of an equitable lien. Contrary to the plaintiff’s contention, since the defendant established its entitlement to dismissal of the causes of action for specific performance and the imposition of an equitable lien pursuant to CPLR 3211(a), the Supreme Court properly granted that branch of the defendant’s motion which was to cancel the notice of pendency (see id. §6501; Town of Oyster Bay v. Doremus, 94 AD3d 867, 870; Coleman v. Coker, 66 AD3d 812, 814). CONNOLLY, J.P., GENOVESI, FORD and WAN, JJ., concur. By Lasalle, P.J.; Duffy, Maltese, Love, JJ. THE PEOPLE, ETC., res, v. ROBERT G. FRANCE, app — (Index No. 668/11) Rosenberg Law Firm PLLC, Brooklyn, NY (Jonathan Rosenberg of counsel), for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Jill Oziemblewski and Raffaelina Gianfrancesco of counsel), for respondent. Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated September 17, 2014 (People v. France, 120 AD3d 1357), affirming a judgment of the County Court, Westchester County, rendered May 10, 2012. 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). LASALLE, P.J., DUFFY, MALTESE and LOVE, JJ., concur. By Dillon, J.P.; Ford, Dowling, Landicino, JJ. IN THE MATTER OF LAUREN REBORE, res, v. JOHN WOODBY, app — (Index Nos. F-5716-20/21, F-5716-20/21A, F-5716-20/21B, F-5716-20/21C, F-5716-20/21E) Daniel Szalkiewicz & Associates, P.C., New York, NY (Daniel S. Szalkiewicz and Cali P. Madia of counsel), for appellant. Campagna Johnson Mady, P.C., Islandia, NY (Bryan R. Johnson of counsel), for respondent. In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Paul M. Hensley, J.), dated August 8, 2022. The order, insofar as appealed from, denied the father’s objection to an order of the same court (Jennifer Ann Mendelsohn, S.M.) dated March 22, 2022, granting the mother’s motion for an award of attorney’s fees to the extent of awarding her $49,691.25 in attorney’s fees, based upon the mother’s alleged failure to provide the father with notice of his default in paying child support. ORDERED that the order dated August 8, 2022, is affirmed insofar as appealed from, with costs. The parties, who were never married, have two children. The mother filed separate petitions to enforce an order of support for the parties’ older child dated January 12, 2010 (hereinafter the 2010 order of support), which adopted the child support terms of an agreement entered into by the parties in 2008 for the custody and support of the older child (hereinafter the 2008 agreement), and for an order of support for the parties’ younger child. The father also filed a petition to modify the 2010 order of support. Following resolution of the petitions, the mother moved pursuant to Family Court Act §438 for an award of attorney’s fees against the father. In an order dated March 22, 2022, the Support Magistrate granted the mother’s motion to the extent of awarding her attorney’s fees in the sum of $49,691.25. The father filed objections to the Support Magistrate’s order, contending, among other things, that the mother was precluded from seeking an award of attorney’s fees because she failed to provide him with notice of his default in paying child support as required by the 2008 agreement. In an order dated August 8, 2022, the Family Court, inter alia, denied the father’s objection based upon the mother’s alleged failure to provide him with notice of his default in paying child support. The father appeals. Contrary to the father’s contention, the mother’s alleged failure to provide him with notice of his default in paying child support pursuant to the 2008 agreement did not preclude an award of attorney’s fees under Family Court Act §438. Irrespective of whether the 2008 agreement constitutes an enforceable contract between the parties, the plain language of that agreement does not require the mother to provide the father with notice of his default in order to enforce her right to seek an award of attorney’s fees or otherwise contain a waiver of her right to seek such fees under Family Court Act §438 (see Hart v. Rosenthal, 173 AD3d 695, 698; cf. Matter of Bernadette R. v. Anthony V.L., 205 AD3d 490, 491; Barson v. Barson, 32 AD3d 872, 873). Accordingly, the father’s objection on this ground was properly denied. DILLON, J.P., FORD, DOWLING and LANDICINO, JJ., concur. By Dillon, J.P.; Duffy, Connolly, Christopher, JJ. THE PEOPLE, ETC., res, v. DEVARL M. DUDLEY, app — (Index No. 2/17) Devarl M. Dudley, Stormville, NY, appellant pro se. William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent. Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated March 23, 2022 (People v. Dudley, 203 AD3d 1066), affirming a judgment of the County Court, Dutchess County, rendered October 16, 2017. 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., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur. By Duffy, J.P.; Christopher, Wan, Landicino, JJ. THE PEOPLE, ETC., res, v. SELVIN PENATE, app — (Index No. 896/20) Thomas J. Butler, Melville, NY, for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Cristin N. Connell of counsel; Matthew C. Frankel on the brief), for respondent. Appeal by the defendant from a judgment of the County Court, Nassau County (Robert A. McDonald, J., at plea; Robert G. Bogle, J., at sentence), rendered April 28, 2021, convicting him of forcible touching and criminal contempt 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 judgment is affirmed. We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606). DUFFY, J.P., CHRISTOPHER, WAN and LANDICINO, JJ., concur. By Dillon, J.P.; Duffy, Chambers, Ventura, JJ. THE PEOPLE, ETC., res, v. RUBENS PETION, app — (Index No. 1722/13) Rubens Petion, Coxsackie, NY, appellant pro se. Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and David L. Glovin of counsel), for respondent. Beverly Van Ness, New York, NY, former appellate counsel. Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated September 16, 2020 (People v. Petion, 186 AD3d 1410), affirming a judgment of the Supreme Court, Nassau County, rendered April 11, 2016. 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., DUFFY, CHAMBERS and VENTURA, JJ., concur.   Supplemental Handdown released on: October 25, 2023