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In an action to recover damages for breach of contract and on an account stated, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J), dated June 9, 2006, as granted the defendant’s motion for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is affirmed insofar as appealed from, with costs. The defendant established prima facie its entitlement to judgment as a matter of law as to the breach of contract cause of action. It demonstrated that there was no evidence that the plaintiff had a contractual relationship with the defendant (see M. Paladino, Inc. v Lucchese & Son Contr. Corp., 247 AD2d 515, 516 [1998]; Lambos & Giardino v Odel Corp., 182 AD2d 806 [1992]). In opposition, the plaintiff failed to raise a triable issue of fact. Furthermore, the plaintiff may not maintain a cause of action to recover on an account stated against the defendant. An account stated assumes the existence of some indebtedness between the parties, or an express agreement to treat a statement of debt as an account stated (see Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995, 996 [1979]; M. Paladino, Inc. v Lucchese & Son Contr. Corp., supra at 516; Martin H. Bauman Assoc. v H & M Intl. Transp., 171 AD2d 479, 485 [1991]). A cause of action alleging an account stated cannot be utilized simply as another means to attempt to collect under a disputed contract (see Erdman Anthony & Assoc. v Barkstrom, 298 AD2d 981 [2002]; M. Paladino, Inc. v Lucchese & Son Contr. Corp., supra at 516; Martin H. Bauman Assoc. v H & M Intl. Transp., supra at 485). The defendant submitted evidence that another corporation, 338 Asylum, LLC, completed an application for credit with the plaintiff, agreed to pay the plaintiffs invoices, and issued a check making partial payment on order No. 12901008601. This was sufficient to establish the defendant’s prima facie case for summary judgment dismissing the cause of action alleging an account stated against it. In opposition, the plaintiff submitted evidence that a purchase order had been issued on behalf of 338 Asylum, LLC, and that the plaintiff had *601been sending invoices under order No. 12901008601 to the defendant. This evidence was insufficient to raise a triable issue of fact as to that cause of action (see M. Paladino, Inc. v Lucchese & Son Contr. Corp., supra). Mastro, J.P., Ritter, Skelos, Garni and McCarthy, JJ., concur.

In an action to recover damages for medical malpractice and lack of informed consent, the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Colabella, J.), entered February 3, 2006, which, upon the granting of the defendant’s motion pursuant to CPLR 4401 for judgment as a matter of law at the close of the plaintiffs’ case, is in favor of the defendant and against them dismissing the complaint. Ordered that the judgment is affirmed, with costs. The Supreme Court properly precluded the plaintiffs from introducing expert testimony with respect to the issue of informed consent and therefore correctly granted the defendant’s motion pursuant to CFLR 4401 for judgment in his favor as a matter of law with respect to that issue. Fursuant to CFLR 3101 (d), a party is required, upon due demand, to disclose “the substance of the facts and opinions on which [the] expert is expected to testify.” Here, the defendant duly demanded that the plaintiffs disclose the substance of the anticipated expert testimony. Insofar as is relevant to the claim of lack of informed consent, however, the plaintiffs responded only that “the defendant departed from the good and accepted practice of medicine in the treatment of the plaintiff in . . . failing to [obtain] adequate informed consent.” The plaintiffs subsequently refused the defendant’s request that they supplement their expert disclosure by providing specifics regarding the claim that the defendant failed to obtain adequate informed consent. Because the plaintiffs’ conclusory response failed to satisfy the disclosure requirement (see Curatola v Staten Is. Med. Group, 243 AD2d 673 [1997]), resulting in prejudice to the defendant (cf. Beard v Brunswick Hosp. Ctr., 220 AD2d 550, 551 [1995]), the Supreme Court properly precluded testimony of the expert with respect to this issue (see Bauernfeind v Albany Med. Ctr. Hosp., 195 *602AD2d 819, 820 [1993]). In the absence of such testimony, the claim was properly dismissed (see CPLR 4401-a; Antoine v Gulmi, 275 AD2d 294 [2000]; Berger v Becker, 272 AD2d 565, 566 [2000]; Lasek v Nachtigall, 189 AD2d 749 [1993]). The Supreme Court also properly granted the defendant’s motion pursuant to CPLR 4401 for judgment as a matter of law with respect to the plaintiffs’ claim that the defendant negligently performed the colonoscopy. “In order to establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach was the proximate cause of injury” (Perrone v Grover, 272 AD2d 312 [2000]). Here, because the plaintiffs and their expert witness presented no evidence as to the applicable standard of care, they failed to establish a prima facie case of medical malpractice (see Pace v Jakus, 291 AD2d 436, 437 [2002]; Perrone v Grover, supra 272 AD2d at 313; DeCicco v Roberts, 202 AD2d 165 [1994]). Miller, J.P, Spolzino, Florio and Angiolillo, JJ., concur.

In an action, inter alia, to enjoin W.E. Rest., Inc., doing business as The Dory Restaurant, from operating The Dory Restaurant until án inspection by the Suffolk County Department of Health Services confirmed that all violations of the Suffolk County Sanitary Code had been corrected (matter No. 1), and a related proceeding pursuant to CPLR article 78, among other things, to review a determination of the Suffolk County Department of Health Services dated April 30, 2004, which, upon adopting the findings of fact, conclusions, and recommendations of a hearing officer dated April 28, 2004, made, inter alia, after a hearing, finding that The Dory Restaurant had committed certain violations of the Suffolk County Sanitary *603Code, among other things, ordered The Dory Restaurant closed until all violations had been corrected (matter No. 2), Brian L. Harper, as Commissioner of Health Services, Suffolk County Department of Health Services, appeals from a judgment of the Supreme Court, Suffolk County (Oliver, J.), dated June 29, 2005, which granted the petition in matter No. 2 and, in effect, dismissed the complaint in matter No. 1. Ordered that the appeal from so much of the judgment as granted the petition in matter No. 2 is dismissed, and so much of the judgment as granted the petition in matter No. 2 is vacated; and it is further, Adjudged that the petition in matter No. 2 is granted to the extent that (1) the Suffolk County Department of Health Services is directed to renew the food establishment permit of the W.E. Rest., Inc., doing business as The Dory Restaurant, that was issued on March 7, 2003 and expired on March 31, 2004, (2) so much of the determination as (a) affirmed the findings that W.E. Rest., Inc., doing business as The Dory Restaurant, had violated Suffolk County Sanitary Code §§ 760-1307.3, 760-1304.1, 760-1304.2, and 760-307.3 (b) is annulled and the penalties imposed on those violations in the total sum of $2,000 are vacated, and (b) ordered that The Dory Restaurant be closed until all violations were corrected is annulled; the determination is otherwise confirmed, the petition in matter No. 2 is otherwise denied, and the proceeding in matter No. 2 is otherwise dismissed; and it is further, Ordered that the judgment is modified, on the law and the facts, by adding thereto, after the provision which, in effect, dismissed the complaint in matter No. 1, the words “as academic”; as so modified, the judgment is affirmed insofar as reviewed; and it is further, Ordered that one bill of costs is awarded to W.E. Rest., Inc., doing business as The Dory Restaurant. Since questions of substantial evidence are involved, matter No. 2 should have been transferred to this Court pursuant to CPLR 7804 (g). However, this Court will treat the matter as one initially transferred here and will review the administrative determination de novo (see Matter of Weingarten v Crime Victims Bd., 22 AD3d 763 [2005]; Matter of Tutuianu v New York State, 22 AD3d 503 [2005]; Matter of Sureway Towing, Inc. v Martinez, 8 AD3d 490 [2004]; Matter of Kilafofski v Blackburne, 201 AD2d 564 [1994]). The determination of the Suffolk County Department of Health Services (hereinafter the SCDHS) that W.E. Rest., Inc., doing business as The Dory Restaurant (hereinafter the *604restaurant), violated Suffolk County Sanitary Code §§ 760-1307.3, 760-1304.1, 760-1304.2, and 760-307.3 (b) was not supported by substantial evidence. Each of those charges was predicated on the restaurant’s alleged failure to submit plans to the SCDHS before undertaking certain repairs at the restaurant. The SCDHS failed to demonstrate that those repairs entailed substantial remodeling pursuant to Suffolk County Sanitary Code § 760-1304, such that the restaurant was required to submit the plans to the SCDHS for review and approval before any construction was started. Accordingly, so much of the determination as found that the restaurant violated Suffolk County Sanitary Code §§ 760-1307.3, 760-1304.1, 760-1304.2, and 760-307.3 (b) must be annulled and the penalties imposed on those violations in the total sum of $2,000 vacated. The determination of the SCDHS that the restaurant operated in excess of its 45-patron maximum capacity, specified on its permit to operate a food establishment, in violation of Suffolk County Sanitary Code § 760-1302 (A), was supported by substantial evidence (see CPLR 7803 [4]; see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-181 [1978]; Matter of Bacik v Great Neck Water Pollution Control Dist., 29 AD3d 573 [2006]) The evidence demonstrated that the seating capacity exceeded the maximum seating capacity of 45 specified on the restaurant’s permit by more than 100 seats. Further, the restaurant pleaded guilty with an explanation to that charge without denying the excessive seating. The restaurant’s contention that the prior issuance by the SCDHS of a permit Hmiting its seating capacity to 45 violated its constitutional rights is not properly before this Court (see generally Neuman Distribs. v Jacobi Med. Ctr., 298 AD2d 568 [2002]). The fines imposed by the SCDHS on the remaining violations were not “ ‘so disproportionate to the offense[s] as to be shocking to one’s sense of fairness,’ thus constituting an abuse of discretion as a matter of law” (see Matter of Waldren v Town of Islip, 6 NY3d 735, 736 [2005], quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]; Matter of Kennedy v Bennett, 31 AD3d 764 [2006], lv denied 7 NY3d 718 [2006]). However, the SCDHS’s action in directing that the restaurant be closed until all violations were corrected was so disproportionate to the offenses as to constitute an abuse of discretion (see generally Matter of Waldren v Town of Islip, supra at 736; Matter of Pell, supra; Matter of Kennedy v Bennett, supra). The hearing officer and the Commissioner of Health *605Services, Suffolk County Department of Health Services failed to consider or assign sufficient weight to a number of mitigating factors, most significantly the SCDHS inspection report dated February 20, 2004, which indicated that most of the violations, and specifically the majority of violations that would constitute “insanitary or other conditions in the operation of a food establishment which constitute a danger to public health” (Suffolk County Sanitary Code § 760-1303 [D]), had been corrected (see Matter of Figuereo v Lipsman, 25 AD3d 699, 702 [2006]; Matter of Goudy v Schaffer, 24 AD3d 764, 765 [2005]; Matter of Muraik v Landi, 19 AD3d 697, 698 [2005]). The parties’ remaining contentions are without merit or have been rendered academic. Schmidt, J.P., Santucci, Skelos and Covello, JJ., concur.

In an action to recover damages for negligence and breach of contract, the defendant appeals from an order of the Supreme Court, Kangs County (Kurtz, J.), dated June 1, 2006, which granted the plaintiffs’ motion to restore the action to active status and to extend their time to file a note of issue, and denied its cross motion pursuant to CPLR 3216 to dismiss the action. Ordered that the order is affirmed, with costs. Contrary to the defendant’s contention, the compliance conference order dated September 14, 2004 could not be deemed a 90-day demand pursuant to CPLR 3216 since it gave the plaintiffs only 78 days within which to file the note of issue (see Wollman v Berliner, 29 AD3d 786 [2006]; Delgado v New York City Hous. Auth., 21 AD3d 522 [2005]; Vasquez v Big Apple Constr. Corp., 306 AD2d 465 [2003]). Furthermore, the subsequent order dated January 13, 2005 which extended the plaintiffs’ deadline for filing a note of issue, was also insufficient to constitute a 90-day demand since it did not provide the required 90-day notice and failed to advise the plaintiffs that the failure to comply with the demand would serve as the basis for a motion to dismiss the action (see Wollman v Berliner, supra; Delgado v New York City Hous. Auth., supra; O’Connell v City Wide Auto Leasing, 6 AD3d 682, 683 [2004]). Accordingly, *606the Supreme Court properly granted the plaintiffs’ motion to restore the action to the active calendar and to extend the time to file a note of issue and denied the defendant’s cross motion pursuant to CPLR 3216 to dismiss the action. Crane, J.P., Santucci, Florio, Dillon and Balkin, JJ., concur.

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated October 21, 2005, as denied that branch of its motion which was for summary judgment dismissing the causes of action based on a violation of Labor Law § 240 (1), and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as denied his motion for summary judgment on the issue of liability on his causes of action based on a violation of Labor Law § 240 (1) and granted that branch of the defendant’s motion which was for summary judgment dismissing the causes of action based on a violation of Labor Law § 241 (6). Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant’s motion which was for summary judgment dismissing the causes of action based on a violation of Labor Law § 240 (1), and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the defendant. The plaintiff, a stagehand at the Brooklyn Academy of Music, allegedly was injured when he was struck by a falling object while preparing the theater for a new show. He commenced this action against the City of New York, as owner of the building, asserting, inter alia, causes of action based on violations of Labor Law § 240 (1) and § 241 (6). Upon completion of discovery, the City moved for summary judgment dismissing the complaint. The plaintiff cross-moved for summary judgment on the issue of liability on his causes of action based on a violation of Labor Law § 240 (1). The Supreme Court denied the plaintiffs cross *607motion, denied that branch of the City’s motion which was for summary judgment dismissing the Labor Law § 240 (1) causes of action, and granted, inter alia, that branch of the City’s motion which was for summary judgment dismissing the causes of action based on a violation of Labor Law § 241 (6). The Supreme Court erred in denying that branch of the City’s motion which was to dismiss the causes of action based on Labor Law § 240 (1). “While the reach of [Labor Law § ] 240 (1) is not limited to work performed on actual construction sites . . . the task in which an injured employee was engaged must have been performed during ‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ ” (Martinez v City of New York, 93 NY2d 322, 326 [1999], quoting Labor Law § 240 [1]). “ ‘[Altering’ within the meaning of Labor Law § 240 (1) requires making a significant physical change to the configuration or composition of the building or structure” (Joblon v Solow, 91 NY2d 457, 465 [1998]; see Acosta v Banco Popular, 308 AD2d 48, 50 [2003]). Where the work does not involve a significant or permanent physical change, dismissal of a Labor Law § 240 (1) cause of action is appropriate (see Kretzschmar v New York State Urban Dev. Corp., 13 AD3d 270 [2004]). Here, the City established its prima facie entitlement to judgment as a matter of law by submitting evidence that the work being performed at the time of accident, i.e., assisting in the installation of a hoist motor for the lifting of scenery at a theater in preparation for a new show, was more in the nature of “routine maintenance” done outside of the context of construction work (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003]; Acosta v Banco Popular, supra; cf. Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 882 [2003]) and involved no “significant physical change to the configuration or composition of the building or structure” (Joblon v Solow, supra at 465; see Adair v Bestek Light. & Staging Corp., 298 AD2d 153, 153 [2002]). In opposition, the plaintiff failed to raise a triable issue of fact. Moreover, contrary to the plaintiffs contention, the Supreme Court properly granted summary judgment dismissing the plaintiffs causes of action based on a violation of Labor Law § 241 (6). In opposition to the City’s prima facie showing that the accident did not arise from construction, excavation, or demolition work (see Labor Law § 241 [6]; Esposito v New York City Indus. Dev. Agency, supra; Nagel v D & R Realty Corp., 99 NY2d 98, 103 [2002]; Rodriguez v 1-10 Indus. Assoc., LLC, 30 AD3d 576, 577 [2006], lv denied 7 NY3d 712 [2006]), the *608plaintiff failed to raise a triable issue of fact. Crane, J.E, Krausman, Fisher and Dickerson, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kelly, J.), entered December 30, 2005, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed, with costs. The defendants established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff *609failed to raise a triable issue of fact. To the extent that the plaintiff relied on her hospital records and treatment reports of Long Island City Pain Management & Rehabilitation Offices, EC., those submissions were without any probative value in opposing the defendants’ motion since they were either uncertified (see Mejia v DeRose, 35 AD3d 407, 408 [2006]), or unaffirmed (see Grasso v Angerami, 79 NY2d 813, 814 [1991]; Bycinthe v Kombos, 29 AD3d 845, 845-846 [2006]; Pagano v Kingsbury, 182 AD2d 268, 270 [1992]). The affirmed medical report and affirmation of the plaintiffs examining neurologist also failed to raise a triable issue of fact. While the plaintiffs examining neurologist set forth limitations in the plaintiff’s cervical and lumbar spine range of motion based on a recent examination in his affirmed medical report and affirmation, neither he nor the plaintiff proffered competent medical evidence showing range of motion limitations in the plaintiffs spine that were contemporaneous with the subject accident (see Felix v New York City Tr. Auth., 32 AD3d 527, 528 [2006]; Ramirez v Parache, 31 AD3d 415, 416 [2006]; Bell v Rameau, 29 AD3d 839, 839 [2006]; Ranzie v Abdul-Massih, 28 AD3d 447, 448 [2006]; Li v Woo Sung Yun, 27 AD3d 624, 625 [2006]; Suk Ching Yeung v Rojas, 18 AD3d 863, 864 [2005]; Nemchyonok v Peng Liu Ying, 2 AD3d 421 [2003]). It is also apparent that the plaintiffs examining neurologist relied on the unsworn reports of others in reaching the conclusions in his affirmed report and affirmation (see Elder v Stokes, 35 AD3d 799 [2006]; Felix v New York City Tr. Auth., supra; Vallejo v Builders for Family Youth, Diocese of Brooklyn, Inc., 18 AD3d 741, 742 [2005]; Mahoney v Zerillo, 6 AD3d 403 [2004]; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267 [1995]). Furthermore, the affirmed submissions of the plaintiff evincing that she suffered from herniated discs in her lumbar and cervical spine were insufficient, on their own, to establish a serious injury. The mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration (see Mejia v DeRose, supra at 408; Yakubov v CG Trans Corp., 30 AD3d 509, 510 [2006]; Cerisier v Thibiu, 29 AD3d 507, 508 [2006]; Bravo v Rehman, 28 AD3d 694, 695 [2006]; Kearse v New York City Tr. Auth., 16 AD3d 45, 50 [2005]). The plaintiffs self-serving affidavit was insufficient to satisfy this requirement (see Elder v Stokes, supra at 800; Felix v New York City Tr. Auth., supra). Crane, J.E, Santucci, Florio, Dillon and Balkin, JJ., concur.

In an action to recover damages for medical malpractice, nonparty Edward A. Lemmo, EC., the plaintiffs attorney, appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated January 5, 2006, as disallowed reimbursement of its disbursements to Robert Bernstein Investigation and to Second Opinion Services. Ordered that on the Court’s own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see CFLR 5701 [b] [1]); and it is further, Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the nonparty appellant is awarded reimbursement for its disbursements to Robert Bernstein Investigation in the sum of $1,500.84 and to Second Opinion Services in the sum of $9,100. The appellant was entitled to recover disbursements for investigative or other services properly chargeable to the prosecution of this action (see Judiciary Law § 474-a [3]; Yalango v Popp, 84 NY2d 601, 610 [1994]). The Supreme Court erred in disallowing reimbursement of certain documented disbursements from the proceeds of recovery (see Guiliano v Carlisle, 236 AD2d 364, 365 [1997]; Holskin v 22 Prince St. Assoc., 178 AD2d 347, 348-349 [1991]). Rivera, J.P., Spolzino, Fisher, Lifson and Dickerson, JJ., concur.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (F. Rivera, J.), dated September 23, 2005, which granted the motion of the defendants Lefferts Heights Housing Development Fund Company, Inc., and William R. Lucas Management Company, Inc., for summary judgment dismissing the complaint insofar as asserted against them. Ordered that the order is affirmed, with costs. On the night of February 11, 2000 the plaintiff Major Jackson (hereinafter the plaintiff) visited a friend in a Brooklyn apartment building. On his way out, the plaintiff entered the lobby and encountered Jermaine Broswell, whom the plaintiff had known for several months. Broswell’s mother lived in the building, and Broswell had been “buzzed in” by a tenant. After the two men spoke for a short time, Broswell produced a gun and fired a single shot at the plaintiff, thereby severing his spinal cord. The plaintiff and his wife, suing derivatively, commenced this action, naming as defendants the landlord, Lefferts Heights Housing Development Fund Company, Inc. (hereinafter Lefferts), the management company, Lucas Management Company, Inc. (hereinafter Lucas), and the firm retained to provide security on the premises, Bait-Ul Nasr, Inc. Lefferts and Lucas moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the motion. We affirm. Landlords have a common-law duty to take minimal precautions to protect tenants and their guests from foreseeable harm, including a third-party’s foreseeable criminal conduct (see Burgos v Aqueduct Realty Corp., 92 NY2d 544, 548 [1998]; Waters v New York City Hous. Auth., 69 NY2d 225 [1987]; Alvarez v Masaryk Towers Corp., 15 AD3d 428, 428 [2005]; Novikova v Greenbriar Owners Corp., 258 AD2d 149, 151 [1999]). In this case, the movants established that the entrance to the building was equipped with an inner door lock, which was operable, and an intercom and buzzer system. Additionally, a security guard was assigned to the lobby on the first floor. These facts were sufficient to demonstrate, prima facie, that the movants satisfied their duty to take minimal precautions against the foreseeable criminal acts of third parties and to warrant *611judgment in their favor as a matter of law (see Novikova v Greenbriar Owners, supra at 151-152). In opposition to the motion, the plaintiffs failed to raise a triable issue of fact (see CPLR 3212 [b]). None of the alleged security deficiencies the plaintiffs cited in opposition to the motion was sufficient to raise a triable issue of fact as to whether the defendants fulfilled their duty or whether their alleged negligence was a proximate cause of the plaintiffs injury. Accordingly, the motion was properly granted. Crane, J.P., Florio, Fisher and Dickerson, JJ., concur.

*612In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated August 27, 2005, which granted the defendant’s motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiff allegedly sustained personal injuries when the doors of an elevator in the building where she worked closed on her left hand. The elevator was equipped with a safety device called a door edge detector, which was supposed to prevent the doors from closing when there was an object in their path. The plaintiff commenced the present action, naming, as the sole defendant, the company which had entered into a written agreement with the owner of the building to service and maintain the subject elevator. Thereafter, the defendant moved for summary judgment dismissing the complaint on the ground that it did not create, have notice of, or negligently fail to remedy the alleged defective condition. The Supreme Court properly granted the motion. “An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found” (Carrasco v Millar El. Indus., 305 AD2d 353, 354 [2003] [internal quotation marks omitted]). The defendant established a prima facie case that it did not create the alleged defective condition and also that it had no actual or constructive notice of the defective condition, as there was no evidence of any such prior malfunctions of the subject elevator (see Carrasco v Millar El. Indus., supra). The affidavit prepared by the plaintiff’s expert in opposition to the motion failed to raise a triable issue of fact (see CPLR 3212 [b]). The expert claimed that a broken wire in the electrical traveling cable in the same elevator, which existed approximately six weeks before the subject accident, provided the defendant with notice of the alleged defect to the door edge detector. While the record is *613ambiguous as to whether the broken wire occurred in the same elevator where the plaintiff was injured, there is no evidence in the record that the wire was in any way connected with the alleged defect in the door edge detector. In addition, after the defendant established a prima facie case that the doctrine of res ipsa loquitur did not apply to the facts of this case, the plaintiff failed to raise a triable issue of fact (see Halikiopoulos v New York Hosp. Med. Ctr. of Queens, 4 AD3d 331 [2004]). Mastro, J.E, Rivera, Dillon and Garni, JJ., concur.

In an action, inter alia, for specific performance of a right of first refusal contained in a lease, the defendant appeals from (1) a decision of the Supreme Court, Westchester County (Smith, J.), dated April 17, 2006, and (2) an order of the same court dated June 19, 2006, which, upon the decision, granted the plaintiffs motion for the release of a bond it had posted following the granting of a preliminary injunction and directed the Clerk of the County of Westchester to release to the plaintiff the sum of $125,000, plus all accrued interest, minus the Westchester County statutory fees, to the plaintiffs attorney. Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further, Ordered that on the Court’s own motion, the notice of appeal from an order dated May 2, 2006 is deemed a premature notice of appeal from the order dated June 19, 2006 (see CPLR 5520 [c]); and it is further, Ordered that the order dated June 19, 2006 is affirmed; and it is further, Ordered that one bill of costs is awarded to the respondent. We do not reach the defendant’s contention that the Supreme Court lacked personal jurisdiction over him, as that issue was one that could have been litigated on the defendant’s appeal from a prior order of the Supreme Court, Westchester County (Barone, J.), dated March 22, 2005, which appeal was dismissed by order of this Court dated November 10, 2005, for failure to prosecute (see Bray v Cox, 38 NY2d 350, 355 [1976]; Horan v Ocean Ships, 262 AD2d 531 [1999]). The defendant’s remaining contention is without merit for reasons stated by Justice Smith in the Supreme Court. Mastro, J.P, Spolzino, Krausman and Balkin, JJ., concur.

*614In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated February 16, 2006, as denied its cross motion to dismiss the amended complaint for failure to comply with General Municipal Law § 50-e (2). Ordered that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and the cross motion to dismiss the amended complaint for failure to comply with General Municipal Law § 50-e (2) is granted. General Municipal Law § 50-e (2) provides, in part, that a notice of claim shall “set forth . . . the time when, the place where, and the manner in which the claim arose.” The plaintiffs initial notice of claim stated that the claim arose on December 30, 2002 without specifying the time of the accident. At a hearing held pursuant to General Municipal Law § 50-h on June 24, 2004 the plaintiff testified that the accident occurred on December 28, 2002 at about 1:30 a.m. On July 19, 2004 the defendant was served with an amended complaint reflecting the correct date of the accident. Under the circumstances of this case, the defendant was prejudiced (see Kotler v City of New York, 266 AD2d 355 [1999]; Pollicino v New York City Tr. Auth., 225 AD2d 750 [1996]; Rodriguez v City of New York, 223 AD2d 536, 537 [1996]). Therefore, the Supreme Court improvidently exercised its discretion in denying the defendant’s cross motion to dismiss the amended complaint. Crane, J.E, Santucci, Florio, Dillon and Balkin, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated January 9, 2006, which denied her motions, in effect, for leave to reargue the defendants’ motion for summary judgment dismissing the complaint on the basis that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the appeal is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument. The court properly treated the plaintiff’s first motion, denominated as one for leave to renew and reargue, as a motion for leave to reargue because it was not based upon new facts which were unavailable at the time of the defendants’ motion for summary judgment and the plaintiff did not offer a reasonable justification for the failure to present the allegedly new facts in opposition to the defendants’ motion for summary judgment (see CPLR 2221 [d], [e]; CPI Contr., Inc. v Expert Elec., Inc., 36 AD3d 582 [2007]; Crawn v Sayah, 31 AD3d 367 [2006]; Rivera v Toruno, 19 AD3d 473, 474 [2005]). The court properly treated the plaintiffs second motion as, in effect, for leave to reargue the defendants’ motion for summary judgment, since it sought essentially the same relief as the first motion. The court denied both motions. The plaintiffs appeal must be dismissed as the denial of reargument is not appealable (see CPI Contr., Inc. v Expert Elec., Inc., supra; Crawn v Sayah, supra; Rivera v Toruno, supra). Mastro, J.E, Ritter, Skelos, Garni and McCarthy, JJ., concur.

In an action for a judgment declaring that the plaintiff is a shareholder of the defendants AtlanticHeydt Corporation and Atlantic-Heydt Rental Corporation, doing business as Atlantic-Heydt Leasing Co., and a shareholder’s derivative action, among other things, to recover damages for waste of corporate assets and breach of fiduciary duty, the defendants Michael Breslin, John Breslin, Ave. Woodward Corp., 2 Ave. Woodward Corp., Atlantic-Heydt Corporation, and Atlantic-Heydt Rental Corporation, doing business as AtlanticHeydt Leasing Co., appeal from (1) an order of the Supreme Court, Westchester County (Rudolph, J.), entered November 15, 2005, which denied their motion pursuant to CFLR 3104 (d) to vacate so much of an order of the same court (Friedman, J.H.O.), dated September 23, 2005, as denied their application to compel a response to certain discovery demands, (2) an order of the *615same court (Rudolph, J.), also entered November 15, 2005, which denied their motion, among other things, pursuant to CPLR 3104 (d) to vacate an order of the same court (Friedman, J.H.O.), dated October 24, 2005, which certified that discovery was complete, and (3) an order of the same court (Rudolph, J.), entered April 4, 2006, which denied their motion, among other things, to vacate the note of issue. Ordered that on the Court’s own motion, the appeals by the defendants Atlantic-Heydt Corporation and Atlantic-Heydt Rental Corporation, doing business as Atlantic-Heydt Leasing Co., are dismissed as academic, as we have declared, on a prior appeal, that the plaintiff is not a shareholder of those defendants, and complete relief has been accorded between the plaintiff and those defendants (see Kingston v Breslin, 25 AD3d 657 [2006]); and it is further, Ordered that the orders are affirmed insofar as reviewed, with one bill of costs payable by the defendants Michael Breslin, John Breslin, Ave. Woodward Corp., and 2 Ave. Woodward Corp. The Judicial Hearing Officer (hereinafter the JHO) appointed by the Supreme Court to supervise discovery as a referee (see CPLR 3104) providently exercised his discretion in determining, inter alia, that certain documents sought by the defendants Michael Breslin, John Breslin, Ave. Woodward Corp., and 2 Ave. Woodward Corp. (hereinafter the defendants) were not “material and necessary” to their defense of this action, or to the prosecution of their counterclaim alleging tortious interference with prospective economic advantage (CPLR 3101 [a]; see Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; Arosa v Hilton Hotels Corp., 178 AD2d 573, 573-574 [1991]). The JHO also providently exercised his discretion in later certifying that the matter was ready for trial (see Matter of Tarka, 268 AD2d 396, 397 [2000]). Accordingly, the Supreme Court correctly denied the defendants’ motions to vacate the JHO’s orders (see CPLR 3104 [d]; Krygier v Airweld, Inc., 176 AD2d 701, 702 [1991]), and properly declined to vacate the note of issue (see 22 NYCRR 202.21 [e]). The defendants’ remaining contentions are without merit. Mastro, J.P, Krausman, Florio and Balkin, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered November 22, 2005, which granted the defendants’ motion for summary judgment dismissing the complaint. *616Ordered that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied. “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Here, the defendants failed to meet their initial burden of establishing entitlement to judgment as a matter of law. Triable issues of fact exist, inter alia, as to whether the defendant Matthew Goldhagen was negligent in operating the vehicle registered to the defendant Susan Goldhagen and, if so, whether such negligence was a proximate cause of the accident (see generally Cucci v Cucci, 31 AD3d 598 [2006]). Since the defendants failed to meet their initial burden as the movants, the sufficiency of the plaintiff’s opposition papers need not be considered (see Winegrad v New York Univ. Med. Ctr., supra). Mastro, J.E, Rivera, Dillon and Garni, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated April 19, 2006, as granted the motion of the defendant GSL Enterprises, Inc., for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is affirmed insofar as appealed from, with costs. The defendant GSL Enterprises, Inc. (hereinafter GSL), is the owner of premises where the plaintiff allegedly was injured when she slipped and fell on ice. In its motion for summary judgment dismissing the complaint insofar as asserted against it, GSL relied on the provisions of a “triple net lease” under which, it argued, it was an out-of-possession landlord not responsible for repairs or maintenance. “Generally, an out-of-possession owner or lessor is not liable for injuries that occur on *617its premises unless it has retained control over the premises or is contractually obligated to repair unsafe conditions” (Scott v Bergstol, 11 AD3d 525, 525 [2004]; see Couluris v Harbor Boat Realty, Inc., 31 AD3d 686, 686 [2006]; Knipfing v V&J, Inc., 8 AD3d 628, 628-629 [2004]; Eckers v Suede, 294 AD2d 533, 533 [2002]). The provisions of the lease were sufficient to establish GSL’s prima facie entitlement to judgment as a matter of law, because it established that GSL was an out-of-possession landlord with no duty to remove snow or ice (see Scott v Bergstol, supra at 526). In opposition, the plaintiff argued that, because GSL had a right under the lease to re-enter for the purpose of inspection and repair, it retained sufficient control to be subject to liability for Lindquist’s injuries. “The reservation of the right to enter the premises for inspection and repair may constitute sufficient control to permit a finding that the owner or lessor had constructive notice of a defective condition provided a specific statutory violation exists and there is a significant structural or design defect” (Thompson v Port Auth. of N.Y. & N.J., 305 AD2d 581, 582 [2003]). The plaintiff here, however, failed to identify any specific statutory violation and failed to allege that her injury was caused by a significant structural or design defect (see Thompson v Port Auth. of N.Y. & N.J., supra). Consequently, the plaintiff failed to raise a triable issue of fact in opposition to GSL’s prima facie showing, and the Supreme Court properly granted GSL’s motion. The plaintiffs remaining contention is without merit. Crane, J.E, Krausman, Fisher and Dickerson, JJ., concur.

In an action to recover damages for personal injuries, etc., (1) the defendant Little Flower Children’s Services appeals from an order of the Supreme Court, Queens County (Flug, J.), dated March 14, 2006, which, in effect, upon reargument, vacated an order of the same court dated March 11, 2005 granting that branch of the plaintiffs’ prior motion which was for an in camera review of its case record by the court and granting that branch of its prior cross motion which was for the appointment of a guardian ad litem for the infant plaintiff, and thereupon *618directed it to disclose its entire unredacted case record to the plaintiffs, and (2) the defendants City of New York and Administration for Children’s Services appeal, and the defendants Bernice Rivera and Peter Rivera separately appeal, from an order of the same court dated April 11, 2006 which granted that branch of the plaintiffs’ motion which was to direct the defendant Little Flower Children’s Services to disclose its entire unredacted case record to the plaintiffs. By decision and order on motion of this Court dated May 24, 2006, inter alia, enforcement of so much of the order dated March 14, 2006 as directed Little Flower Children’s Services to disclose its entire unredacted case record to the plaintiffs was stayed pending hearing and determination of its appeal. Ordered that the appeals from the order dated April 11, 2006 are dismissed; and it is further, Ordered that the order dated March 14, 2006 is reversed, and the matter is remitted to the Supreme Court, Queens County, for the appointment of a new guardian ad litem for the infant plaintiff and for further proceedings consistent herewith, before a different Justice, and the order dated April 11, 2006, is vacated; and it is further, Ordered that one bill of costs is awarded to the defendant Little Flower Children’s Services. The defendant Little Flower Children’s Services (hereinafter Little Flower), as an authorized child care agency, is required by Social Services Law § 372 (1) to provide and keep an extensive record of any child whom it receives, accepts, or commits. Such records are confidential and subject to the provisions of CPLR article 31 (see Social Services Law § 372 [3]). Upon an application by a parent, relative, legal guardian, or authorized agency, the court may order disclosure of “such extracts from the record relating to such child as the court may deem proper” (Social Services Law § 372 [3]; see Matter of Wise v Battistoni, 208 AD2d 755, 756 [1994]; Krueger v Louise Wise Servs., 143 AD2d 641, 642 [1988]). An applicant seeking disclosure bears the burden of convincing the court that disclosure of the information sought would be proper, and disclosure should be accompanied by adequate safeguards to limit as much as possible the unnecessary loss of confidentiality (see Sam v Sanders, 80 AD2d 758 [1981], affd 55 NY2d 1008 [1982]; Matter of Carla L., 45 AD2d 375, 382). Here, while the Supreme Court properly directed Little Flower to produce its case record for in camera inspection in its prior order dated March 11, 2005, the court erred in not conducting a proper in camera review of the case record, and *619instead, directing Little Flower to disclose its entire unredacted case record to the plaintiffs. The court should have, inter alia, marked the record for identification, and, in the presence of the parties, identified the records without divulging content or breaching confidentiality so that Little Flower could seek a protective order pursuant to CPLR 3103 (see Wheeler v Commissioner of Social Servs. of City of N.Y., 233 AD2d 4, 13 [1997]). Additionally, under the facts of this case, a new guardian ad litem should be appointed for the infant plaintiff (see Boyd v Trent, 287 AD2d 475 [2001]). The appeal by the defendants Bernice Rivera and Peter Rivera must be dismissed, as they are not aggrieved by the order dated April 11, 2006 (see CPLR 5511). The appeal by the defendants City of New York and Administration for Children’s Services from the order dated April 11, 2006, has been rendered academic in light of our determination on the appeal by Little Flower Children’s Services from the order dated March 14, 2006. Mastro, J.P, Rivera, Dillon and Garni, JJ., concur.

In an action to cancel a deed and set aside a conveyance of real property and to recover damages for unjust enrichment, the defendants appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Blackburne, J.), which, after a nonjury trial, inter alia, determined that the defendant Winston Chiu “was never a member of the [plaintiff 42-52 Northern Blvd.] LLC” and that the plaintiff Man Choi Chiu is the “sole member” thereof, granted the plaintiffs’ application to conform the pleadings to the proof by amending paragraphs 50 and 51 of the complaint and paragraph 2 of the ad damnum clause, determined that the deed and title to the subject premises held by the defendants is null and void, precluded the *620defendants from any financial involvement, participation, management, membership, rights, privileges, interest, or emoluments of membership in the plaintiff 42-52 Northern Blvd., LLC, and the premises known as 42-52 Northern Blvd., and awarded the plaintiffs an attorney’s fee. Ordered that the order and judgment is modified, on law and on the facts, by (1) deleting the provisions thereof which determined that the defendant Winston Chiu “was never a member of the [plaintiff 42-52 Northern Blvd.] LLC” and that the plaintiff Man Choi Chiu is the “sole member” thereof, (2) deleting the provisions thereof which granted the plaintiffs’ application to conform the pleadings to the proof by amending paragraphs 50 and 51 of the complaint and paragraph 2 of the ad damnum clause,- and (3) deleting the provision thereof precluding the defendants from any financial involvement, participation, management, membership, rights, privileges, interest, or emoluments of membership in the plaintiff 42-52 Northern Blvd., LLC, and the premises known as 42-52 Northern Blvd.; as so modified, the order and judgment is affirmed, without costs or disbursements. In reviewing a trial court’s findings of fact following a nonjury trial, this Court’s authority “is as broad as that of the trial court” and includes the power to “render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses” (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983] [citations and internal quotation marks omitted]; see Hall v Sinclaire, 35 AD3d 660 [2006]; Matter of Fasano v State of New York, 113 AD2d 885, 888 [1985]). Here, the trial court’s determination that the defendant Winston Chiu “was never a member of the [plaintiff 42-52 Northern Blvd.] LLC” was against the weight of the documentary and testimonial evidence relating to the original purchase and financing of the subject premises by the plaintiff 42-52 Northern Blvd., LLC (hereinafter the LLC), in September 1999. Among other things, the LLC’s counsel in connection with those transactions, Wander & Golden, LLP (hereinafter Wander & Golden), provided an opinion letter representing, in relevant part, that certain loan documents executed by Winston Chiu, as member of the LLC, were “duly authorized, validly and duly executed and delivered by the [LLC] . . . and constitute the valid, binding and enforceable obligation of the [LLC].” Moreover, the trial court lacked a proper factual and legal basis to grant the plaintiffs’ application, after the close of the *621evidence, to amend the complaint to include a new cause of action for a declaration that Winston Chiu was merely a “nominal member” of the LLC, who could be expelled therefrom upon payment to him by the LLC of the value of the 4% capital account. At the outset, under the circumstances presented, the plaintiffs’ post-trial application to add an entirely new cause of action under the guise of conforming the pleadings to the proof, apart from evincing gross laches on the part of the movant, was arguably prejudicial to the defendant (see Felix v Lettre, 204 AD2d 679 [1994]; cf. Mular v Fredericks, 305 AD2d 648 [2003]). In any event, the court’s determination as to the membership of the LLC should have been based primarily on the LLC’s own records, which, by law, must include “a current list of the full name set forth in alphabetical order and last known mailing address of each member together with the contribution and the share of profits and losses of each member or information from which such share can be readily derived” (Limited Liability Company Law § 1102 [a] [2]). The only documentary evidence that arguably satisfied this requirement consisted of the LLC’s tax returns for the years 1999 and 2000, both of which listed the defendant Winston Chiu as a member having a 25% ownership of capital, profit sharing, and loss sharing and the plaintiff Man Choi Chiu as the other member having a 75% ownership of capital, profit sharing, and loss sharing. Thus, the proposed amendment was unwarranted by the evidence (cf. Romano v Romano, 139 AD2d 979, 980 [1987]). For the same reason, the trial court’s finding that Man Choi Chiu was the “sole member” of the LLC is similarly unsupported by the record evidence. Additionally, the trial court erred in refusing to receive as evidence offered by the defendants an operating agreement, purportedly entered into before the organization of the LLC (see Limited Liability Company Law § 417 [c]), between Winston Chiu and Man Choi Chiu’s late son, Henry Chiu. As correctly noted by the defendants in their brief, the very same agreement, which, inter alia, granted Winston Chiu the right to acquire up to 25% of the ownership interest in the LLC and Henry Chiu the right to acquire the remaining 75% interest, was included as part of the closing statement prepared by Wander & Golden, which had previously been admitted into evidence on consent of the parties. We discern no basis, however, to disturb the trial court’s determination to set aside as fraudulent the purported transfer by the defendant Winston Chiu of the LLC’s sole asset, the underlying real property, from the LLC to a trust controlled by him and the other individual defendants for a purchase price of ten dol*622lars, without payment of city and state transfer taxes, and in violation of the terms of the mortgage (see Citibank, N.A. v Plagakis, 8 AD3d 604 [2004]). The defendants’ remaining contentions are without merit. Schmidt, J.E, Santucci, Fisher and Covello, JJ., concur.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated May 19, 2006, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted. Contrary to the plaintiffs contention, the defendant established his prima facie entitlement to judgment as a matter of law by tendering competent evidence that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50 [2005]). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff did not offer medical proof in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Pagano v Kingsbury, 182 AD2d 268, 270 [1992]) that was contemporaneous with the subject accident substantiating his claim of serious injury (see Zinger v Zylberberg, 35 AD3d 851 [2006]; Elder v Stokes, 35 AD3d 799 [2006]; Felix v New York City Tr. Auth., 32 AD3d 527 [2006]; Li v Woo Sung Yun, 27 AD3d 624, 625 [2006]). Evidence of disc bulges, without more, is insufficient to establish a serious injury (see Kearse v New York City Tr. Auth., supra at 50; see also Pommells v Perez, 4 NY3d 566, 574 [2005]). To the extent the plaintiff tendered medical evidence in admissible form, such evidence related only to his current complaints and was therefore insufficient to defeat summary judgment (see Zinger v Zylberberg, supra; Elder v Stokes, supra; Knijnikov v Mushtaq, 35 AD3d 545 [2006]). Moreover, the plaintiff failed to offer any reasonable explanation for the complete cessation of all treatment from approximately September of 2002 until November of 2005 (see Pommells v Perez, supra at 574). Rivera, J.E, Spolzino, Fisher, Lifson and Dickerson, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County, dated November 16, 2005, which granted the defendants’ motion for summary judgment dismissing the complaint and denied his cross motion for summary judgment on the issue of liability. Ordered that the order is affirmed, with costs. In general, workers compensation benefits are the exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment (see Workers’ Compensation Law § 11; Cronin v Perry, 244 AD2d 448, 449 [1997]). “ [Controversies regarding the applicability of the Workers’ Compensation Law rest within the primary jurisdiction of the Workers’ Compensation Board, including issues as to the existence of an employer-employee relationship” (Santiago v Dedvukaj, 167 AD2d 529 [1990] [citation omitted]). The determination of the Workers’ Compensation Board is final and binding, and a plaintiff may not maintain an action against a defendant from whom he or she has accepted workers’ compensation benefits by arguing that he or she was actually employed by a different entity (id.; see also Decavallas v Pappantoniou, 300 AD2d 617, 619 [2002]; see generally Botwinick v Ogden, 59 NY2d 909, 910 [1983]). Here, the defendants, the plaintiff’s employer and a co-employee involved in the subject accident, submitted documents from the Workers’ Compensation Board, which demonstrated that the plaintiff was awarded workers’ compensation benefits under the policy of the defendant employer. The plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, the plaintiff cannot maintain the instant action, and the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint and denied the plaintiff s cross motion for summary judgment. Mastro, J.E, Rivera, Dillon and Garni, JJ., concur.

In an action to recover damages for personal injuries, etc., the *624plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), dated February 3, 2006, as granted that branch of the cross motion of the defendant Peter J. Striano which was for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff Marlene Marziotto did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed insofar as appealed from, with costs. The defendant Peter J. Striano established, prima facie, that the plaintiff Marlene Marziotto (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). Contrary to the plaintiffs’ contentions on appeal, they failed to raise a triable issue of fact in opposition. The respective affirmations, with annexed submissions, of the injured plaintiff’s treating orthopedist and physician were insufficient to raise a triable issue of fact since the findings contained therein were not based on a recent examination of the injured plaintiff (see Gomez v Epstein, 29 AD3d 950, 951 [2006]; Legendre v Bao, 29 AD3d 645 [2006]; Cerisier v Thibiu, 29 AD3d 507 [2006]; Tudisco v James, 28 AD3d 536, 537 [2006]; Barzey v Clarke, 27 AD3d 600 [2006]; Murray v Hartford, 23 AD3d 629 [2005]; Farozes v Kamran, 22 AD3d 458 [2005]). Moreover, in his affirmation, the injured plaintiff’s treating physician admittedly relied on the unsworn magnetic resonance imaging report of another physician in reaching his diagnosis of the injured plaintiff therein, thus rendering his affirmation without probative value in opposing Striano’s cross motion (see Elder v Stokes, 35 AD3d 799 [2006]; Felix v New York City Tr. Auth., 32 AD3d 527 [2006]; Vallejo v Builders for Family Youth, Diocese of Brooklyn, Inc., 18 AD3d 741, 742 [2005]; Mahoney v Zerillo, 6 AD3d 403 [2004]; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267 [1995]). The remaining submission of the plaintiffs, which consisted of an unaffirmed magnetic resonance imaging report of the injured plaintiffs lumbosacral spine dated February 24, 2003, was also without probative value in opposing the cross motion since that submission was unaffirmed (see Grasso v Angerami, 79 NY2d 813, 814 [1991]; Bycinthe v Kombos, 29 AD3d 845 [2006]; Pagano v Kingsbury, 182 AD2d 268, 270 [1992]). Rivera, J.E, Spolzino, Fisher, Lifson and Dickerson, JJ., concur.

*625In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Colabella, J.), entered September 28, 2005, which, upon an order of the same court entered September 21, 2005 granting the defendants’ motion for summary judgment, is in favor of the defendants and against her, dismissing the complaint. The notice of appeal from the order entered September 21, 2005 is deemed to be a notice of appeal from the judgment entered September 28, 2005 (see CPLR 5512 [a]). Ordered that the judgment is affirmed, with costs. The plaintiff fell while on a bus as it pulled away from the stop where she boarded it . She alleged that the defendants were negligent because the operator of the bus pulled away from the stop before she sat down. However, the plaintiff has acknowledged that her claim is not premised on the bus making “a sudden jerk” and that there were no “sudden, unusual and violent jerks, lurches or stops by the bus” in this case. Contrary to the plaintiff’s contention, the defendants established their entitlement to judgment as a matter of law by demonstrating that the plaintiff was afforded a reasonable opportunity to safely board the bus. The operator of the bus was not required to wait until the plaintiff found a seat before proceeding, and absent any claim that the operation of the bus was “extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel” (Urquhart v New York City Tr. Auth., 85 NY2d 828, 830 [1995]), the plaintiff failed to raise a triable issue of fact in opposition to the motion (see e.g. Delgiudice v Metropolitan Transp. Auth., 36 AD3d 649 [2007]; Curley-Concepcion v New York City Tr. Auth., 276 AD2d 463 [2000]). Mastro, J.E, Rivera, Dillon and Garni, JJ., concur.

*626In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) so much of an order of the Supreme Court, Queens County (Golia, J.), dated March 16, 2005, as denied their motion for summary judgment on the issue of liability on their Labor Law § 240 (1) cause of action and granted those branches of the defendant’s cross motion which were for summary judgment dismissing the Labor Law § 241 (6) and § 200 causes of action, and (2) so much of an order of the same court dated July 21, 2005, as denied that branch of their motion which was for leave to renew their prior motion for summary judgment on the issue of liability under Labor Law § 240 (1), and the defendant cross-appeals from so much of the order dated March 16, 2005, as denied that branch of its motion which was for summary judgment dismissing the Labor Law § 240 (1) cause of action. Ordered that the orders dated March 16, 2005 and July 21, 2005, respectively, are affirmed insofar as appealed from; and it is further, Ordered that the order dated July 21, 2005 is reversed insofar as cross-appealed from, and that branch of the motion which was for summary judgment dismissing the Labor Law § 240 (1) cause of action is granted; and it is further, Ordered that one bill of costs is awarded to the defendant. The injured plaintiff was installing security cameras in the elevators of a building owned by the defendant. While on the roof of an adjacent garage, attaching cable to the wall of the building, the injured plaintiff fell when a metal grating upon which the ladder was resting collapsed. At his examination before trial, the injured plaintiff testified that he was standing on the second step of the ladder when he fell. However, the building’s superintendent testified that after the accident, he observed the injured plaintiff and the metal grating at the bottom of the elevator shaft, while the ladder was still standing against the wall. “To recover under Labor Law § 240 (1), a plaintiff must demonstrate that there was a violation of the statute and that the violation was a proximate cause of the accident” (Marin v Levin Props., LP, 28 AD3d 525 [2006], citing Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]). “The *627extraordinary protections of Labor Law § 240 (1) extend only to a narrow class of special hazards, and do ‘not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ ” (Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 915-916 [1999], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). “Where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no section 240 (1) liability exists” (Nieves v Five Boro A.C. & Refrig. Corp., supra at 915, citing Melber v 6333 Main St., 91 NY2d 759, 763-764 [1998]). Here, the defendant met its prima facie burden of establishing its entitlement to judgment as a matter of law by demonstrating that the fall resulted from a “separate hazard wholly unrelated to the danger that brought about the need for the ladder in the first instance” (Nieves v Five Boro A.C. & Refrig. Corp., supra at 916; see also Melber v 6333 Main St., supra; Aquilino v E.W. Howell Co., Inc., 7 AD3d 739 [2004]; Masullo v City of New York, 253 AD2d 541 [1998]). In opposition, the plaintiffs failed to raise a triable issue of fact. Under such circumstances, that branch of the defendants’ cross motion which was for summary judgment dismissing the plaintiffs’ Labor Law § 240 (1) cause of action should have been granted. In order to recover under Labor Law § 241 (6), a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503-505 [1993]; Weingarten v Windsor Owners Corp., 5 AD3d 674, 677 [2004]). The Industrial Code provisions cited by the plaintiffs in their bill of particulars are inapplicable to the facts of this case, and therefore the plaintiffs failed to establish a prima facie showing of entitlement to judgment as a matter of law. Thus, that branch of the defendant’s cross motion which was to dismiss the Labor Law § 241 (6) cause of action was properly granted (see Weingarten v Windsor Owners Corp., supra). The defendant also met its prima facie burden of entitlement to summary judgment on the plaintiffs’ Labor Law § 200 and common-law negligence causes of action. The plaintiffs conceded that the defendant did not supervise or control the injured plaintiffs work, and the record was devoid of any evidence suggesting that the defendant had actual or constructive notice of the allegedly dangerous condition (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Curiale v Sharrotts Woods, Inc., 9 AD3d 473, 475 [2004]; Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798, 800 [2003]). *628In opposition, the plaintiffs failed, to raise a triable issue of fact. Therefore, that branch of the defendant’s cross motion which was to dismiss the plaintiffs’ Labor Law § 200 and common-law negligence causes of action was properly granted (see Owen v Commercial Sites, 284 AD2d 315 [2001]). The plaintiffs’ remaining contention is without merit. Mastro, J.E, Spolzino, Santucci and Fisher, JJ., concur.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Francois Rivera, J.), dated March 6, 2006, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted. The plaintiff allegedly slipped and fell on urine or beer on the vestibule floor of the defendant’s premises early on a Sunday morning. According to the defendant’s caretaker, when he inspected the area the previous day, right before the end of his shift, he did not observe any liquid on the floor of the vestibule. The defendant established its entitlement to judgment as a matter of law by demonstrating that it did not create the alleged hazardous condition or have actual or constructive notice of it (see Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837 [2005], revg 10 AD3d 503 [2004]; Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). In opposition to the defendant’s showing, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact. The affidavit of the plaintiffs wife could not be considered in determining this motion because the plaintiff failed to properly disclose his wife as a notice witness in his discovery responses (see Williams v ATA Hous. Corp., 19 AD3d 406, 407 [2005]; Concetto v Pedalino, 308 AD2d 470, 470-471 [2003]; Andujar v Benenson Inv. Co., 299 AD2d 503 [2002]). The plaintiffs further contention that this was a recurrent condition such as would give constructive notice to the defendant, an argument not dependent on his wife’s affidavit, is without merit (see Gloria v MGM Emerald Enters., 298 AD2d 355, 356 [2002]). Crane, J.E, Krausman, Fisher and Dickerson, JJ., concur.

*629In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated January 19, 2006, as granted those branches of the defendants’ motion pursuant to CPLR 3211 (a) (7) which were to dismiss the first and fourth causes of action and so much of the second, third, and fifth causes of action insofar as asserted against the defendant Nature’s Way Products, Inc. Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendants’ motion pursuant to CPLR 3211 (a) (7) which were to dismiss the first and fourth causes of action and so much of the second, third, and fifth causes of action insofar as asserted against the defendant Nature’s Way Products, Inc., are denied. Upon a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the pleadings must be liberally construed (see CPLR 3026). “The question presented for review is not whether [the plaintiff] should ultimately prevail in this litigation, but rather, more narrowly, whether [its complaint] state[s] cognizable causes of action” (Becker v Schwartz, 46 NY2d 401, 408 [1978]; cf. Sotomayor v Kaufman, Malchman, Kirby & Squire, 252 AD2d 554 [1998]). For the purposes of review, the court must assume the allegations in the complaint to be true, “accord plaintiff! ] 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 [1994]; see Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]). The plaintiff sufficiently pleaded a cause of action alleging breach of contract. Contrary to the reasoning of the Supreme Court, the complaint adequately alleged that the defendant Wilbert Smith, inter alia, breached his contractual undertaking of nondisclosure of the plaintiff’s trade secrets and other confidential data. Indeed, the Supreme Court appropriately recognized this in upholding the plaintiff’s cause of action against Smith alleging a breach of fiduciary duty. The branches of the motion which were to dismiss the causes of action alleging the aiding and abetting of a breach of fiduciary duty, misappropriation of trade secrets, interference with contractual relations, and unfair competition insofar as asserted against the defendant Nature’s Way Products, Inc., should also have been denied. These causes of action also were adequately *630pleaded. Crane, J.P, Krausman, Fisher and Dickerson, JJ., concur.

In an action to recover damages for personal injuries, the defendants Marie Jean and Kersine Jean, sued herein as Jean Kersine, appeal from an order of the Supreme Court, Kangs County (Lewis, J.), dated February 10, 2006, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them. Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint insofar as asserted against the defendants Marie Jean and Kersine Jean, sued herein as Jean Kersine, is granted. The plaintiff alleges that she sustained personal injuries in an accident which occurred while she was a passenger in a vehicle owned by the defendant Kersine Jean, sued herein as Jean Kersine, and operated by the defendant Marie Jean. The accident occurred when the Jean vehicle, which was stopped at a red light, was struck in the rear by a vehicle owned by the defendant Jose Guzman, and operated by the defendant Bhaido Anurag. Immediately after the accident, Anurag admitted that the collision occurred when his foot slipped off the brake pedal. A rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by coming forward with an adequate, non-negligent explanation for the accident (see Toussaint v Ferrara Bros. Cement Mixer, 33 AD3d 991 [2006]; Emil Norsic & Son, Inc. v L.P. Transp., Inc., 30 AD3d 368 [2006]; Piltser v Donna Lee Mgt. Corp., 29 AD3d 973 [2006]). Here, the appellants sustained *632their burden of establishing their prima facie entitlement to judgment as a matter of law by submitting evidence that their vehicle was lawfully stopped at a red light when the collision occurred (see Sherin v Roda, 14 AD3d 604 [2005]; Sabbagh v Shalom, 289 AD2d 469 [2001]). In opposition to the motion, neither the plaintiff nor the codefendants came forward with evidence to rebut the inference that Anurag was negligent, and to raise an issue of fact as to whether any negligence on the part of the appellants caused or contributed to the collision (see Sherin v Roda, supra; Garoes v Karabelas, 17 AD3d 633 [2005]; Irmiyayeva v Thompson, 296 AD2d 439 [2002]). Accordingly, the Supreme Court should have granted the appellants’ motion for summary judgment dismissing the complaint insofar as asserted against them. In light of our determination, we need not reach the alternate basis asserted by the appellants for seeking summary judgment. Crane, J.E, Krausman, Fisher and Dickerson, JJ., concur.

In an action to recover damages for personal injuries, the plaintiffs’ former attorney, David Levine, appeals from so much of an order of the Supreme Court, Kings County, dated June 13, 1960, as: (1) in its second decretal paragraph directs him, upon the payment to him of the sum of $90.70 for his expenses and disbursements, to turn over to the plaintiffs’ substituted attorney, Stanley D. Applebaum, all papers, medical reports, witnesses’ statements and photographs in his (Levine’s) possession; and (2) in its third decretal paragraph directs that in the event of a recovery in the action, said former attorney (Levine) be paid the additional sum of $350 “ when said recovery is received by the plaintiffs and their attorney.” Order modified by striking out the said two ordering paragraphs and by substituting therefor one paragraph fixing, on a quantum, meruit basis, at $350 the value of the services rendered by attorney Levine to the plaintiffs; and another paragraph directing that, upon payment to attorney Levine of the sum of $350 for the services rendered by him to the plaintiffs and of the sum of $90.70 for his expenses and disbursements on their behalf, he shall surrender to them or to their present attorney Applebaum, all the medical reports, witnesses’ statements, photographs and other papers relating to their (plaintiffs’) cause of action in his (Levine’s) possession or control. As so modified, order insofar as appealed from affirmed, without costs. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. Attorney Levine was duly retained by plaintiffs to institute this action. Thereafter and before any action was commenced, plaintiffs became dissatisfied with his services and superseded him with their present attorney, who thereupon instituted the action. Plaintiffs then petitioned the court for an order directing attorney Levine to turn over to their present attorney all papers and documents in his (Levine’s) possession and to establish the reasonable value of his services. Since he had failed to institute any action prior to his discharge, the statutory lien under section 475 of the Judiciary Law did not come into being. He did, however, acquire a retaining lien on the papers —a lien which depends upon his continued possession of them (cf. Robinson v. Rogers, 237 N. Y. 467). But unlike a charging lien, such retaining lien could not be enforced as a lien on the proceeds of the action (cf. Matter of Cooper [McCauley], 291 N. Y. 255, 260). Attorney Levine also acquired a right to compensation quantum meruit immediately upon his discharge (Matter of Tillman, 259 N. Y. 133, 136). The order appealed from, however, made the payment for his services contingent upon a recovery by plaintiffs in the action. His compliance with such order would necessarily destroy his retaining lien for the value of his services (cf. Matter of *495McNally v. Youngs, 237 App. Div. 787, appeal dismissed 262 N. Y. 526). We do not pass upon the power of the Special Term to direct an attorney who has a retaining lien, to surrender property in his possession subject to the lien, upon the furnishing to him of adequate security to protect his lien. Here, since no security was directed to be given, the attorney should not have been compelled to turn over the papers except upon payment in full for his services and disbursements. Nolan, P. J., Beldock, Ughetta, ICleinfeld and Christ, JJ., concur.

*633In an action to foreclose a tax lien, Saffron Gardens, Ltd., appeals from an order of the Supreme Court, Nassau County (Martin, J.), entered May 8, 2006, which granted the plaintiffs motion to hold it in default of the terms of sale and memorandum of purchase and direct the forfeiture of its down payment. Ordered that the order is reversed, on the law, without costs or disbursements, and the motion is denied. The nonparty appellant, Saffron Gardens, Ltd. (hereinafter Saffron), was the successful bidder on real property being sold at a tax lien foreclosure sale. The plaintiff seller moved to hold Saffron in default of the terms of sale and memorandum of purchase and direct a forfeiture of its down payment. The Supreme Court granted the motion. We reverse, however, because the record does not reflect that the plaintiff made a demand for performance sufficient to cause Saffron to be in default (see Guippone v Gaias, 13 AD3d 339 [2004]; Cave v Kollar, 296 AD2d 370 [2002]; D’Abreau v Smith, 240 AD2d 616 [1997]). We note that the plaintiff may seek the same relief based upon a sufficient demand. On appeal, the plaintiff argues that Saffron, in effect, engaged in an anticipatory breach of the terms of sale and memorandum of purchase. However, this argument was not made before the Supreme Court and, therefore, is not properly before this Court on appeal (see Levy v Grandone, 14 AD3d 660 [2005]). Further, the argument does not present an issue of law which could not have been avoided if raised at the proper juncture. Thus, it may not be reached for the first time on appeal (see Sprain Brook Manor Nursing Home v Glazer, 6 AD3d 522 [2004]). Saffron’s arguments concerning alleged defects in the title to the subject property were raised and decided against Saffron on a prior appeal in this case (see Matter of Foreclosure of Tax Lien Certificate No. 1878, 35 AD3d 604 [2006]). Therefore, consideration of the same on this appeal is barred by the doctrine of the law of the case (see Matter of Independence Party State Comm, of State of NY. v Berman, 28 AD3d 556 [2006]; Quinn v Hillside Dev. Corp., 21 AD3d 406 [2005]). Saffron did not demonstrate extraordinary circumstances warranting a departure from the earlier determination on this issue (see Quinn v Hillside Dev. Corp., supra). Saffron’s remaining contentions are without merit. Miller, J.E, Spolzino, Ritter and Lifson, JJ., concur.

Appeal by the defendant from an order of the County Court, Suffolk County (Weber, J.), dated September 22, 2005, 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. The evidence submitted by the People at the hearing established, by clear and convincing evidence, the existence of facts sufficient to support the County Court’s determination that the defendant should be classified as a level three sex offender (see People v Morales, 33 AD3d 982 [2006]; People v Hegazy, 25 AD3d 675 [2006]; People v Burgess, 6 AD3d 686 [2004]). The case summary and risk assessment instrument prepared by the Board of Examiners of Sex Offenders, and the defendant’s presentence report, established that the defendant had not accepted responsibility for his actions and was expelled from sex offender treatment (see People v Morales, supra; People v Fortin, 29 AD3d 765 [2006], lv denied 7 NY3d 712 [2006]; People v Mitchell, 300 AD2d 377 [2002]). Furthermore, the defendant admitted that he had been expelled from treatment. Consequently, the County Court properly assessed 15 points under the 12th risk factor (acceptance of responsibility). In light of our determination, the defendant’s remaining contention has been rendered academic. Schmidt, J.P, Krausman, Goldstein, Covello and Angiolillo, JJ., concur.

Appeal by the defendant from an order of the County Court, Dutchess County (Hayes, J.), dated November 23, 2004, 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. Contrary to the defendant’s contention, the hearing court properly assessed him 10 points under risk factor number 13 (unsatisfactory post-offense conduct while confined/supervised) based on evidence that he absconded from the court’s jurisdiction while awaiting sentencing. The defendant’s contention that the court erred in assessing him both 30 points under risk factor number 5 (victim less than 10 years old) and 20 additional points under risk factor number 6 (physical helplessness of victim) is unpreserved for appellate review (see People v Sinclair, 23 AD3d 537 [2005]). In any event, even if the defendant’s total score under the risk assessment instrument had fallen below the threshold score for designation as a level three sex offender, an upward departure to level three would have been warranted in this case based on clear and convincing evidence that the defendant, after absconding from New York, obtained employment where children were easily accessible, and subsequently admitted to fantasizing about subjecting very young girls to sexual acts. Accordingly, the hearing court’s determination to designate the defendant a level three sex offender was provident and supported by clear and convincing evidence (see People v Forney, 28 AD3d 446, 447 [2006]; People v Hammonds, 27 AD3d 441, 442 *637[2006]; People v White, 25 AD3d 677 [2006]). Crane, J.E, Florio, Fisher and Dickerson, JJ., concur.

In an action by a former corporate officer and director to recover from the corporation sums of money alleged to have been loaned by her to it and the fair and reasonable value of services claimed to have been rendered by her to it, defendant appeals: (1) from an order of the Supreme Court, Rockland County, dated June 22, 1959, which grants plaintiff’s motion for partial summary judgment pursuant to rule 114 of the Rules of Civil Practice; and (2) from the judgment entered thereon on June 24, 1959. Plaintiff relies on: (a) a promissory note drawn to her order and signed by the corporation “ By Leandro W. Tomarkin, Pres.”; (b) an agreement by the third-party defendant Tomarkin and one -Casa vina, dated June 20, 1957, to which plaintiff was not a party, recognizing that there may be some money owing from defendant to plaintiff; and (c) a letter addressed to plaintiff and said Leandro W. Tomarkin (who are husband and wife), stating that an examination of the corporate defendant’s books indicates that $2,500 was loaned to the corporation by plaintiff. The answer contains denials and sets up separate defenses affecting the validity of the promissory note and alleges affirmative conduct on the part of plaintiff indicating that there is no liability on the part of defendant to plaintiff. Order and judgment reversed, with $10 costs and disbursements, and motion for partial summary judgment denied. In view of the fiduciary relationship existing as a.. *497result of plaintiff’s connection with the corporation as stockholder, director and officer, requiring, as it does, that all transactions between her and the corporation be explained fully and easting upon her the burden of showing that no advantage has been taken of her position, we are of opinion that under the circumstances disclosed by this record the documentary evidence adduced does not negative beyond all question the issues raised by the answer, and that triable questions of fact are presented (Wohl v. Miller, 5 A D 2d 126). Beldock, Acting P. J., Ughetta, Kleinfeld, Pette and Brennan, JJ., concur.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated April 26, 2006, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted. The plaintiff, Marlene Rhian, allegedly was injured at her workplace when she tripped over an upward slope in the floor near her desk which extended over an area approximately one foot long and one foot wide. At the time of the accident, the plaintiff was employed by Yorkshire Food Sales Corp. (hereinafter Yorkshire), and worked in a building leased by Yorkshire from the defendant. Under the terms of a lease between Yorkshire and the defendant, Yorkshire was in exclusive control of the premises and required to make all structural and nonstructural repairs to the leased premises. However, the defendant reserved the right to enter the premises to inspect and make any repairs made necessary by virtue of Yorkshire’s failure to do so. The plaintiff commenced this action against the defendant, as owner of the premises. The defendant subsequently moved for summary judgment dismissing the complaint, contending that it could not be held liable since it was an out-of-possession landlord and it had no responsibility for repair or maintenance of the building under the lease agreement with the tenant, Yorkshire. The Supreme Court denied the motion because the defendant produced for a deposition its managing member, Bruce D. Brown, who also worked in the subject premises as the CEO of Yorkshire. The Supreme Court found the defendant’s reliance on Brown’s deposition testimony “disingenuous” and stated that there was no testimony from the defendant, as the premises owner, with respect to its responsibilities regarding the subject building. We reverse. Generally, an out-of-possession landlord is not liable for *638injuries sustained, at the leased premises unless it has retained control over the premises or is contractually obligated to repair unsafe conditions (see Putnam v Stout, 38 NY2d 607, 618 [1976]; Ortiz v RVC Realty Co., 253 AD2d 802 [1998]; Stark v Port Auth. of N.Y. & N.J., 224 AD2d 681 [1996]). “Reservation of a right of entry may constitute sufficient retention of control to impose liability upon an out-of-possession owner or lessor for injuries caused by a dangerous condition, but only when ‘a specific statutory violation exists and there is a significant structural or design defect’ ” (Lowe-Barrett v City of New York, 28 AD3d 721, 722 [2006] [citation omitted]; see Thomas v Fairfield Invs., 273 AD2d 118 [2000]; Fucile v Grand Union Co., 270 AD2d 227 [2000]; Stark v Port Auth. of N.Y. & N.J., supra; Kilimnik v Mirage Rest., 223 AD2d 530 [1996]). Here, the defendant, an out-of-possession landlord, established its prima facie entitlement to judgment as a matter of law (see Brockington v Brookfield Dev. Corp., 20 AD3d 382, 383 [2005]). In opposition, the plaintiff failed to meet her burden of proof in raising a triable issue of fact as to whether the allegedly dangerous condition which caused her injuries was a significant structural or design defect and statutory violation for which an out-of-possession landlord could be held liable (Seney v Kee Assoc., 15 AD3d 383, 384 [2005]; see Morrone v Chelnik Parking Corp., 268 AD2d 268 [2000]; Kilimnik v Mirage Rest., supra; cf. Gantz v Kurz, 203 AD2d 240 [1994]). Accordingly, the defendant’s motion for summary judgment dismissing the complaint should have been granted. Santucci, J.P., Goldstein, Garni and McCarthy, JJ., concur.

*640In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Dabiri, J.), dated December 17, 2004, which denied their motion for summary judgment dismissing the complaint on the ground that Jose Santiago did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed, with costs. The defendants, via their submissions, made a prima facie showing that Jose Santiago (hereinafter Santiago) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In support of their motion, the defendants relied on, among other things, Santiago’s deposition testimony. However, the plaintiffs, in opposition, raised a triable issue of fact. The plaintiffs relied on the report of Santiago’s treating chiropractor, which specified the decreased ranges of motion in Santiago’s cervical spine and dorsolumbar spine as evidenced by objective findings, as well as evidence of herniated and bulging discs in the cervical and lumbar spine confirmed by magnetic resonance imaging tests. The chiropractor, in his report, also concluded that Santiago’s injuries and limitations were permanent, and causally related to the subject accident. This evidence was sufficient to raise a triable issue of fact as to whether Santiago sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Lim v Tiburzi, 36 AD3d 671 [2007]; Shpakovskaya v Etienne, 23 AD3d 368 [2005]; Clervoix v Edwards, 10 AD3d 626 [2004]; Acosta v Rubin, 2 AD3d 657 [2003]; Rosado v Martinez, 289 AD2d 386 [2001]; Vitale v Lev Express Cab Corp., 273 AD2d 225 [2000]). Any argument raised by the defendants concerning the admissibility of the chiropractor’s report was waived, as the defendants failed to raise that issue before the Supreme Court (see Scudera v Mahbubur, 299 AD2d 535 [2002]; Sam v Town of Rotterdam, 248 AD2d 850 [1998]). Mastro, J.E, Ritter, Skelos, Garni and McCarthy, JJ., concur.

In an action to foreclose a mortgage on real property, the nonparty receiver, B. Mitchell Alter, appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated July 15, 2005, which granted the motion of the defendants R&C General Contractors Corp., Carmine Gar gano, and Rose Gargano to resettle and modify a prior resettled order of the same court dated May 1, 2003. Ordered that the order is reversed, on the law, with costs, and the motion to resettle and modify the prior resettled order is denied. Once the plaintiff’s motion for a deficiency judgment was denied (see RTC Mtge. Trust 1995-S/N1 v R&C Gen. Contrs. Corp., 299 AD2d 469 [2002]), the respondents no longer had any interest in the amount of funds remaining in the receiver’s account (see RPAPL 1371 [3]). Since the respondents had no “legally cognizable interest,” they had no standing to bring the underlying motion (see Matter of Glengariff Health Care Ctr. v New York State Dept. of Health, 205 AD2d 626, 627 [1994]). We note that, as the proceeds from the foreclosure sale were insufficient to pay off the mortgage debt, there was no “surplus” for the purposes of RPAPL 1361 (see Bank of N.Y. v Goodfriend, 247 AD2d 420 [1998]; Evergreen Bank v D & P Justin’s, Inc., 152 AD2d 898, 899 [1989]). Accordingly, there was no money for the receiver to pay into court (see RPAPL 1354 [4]), and no reason for a hearing to be held to determine the “disposition of surplus money” (RPAPL 1361 [3]). Mastro, J.P., Krausman, Florio and Balkin, JJ., concur.

*641In a matrimonial action in which the parties were divorced by judgment entered June 9, 2003, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (McNulty, J.), dated July 7, 2005, as, after a hearing, denied his motion for a downward modification or suspension of his maintenance obligation, and a downward modification of his child support obligation, as provided in a stipulation of settlement dated November 15, 2002, which was incorporated but not merged into the judgment of divorce. Ordered that the order is affirmed insofar as appealed from, with costs. Having executed a stipulation of settlement which was incorporated but not merged into the subsequent judgment of divorce, the defendant was required to establish an unanticipated change in circumstances to justify a downward modification of his child support obligation (see Mahato v Mahato, 16 AD3d 386 [2005]; Praeger v Praeger, 162 AD2d 671 [1990]), and an extreme hardship to justify a suspension or reduction of spousal maintenance (see Domestic Relations Law § 236 [B] [9] [b]; Beard v Beard, 300 AD2d 268 [2002]; Vinnik v Vinnik, 295 AD2d 339 [2002]). The Supreme Court, which heard the evidence and observed the witnesses’ demeanor, properly rejected the defendant’s allegation of an unanticipated change in circumstances warranting a downward modification of his child support obligation (see Douglas v Douglas, 7 AD3d 481 [2004]; Matter of Barrett v Pickett, 5 AD3d 591 [2004]). Furthermore, the evidence at the hearing did not establish that the defendant will suffer extreme hardship in paying for his obligations so as to merit a reduction or suspension of his maintenance obligation (see Norman v Dykman, 23 AD3d 358, 359 [2005]; Beard v Beard, supra). The defendant’s remaining contentions are without merit. Spolzino, J.E, Skelos, Covello and Balkin, JJ., concur.

In an action to recover damages for personal injuries, the defendant City of New York appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County *642(Partnow, J.), dated November 2, 2005, as granted the plaintiffs motion for leave to renew and reargue and thereupon vacated so much of a prior order of the same court dated September 14, 2005 as granted that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it, and instead, denied that branch of the motion and, in effect, reinstated the complaint insofar as asserted against it. Ordered that the order is affirmed insofar as appealed from, with costs. The plaintiff allegedly was injured on April 15, 2000 while crossing Eastern Parkway in the crosswalk at the intersection of Utica Avenue, when he was struck by an automobile driven by the defendant Delroy Thompson. The plaintiff alleged that Thompson was negligent in the operation of his vehicle, and that the defendant third-party plaintiff City of New York was negligent in setting the timing of the traffic signal at the subject intersection. At his deposition, the plaintiff testified that he was in a coma for several days following the accident, and had little or no memory of the relevant facts. At his deposition, Thompson testified that two pedestrians, including the plaintiff, were still crossing the roadway when the signal governing vehicular traffic on Eastern Parkway changed from red to green. The car ahead of Thompson’s swerved, barely avoiding one of the pedestrians. Thompson then tried to follow the first car but, after swerving one way in order to avoid the first pedestrian, he swerved the other way, colliding with the plaintiff. The record further reflects that, approximately three weeks before the accident, in response to a complaint that the traffic signal controller at the subject intersection was malfunctioning, the third-party defendant, Wellsbach Electric Corp. (hereinafter Wellsbach), repaired the traffic signal controller pursuant to a contract with the City. According to Wellsbach, the City’s engineers are responsible for setting the timing sequence for the controller at that intersection. The only witness produced by the City, however, described himself as “just a record searcher” with no knowledge of “technical matters” such as the timing of traffic control devices. Before producing any witness able to interpret traffic signal timing records, and with the plaintiff’s motion, inter alia, to compel production of additional traffic control records pertaining to the subject intersection still pending, the City, among other things, moved for summary judgment dismissing the complaint insofar as asserted against it. In an order dated September 14, 2005 the Supreme Court, inter alia, denied the *643plaintiffs motion and granted that branch of the City’s motion which was for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff subsequently moved for leave to renew and reargue, tendering an affidavit of an eyewitness Jose Cancel who stated that, just before the accident, he was proceeding on foot across Eastern Parkway approximately 10 feet behind the plaintiff, and that the light governing pedestrian traffic at that time was in their favor. According to Cancel, while he and the plaintiff were still crossing, the traffic signal changed, and Cancel observed a car in the extreme right lane on Eastern Parkway approach the intersection at a high rate of speed and strike the plaintiff very hard on the right side of his body. The plaintiff also tendered the affidavit of an expert engineer, Robert T. Hintersteiner, who opined, by way of “preliminary findings” based on available signal timing records, that the pedestrian crossing time of 17.1 seconds on the date of the accident was inadequate to cross Eastern Parkway and in violation of applicable regulations governing uniform traffic control devices (see 17 NYCRR 273.1—273.8). Hintersteiner further indicated that it would be improper for him to offer any final opinion or conclusion without first reviewing the City’s traffic planning study for the subject intersection, which was part of the plaintiffs outstanding discovery requests. In addition to contending that the new evidence raised triable issues of fact, the plaintiff argued that the City had failed to establish its prima facie entitlement to judgment as a matter of law, and that the branch of the City’s motion which was for summary judgment dismissing the complaint insofar as asserted against it, in any event, had been premature in light of outstanding discovery requests (see CPLR 3212 [f]). The Supreme Court granted the plaintiff’s motion and, upon reargument and renewal, inter alia, denied that branch of the City’s motion and reinstated the complaint insofar as asserted against the City. We affirm. To the extent the plaintiff’s motion was based on new evidence, it is properly construed as one to renew, not reargue (see Kasem v Price-Rite Off. & Home Furniture, 21 AD3d 799, 801 [2005]). However, to the extent the plaintiff also argued that the City’s motion should have been denied as premature (see CPLR 3212 [f]), and because it failed to establish a prima facie entitlement to summary judgment, his motion was also one for reargument (see CPLR 2221 [d], [f]). In any event, under the circumstances presented, the Supreme Court did not improvidently exercise its discretion in granting the motion (see CPLR *6442221 [d], [e], [f]; Kasem v Price-Rite Off. & Home Furniture, supra). Moreover, upon granting reargument and renewal, the Supreme Court properly determined that the incomplete record before it did not resolve all material issues of fact regarding the City’s potential negligence and the causal relationship between such negligence and the happening of the accident (see Ayotte v Gervasio, 81 NY2d 1062 [1993]). The resolution of those issues must, at minimum, await completion of discovery (see Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636 [2006]; Urcan v Cocarelli, 234 AD2d 537 [1996]; CPLR 3212 [f]). Crane, J.E, Krausman, Fisher and Dickerson, JJ., concur.

In an action to recover the proceeds of several loans, to foreclose on a security agreement, and to recover upon a personal guaranty, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated November 28, 2005, as denied those branches of its motion which were for summary judgment on its causes of action to recover the proceeds of several loans and to foreclose on a security agreement, on the issue of damages on its cause of action to recover upon a personal guaranty, and dismissing the third counterclaim of the defendant Columbia Telecommunications Group, Inc., alleging breach of contract, and the defendant David Giladi cross-appeals from so much of the same order as granted that branch of the plaintiffs motion which was for summary judgment on the issue of liability on its cause of action to recover upon the personal guaranty. Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements. With respect to that branch of the plaintiff’s motion which was for summary judgment on its cause of action to recover the proceeds of several loans it made to the defendant Columbia *645Telecommunications Group, Inc. (hereinafter Columbia), which were personally guaranteed, by the defendant David Giladi, the plaintiff demonstrated its entitlement to judgment as a matter of law by establishing the existence of the loans, that Columbia defaulted on its obligations as set forth in the loan documents, and that it had the right to accelerate the repayment of the loans upon Columbia’s default (see Layden v Boccio, 253 AD2d 540 [1998]; East N.Y. Sav. Bank v Baccaray, 214 AD2d 601, 602 [1995]). The burden then shifted to Columbia to raise an issue of fact as to whether it had a defense to the accelerated repayment of the loans (see Layden v Boccio, supra at 540; East N.Y. Sav. Bank v Baccaray, supra at 602-603). Columbia raised a triable issue of fact by adducing evidence from which it could be found that the plaintiff and Columbia had entered into an oral agreement to modify the loan documents so as to restructure Columbia’s debt, and that this agreement, which would effectively preclude the plaintiff from accelerating the repayment of the loans, was enforceable (see Rose v Spa Realty Assoc., 42 NY2d 338, 341 [1977]; Sarcona v DeGiaimo, 226 AD2d 1143, 1144 [1996]; Spodek v Riskin, 150 AD2d 358, 360 [1989]; see also Schwartz v Greenberg, 304 NY 250, 254 [1952]). Accordingly, the Supreme Court correctly denied that branch of the plaintiffs motion. With respect to that branch of the plaintiffs motion which was for summary judgment on its cause of action to recover upon a personal guaranty made by the defendant David Giladi, the plaintiff demonstrated its entitlement to judgment as a matter of law by establishing that Giladi unconditionally guaranteed the payment of Columbia’s loans, that Columbia defaulted on its obligations under the loan documents, and that Giladi defaulted on his obligations under the guaranty (see Money Store of N.Y. v Kuprianchik, 240 AD2d 398 [1997]; Naugatuck Sav. Bank v Gross, 214 AD2d 549 [1995]; Key Bank of Long Is. v Munkenbeck, 162 AD2d 503 [1990]). In opposition to the plaintiffs showing, Giladi failed to raise an issue of fact as to his liability to the plaintiff (see Executive Bank of Fort Lauderdale, Fla. v Tighe, 54 NY2d 330, 337 [1981]; Indianapolis Morris Plan Corp. v Karlen, 28 NY2d 30, 35 [1971]). However, an issue of fact exists regarding the amount of Giladi’s liability since the amount of Columbia’s underlying liability to the plaintiff has not been established (see Desiderio v Devani, 24 AD3d 495, 497 [2005]). Under these circumstances, the Supreme Court correctly awarded the plaintiff summary judgment as to liability only on its cause of action to recover upon the personal guaranty (see Ceglia v Marine Midland Bank, 296 AD2d 473, 474 [2002]). The parties’ remaining contentions are without merit. Miller, J.E, Schmidt, Ritter and Angiolillo, JJ., concur.

In a claim to recover damages for lost property, the defendant appeals, as limited by its brief, from so much of a judgment of the Court of Claims (Scuccimarra, J.), dated February 2, 2006, as upon a decision dated December 29, 2005, is in favor of the claimant and against it in the principal sum of $500 for the loss of a gold wedding ring. Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, and the claim is dismissed. “The State’s waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant’s compliance with specific conditions placed on the waiver by the *647Legislature” (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]). Court of Claims Act § 8 specifically provides that the State waives its immunity from liability provided that the claimant “complies with the limitations” of article II of the Court of Claims Act. Thus, the various filing requirements set forth in Court of Claims Act §§10 and 11, which are part of article II, have been referred to as jurisdictional in nature, and the failure to comply with these requirements deprives the Court of Claims of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Flynn v City Univ. of N.Y. at Brooklyn Coll., 6 AD3d 656 [2004]; Scott v State of New York, 204 AD2d 424 [1994]; Lurie v State of New York, 73 AD2d 1006 [1980], affd 52 NY2d 849 [1981]; see also Harris v State of New York, 38 AD3d 144 [2007]). One of the filing requirements of Court of Claims Act § 10 is that an inmate seeking damages for lost property must exhaust the “personal property claims administrative remedy” established by the Department of Correctional Services (Court of Claims Act § 10 [9]). Although Court of Claims Act § 11 (c) states that the State may waive any defense based upon failure to comply with the “time limitations contained in section ten of this act,” the failure to exhaust administrative remedies is not a “time limitation” within the plain language of this provision. Accordingly, the Court of Claims erred in concluding that the State waived the defense of exhaustion of administrative remedies by failing to raise it in its answer or a pre-answer motion to dismiss. Since the claimant did not establish at trial that he complied with this jurisdictional filing requirement, his claim to recover damages for the loss of a gold wedding ring should have been dismissed (see Finnerty v New York State Thruway Auth., supra; Goudie v State of New York, 291 AD2d 432 [2002]; Scott v State of New York, supra). Crane, J.E, Krausman, Fisher and Dickerson, JJ., concur.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated November 2, 2005, which denied its motion for summary judgment dismissing the complaint. *648Ordered that the order is reversed on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted. The plaintiff was jumping rope on a New York City sidewalk when he tripped on a crack in the pavement, thereby sustaining personal injuries. Notably, the plaintiff had noticed the crack before the accident. The defendant established, prima facie, its entitlement to judgment as a matter of law by showing that the doctrine of primary assumption of risk applied. The doctrine of primary assumption of risk “is a form of measurement of a defendant’s duty to a voluntary participant in a sporting activity” (Manoly v City of New York, 29 AD3d 649, 649 [2006]; see Morgan v State of New York, 90 NY2d 471, 484 [1997]; Joseph v New York Racing Assn., 28 AD3d 105, 108 [2006]). A plaintiff who voluntarily participates in a sporting or recreational activity is deemed to consent to the apparent or reasonably foreseeable consequences of that activity. “This includes those risks associated with the construction of the playing surface and any open and obvious condition on it” (Welch v Board of Educ. of City of N.Y., 272 AD2d 469 [2000]). Since the plaintiff acknowledged at his examination before trial that he had observed the crack in the pavement on occasions before the day of his accident, as well as on the day of his accident, but prior to it, he assumed the risk of the injuries which he sustained in the accident (see Manoly v City of New York, supra; Joseph v New York Racing Assn., supra). In opposition to the defendant’s motion, the plaintiff failed to raise a triable issue of fact. Santucci, J.E, Goldstein, Garni and McCarthy, JJ., concur.

In an action by the purchaser of an automobile the complaint alleges two causes of action: (1) against the dealer, Autocraft Hudson, Inc., who sold the automobile, to recover the purchase price based on plaintiff’s rescission of the contract and the return of the automobile to the dealer, due to the dealer’s breach of warranty as to the automobile’s fitness and merchantability; and (2) against the dealer and the manufacturer of the automobile, American Motors Corp., to recover damages of $5,000, by reason of the manufacturer’s negligent and defective construction and assembly of the automobile, the dealer’s failure to repay the purchase price lo plaintiff, the plaintiff’s expenditures for the transportation necessarily required by him in his work as a photographer, and his consequent loss of profits in connection with his work. Plaintiff appeals from an order of the Supreme Court, Kings County, dated December 3, 1959, granting the motion of the manufacturer to dismiss the complaint as to it, pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, on the ground that as to it the complaint fails to state facts sufficient to constitute a cause of action. Order affirmed, with $10 costs and disbursements. To the ultimate consumer or user of an inherently dangerous instrumentality, the manufacturer’s liability for negligence is limited to injury to person or property resulting from any accident attributable to its negligence in manufacture (A. J. P. Contracting Corp. v. Brooklyn Builders Supply Co., 171 Misc. 157, affd. 258 App. Div. 747, affd. 283 N. Y. 692; Trans World Airlines v. Curtiss-Wright Corp., 1 Misc 2d 477, affd. 2 A D 2d 666). It is our opinion that the doctrine of a manufacturer’s liability based on its negligence, to a person not in privity with it, as enunciated in the MacPherson case (MacPherson v. Buick Motor Co., 217 N. Y. 382), should not be further extended. Beldock, Acting P. J., Ughetta, Christ and Pette, JJ., concur.

*650In a proceeding pursuant to CPLR article 75 to stay arbitration of an underinsured motorist claim, the appeal is from an order of the Supreme Court, Rockland County (Smith, J.), entered October 27, 2005, which granted the petition and permanently stayed arbitration. Ordered that the order is affirmed, with costs. The supplementary uninsured/underinsured motorists endorsement (hereinafter the SUM endorsement) of the insurance policy (hereinafter the policy) issued by the petitioner, Assurance Company of America (hereinafter the insurer), to the appellant, Fred Delgrosso (hereinafter the insured), required the insured to provide the insurer a notice of claim under the SUM endorsement “[a]s soon as practicable.” “In interpreting [that] phrase ... in the underinsurance context. . . the insured must give notice with reasonable promptness after the insured knew or should reasonably have known that the tortfeasor was underinsured” (Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487, 495 [1999]; see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 474 [2005]; Matter of Continental Ins. Co. v Marshall, 12 AD3d 508 [2004]; Matter of lnterboro Mut. Indem. Ins. Co. v Brown, 300 AD2d 660 [2002]; Matter of Nationwide Mut. Ins. Co. v DiGregorio, 294 AD2d 579, 580 [2002]). At bar, the insured failed to submit any notice of claim for two years and two months after the accident, one year and three months after he commenced a personal injury action seeking 10 million dollars in damages, and 11 months after he knew the limits of the policy of Luis Alvarado, one of the tortfeasors. Therefore, since the insured knew or should reasonably have known that Alvarado was underinsured 11 months before filing the notice of claim under the SUM endorsement, his notice of claim was untimely (see Rekemeyer v State Farm Mut. Auto. Ins. Co., supra; Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, supra at 496-497). Moreover, since the insurer did not rely on the late notice of legal action defense (see e.g. Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 498 [2002]), but rather, it relied on a late notice under a SUM endorsement where the insured did not previously give any notice of the accident (cf. Rekemeyer v State Farm Mut. Auto. Ins. Co., supra at 476), there was no requirement for the insurer to demonstrate prejudice. Accordingly, under these circumstances, the Supreme Court properly granted the petition and permanently stayed arbitration. *651The insured’s remaining contention is without merit. Spolzino, J.E, Skelos, Covello and Balkin, JJ., concur.

In an action *500to foreclose a mortgage on real property, the plaintiff appeals from two orders of the Supreme Court, Westchester County, dated July 25, 1960 and August 5, 1960, respectively. The first order, dated July 25, 1960, grants the motion of defendant Frank C. Dahm and permits him to pay: (1) the entire unpaid balance of principal and interest owing on the mortgage, (2) the costs of the action, (3) the amount advanced for insurance premiums, and (4) the receiver’s fee and expenses; and directs, inter alia, that upon the making of such payments the complaint be dismissed. The second order, dated August 5, 1960, grants plaintiff’s motion for reargument, but adheres to the original determination. Order of August 5, 1960, affirmed, with $10 costs and disbursements. Appeal from order of July 25, 1960, dismissed, without costs. This order was superseded by the later order of August 5, 1960. The owner of the equity of redemption has a right to redeem at any time before an actual sale under a judgment of foreclosure (Nutt v. Cuming, 155 N. Y. 309; 15 Carmody-Wait, New York Practice, p. 322, § 193, and cases there cited). The amount permitted to be paid here was not merely the total of the installments of principal and interest as to which there had been a default in payment, but the entire unpaid balance of the bond and mortgage. Such balance had become due by reason of the plaintiff mortgagee’s exercise of his option under the mortgage to declare the entire balance due because of the defaults on the payment of the installments. Nolan, P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.

In a proceeding pursuant to Business Corporation Law article 11 for judicial dissolution of Arcarian Systems, Ltd., the petitioners appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Suffolk County (Henry, J.) dated November 7, 2005 which, inter alia, appointed a temporary receiver. Ordered that the appeal is dismissed, without costs or disbursements. CFLR 5526 provides that “[t]he record on appeal from an interlocutory judgment or any order shall consist of the notice of appeal, the judgment or order appealed from, the transcript, if any, the papers and other exhibits upon which the judgment or order was founded and any opinions in the case.” We have repeatedly held that “[i]t is the obligation of the appellant to assemble a proper record on appeal . . . An appellant’s record on appeal must contain all of the relevant papers before the Supreme Court. . . Appeals that are not based upon complete and proper records must be dismissed” (Fernald v Vinci, 13 AD3d 333, 334 [2004], quoting Garnerville Holding Co. v IMC Mgt., 299 AD2d 450 [2002]; see Gaffney v Gaffney, 29 AD3d 857 [2006]; Gerhardt v New York City Tr. Auth., 8 AD3d 427 [2004]). In the present matter, the petitioners presented a record which failed to include all the relevant documents that were before the Supreme Court. Because of this inadequate record, the appeal must be dismissed. Miller, J.E, Schmidt, Ritter and Angiolillo, JJ., concur.

In a proceeding pursuant to CFLR article 78 to review (1) a resolution of the respondent Dutchess County Legislature dated October 13, 2004, which adopted a negative declaration under the State Environmental Quality Review Act regarding the design and reconstruction of the former Dutchess County Infirmary, and (2) a resolution of the respondent Dutchess County Legislature dated October 14, 2004, authorizing the issuance of serial bonds in the total sum of $7,156,000 to pay the cost of the reconstruction of the former Dutchess County Infirmary, the appeal is from a judgment of the Supreme Court, Dutchess County (Dolan, J.), dated September 14, 2005, which, in effect, denied the petition and dismissed the proceeding. Ordered that the judgment is affirmed, with costs. In 2001 the County of Dutchess retained as consultants the firm of Liscum McCormack & Vanvoorhis to conduct a feasibil*652ity study of sites in the eastern part of the County to construct an Eastern Dutchess Government Center (hereinafter the Center). The Center was to provide improved access to government services for residents in that part of the County. Ultimately, the firm recommended that the site of the former Dutchess County Infirmary (hereinafter the Infirmary), located at the intersection of Routes 95 and 97 in the Town of Washington, was the most logical option. The Infirmary was built in or about 1863, and a north wing projecting from the front of the complex was constructed in 1961. The Infirmary, which was closed in 1998, currently houses, in part, the Dutchess County Health Department, the Dutchess County Department of Mental Hygiene, and the Family Partnership Clinic. Thereafter, in 2003, the firm performed a confirmation of the 2001 feasibility study, and reached the same conclusion. The study envisioned renovation of the north and west wings of the Infirmary, and the remaining buildings at the site were to be demolished (hereinafter the Project). The County, as lead agency, prepared a short environmental assessment form (hereinafter EAF) and related attachment for the Project, which it designated as an “unlisted action” pursuant to the State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]). Following public hearings and comment, and review of the EAF, the Dutchess County Legislature (hereinafter the Legislature) adopted resolution No. 204241A, which determined that the Project, with related demolition, was appropriate. In addition, the Legislature issued a negative declaration, determining that the Project would not have a significant adverse effect on the environment, thereby foregoing the need to prepare an environmental impact statement (hereinafter EIS) (see 6 NYCRR 617.7 [a] [2]). The following day, the Legislature adopted resolution No. 204241B, authorizing the issuance of $7,156,000 in serial bonds to pay the cost of the Project. The petitioners David Barrett, Didi Barrett, David Griffith, Ashlyn Barton, and James Barton (hereinafter collectively the petitioners), who reside in the Town of Washington, commenced this CPLR article 78 proceeding against the Legislature, by and through its Chair, Bradford Kendall, and the County (hereinafter collectively the respondents), to annul the resolutions and the negative declaration, alleging that the respondents failed to take the requisite “hard look” at the environmental impacts of the proposed Project. In an answer, the respondents asserted that the petitioners lacked standing to maintain this proceeding. Thereafter, by an amended petition, the petitioners sought *653to add Nancy M. Bailes and Talia Duke as petitioners in this proceeding. By judgment dated September 14, 2003, the Supreme Court, in effect, denied the petition and dismissed the proceeding. The court treated the amended petition as a nullity based upon, inter alia, the petitioners’ failure to comply with the requirements of CPLR 401, and found that the petitioners named in the original petition lacked standing to challenge the respondents’ determination. Initially, since the petitioners failed to obtain leave to join Nancy M. Bailes and Talia Duke as petitioners pursuant to CPLR 401, the Supreme Court properly treated the amended petition as a nullity (see Matter of Board of Educ. of Fla. Union Free School Dist. v DePace, 301 AD2d 521, 522 [2003]; Matter of Aries Striping v Hurley, 202 AD2d 578 [1994]; see also People v Apple Health & Sports Clubs, 206 AD2d 266 [1994]; Vanderbilt Credit Corp. v Chase Manhattan Bank, 100 AD2d 544, 545 [1984]). The petitioners argue that since they reside in close proximity to the site of the Project, they had standing to challenge the Legistature’s resolutions, based on their claims that the Project would lead to increased traffic, and would adversely affect their scenic views of the former Infirmary, aesthetic and historic resources, and the character of the neighborhood. To establish standing under SEQRA, the petitioners must show (1) that they will suffer an environmental “injury that is in some way different from that of the public at large,” and (2) that the alleged injury falls within the zone of interest sought to be protected or promoted by SEQRA (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-774 [1991]; see Matter of Nature’s Trees v County of Suffolk, 293 AD2d 543, 544 [2002]). Standing should be liberally construed so that land use disputes are settled on their own merits rather than by preclusive, restrictive standing rules (Matter of Rosch v Town of Milton Zoning Bd. of Appeals, 142 AD2d 765, 766 [1988]). The Supreme Court properly determined that the petitioners David Barrett and Didi Barrett lacked standing to maintain this proceeding. The petition alleged that the Barretts resided at the “principal intersection” providing access to the site of the Infirmary, located less than half a mile away, and that the proposed project would expose nearby residents to increased traffic. The proximity of their residence to the site of the proposed Project is insufficient, without more, to confer standing, and thus, the Barretts are not entitled to an inference of injury (see Matter of Long Is. Contractors’ Assn. v Town of Riverhead, 17 AD3d 590, 595 [2005]; Matter of Rediker v Zoning Bd. of Appeals of Town *654of Philipstown, 280 AD2d 548, 549-550 [2001]; Matter of Darlington v City of Ithaca, 202 AD2d 831, 833 [1994]; Matter of Casement v Town of Poughkeepsie Planning Bd., 162 AD2d 685 [1990]). Therefore, they were required to demonstrate that they would suffer an environmental injury which is “in some way different from that of the public at large” (Society of Plastics Indus. v County of Suffolk, supra at 774; see Matter of Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 NY2d 428, 433 [1990]). They failed to meet this burden (see Society of Plastics Indus. v County of Suffolk, supra at 775; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 414 [1987]; Matter of Save Our Main St. Bldgs. v Greene County Legislature, 293 AD2d 907, 909 [2002]; Matter of Heritage Coalition v Ithaca Landmarks Preserv. Commn., 228 AD2d 862, 864-865 [1996]; Matter of Many v Village of Sharon Springs Bd. of Trustees, 218 AD2d 845 [1995]). We reach a different conclusion, however, with respect to the petitioners David Griffith, Ashlyn Barton, and James Barton. The petition alleged that Griffith resided directly across from the “main building complex of the Infirmary,” that the Bartons’ property directly abutted the site of the proposed Project, and that they would suffer an adverse scenic view. Other proof in the record established that Griffith had a view of “[o]ne of the older structures and portions of others,” and that the Bartons had a view of the Infirmary from a distance of 1,200 feet (see Matter of Parisella v Town of Fishkill, 209 AD2d 850 [1994]). Since Griffith and the Bartons alleged environmental harm that is different from that suffered by the public at large and that comes within the zone of interest protected by SEQRA, they established the requisite standing to challenge the Legislature’s resolutions (see Society of Plastics Indus. v County of Suffolk, supra; Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Planning Commn. of City of N.Y., 259 AD2d 26, 32-33 [1999]; Matter of Steele v Town of Salem Planning Bd., 200 AD2d 870, 872 [1994]; cf. Matter of Gallahan v Planning Bd. of City of Ithaca, 307 AD2d 684 [2003]). The petitioners further argue that the respondents failed to comply with the procedural and substantive requirements of SEQRA in determining that the Project would have no significant adverse environmental impact. They assert that the EAF identified potential significant adverse impacts on the environment, and that in failing to prepare an EIS, the respondents performed, at best, a cursory analysis under SEQRA. The record reveals that the respondents’ determination to issue a negative declaration, obviating the need for an EIS, was neither *655arbitrary and capricious nor irrational (see CPLR 7803 [3]; Matter of Ellsworth v Town of Malta, 16 AD3d 948 [2005]; Matter of Plaza v City of New York, 305 AD2d 604 [2003]). The primary purpose of SEQRA is “ ‘to inject environmental considerations directly into governmental decision making’ ” (Akpan v Koch, 75 NY2d 561, 569 [1990], quoting Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674, 679 [1988]). To this end, SEQRA mandates the preparation of an EIS when a proposed project “may have a significant effect on the environment” (ECL 8-0109 [2]). Because the operative word triggering the requirement of an EIS is “may,” there is a relatively low threshold for the preparation of an EIS (see Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359 [1986]; Matter of Omni Partners v County of Nassau, 237 AD2d 440, 441 [1997]; Matter of West Branch Conservation Assn. v Planning Bd. of Town of Clarkstown, 207 AD2d 837, 838 [1994]). An EIS is required if the action may include the potential for even one significant adverse environmental impact (see 6 NYCRR 617.7 [a] [1]). A type I action is one that is more likely to require the preparation of an EIS than unlisted actions, such as the instant Project (see 6 NYCRR 617.12 [a]; Matter of Farrington Close Condominium Bd. of Mgrs. v Incorporated Vil. of Southampton, 205 AD2d 623, 624 [1994]). Contrary to the petitioners’ contention, the respondents identified the relevant areas of environmental concern, took a “hard look” at them, and made a “reasoned elaboration” of the basis for their determination (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986]; see Matter of Avy v Town of Amenia, 27 AD3d 557, 558-559 [2006]). The record demonstrates that the respondents issued the negative declaration only after they had prepared an EAF, retained a consultant engineering firm, and thoroughly reviewed the relevant areas of environmental concern, including increased traffic, aesthetic and historic resources, and the character of the neighborhood. The studies and documentation supporting the EAF established that any increase in traffic would be minimal, and that the Project incorporated measures to preserve the historic and aesthetic resources of the former Infirmary. Indeed, the respondents determined to retain and renovate the west wing, which was “the most visible portion of the old facility and . . . in the best condition.” Other evidence showed that the north wing was located directly in front of the buildings to be demolished, and “almost completely blocks any view of those buildings.” Moreover, the respondents did not anticipate any *656impact on the existing traffic patterns as the Project would, house uses currently at the site, and the decrease in staffing levels would represent a 25% decrease in the intensity of use, as compared to the County’s prior use of the Infirmary. Thus, the record established that the Legislature complied with the mandates of SEQRA and that the issuance of the negative declaration was a proper exercise of discretion (see Matter of Wertheim v Albertson Water Dist., 207 AD2d 896 [1994]). Mastro, J.P, Florio, Fisher and Dillon, JJ., concur.

In a proceeding pursuant to Family Court Act article 4, inter alia, in effect, for downward modification of an order of child support, the father appeals, as limited by his brief, from (1) so much of an order of the Family Court, Suffolk County (Grier, S.M.), dated July 26, 2005, as, in effect, denied that branch of his petition which was to vacate an order of support of the same court (Lynaugh, H. E.) dated July 7, 1995, and (2) so much of an order of the same court (Simeone, J.), dated November 21, 2005, as denied his objection to that part of the order dated July 26, 2005, which, in effect, denied that branch of his petition which was to vacate the order of support dated July 7, 1995. Ordered that the appeal from the order dated July 26, 2005 is dismissed, without costs or disbursements, as that order was superseded by the order dated November 21, 2005; and it is further, Ordered that the order dated November 21, 2005 is affirmed insofar as appealed from, without costs or disbursements. The Family Court correctly determined that the father’s contention that the original child support order dated July 7, 1995 was not set pursuant to the Child Support Standards Act (see Domestic Relations Law § 240 [1-b]), was not properly raised in his petition, brought in 2005, inter alia, in effect, for a downward modification of child support (see Family Ct Act § 451; Matter of Dox v Tynon, 90 NY2d 166 [1997]). Pursuant to Family Court Act § 451, although the Family Court may modify, set aside, or vacate any order issued in the course of a support proceeding pursuant to Family Court Act article 4, “the modification, set aside or vacatur shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section.” Additionally, we note that no appeal was ever taken by the father from the original order fixing child support. Prudenti, PJ, Mastro, Santucci and Dillon, JJ., concur.

Proceeding pursuant to CPLR article 78 to review three determinations of the Superintendent of Fishkill Correctional Facility dated January 21, 2005, February 9, 2005, and March 11, 2005, respectively, which affirmed the findings of three Hearing Officers dated January 4, 2005, January 13, 2005, and March 9, 2005, respectively, made after Tier II disciplinary hearings, that the petitioner was guilty of violating prison disciplinary rules and the imposition of penalties thereon. Adjudged that the petition is granted, without costs or disbursements, to the extent that the determination dated March 11, 2005, which affirmed the finding that the petitioner was guilty of violating 7 NYCRR 270.2 (B) (17) (i) is annulled, that finding is vacated, that charge is dismissed, the penalty imposed with, respect thereto is vacated, and the respondents are directed to expunge all references to that finding from the *658petitioner’s institutional record, without prejudice to renewed charges and a de novo hearing and new determination if the respondents be so advised; the petition is otherwise denied, the determinations are otherwise confirmed, and the proceeding is otherwise dismissed on the merits. A written misbehavior report made by an employee who observed the incident or ascertained the facts can constitute substantial evidence of an inmate’s misconduct so long as it is sufficiently relevant and probative (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]; Matter of Cruz v Goord, 260 AD2d 379 [1999]). Contrary to the petitioner’s assertions, the hearing testimony, along with the misbehavior reports, constituted substantial evidence to support the determinations dated January 21, 2005, and February 9, 2005, respectively, that the petitioner was guilty of certain of the charges brought against him (see Matter of Kalwasinski v Goord, 25 AD3d 1050 [2006]; Matter of Therrien v Goord, 20 AD3d 838, 838-839 [2005]; Matter of Stile v Goord, 285 AD2d 693 [2001]; Matter of Navarro v Selsky, 249 AD2d 654 [1998]). The petitioner’s exculpatory testimony presented a credibility issue (see Matter of Burgess v Goord, 30 AD3d 877, 878 [2006]; Matter of Billue v Goord, 28 AD3d 845, 846 [2006]; Matter of Navarro v Selsky, supra). Additionally, the first misbehavior report provided sufficient particulars to satisfy the statutory requirements (see 7 NYCRR 251-3.1), allowing the petitioner to present an effective defense to the charges against him (see Matter of Bossett v Portuondo, 3 AD3d 639, 640 [2004]; Matter of Couch v Goord, 255 AD2d 720, 721-722 [1998]). Further, there is no merit to the petitioner’s contention that he was deprived of his right to call witnesses (see Matter of Hynes v Goord, 30 AD3d 652, 653 [2006]; Matter of Flenon v Goord, 24 AD3d 912, 913 [2005]). The record indicates that the testimony of the requested witness would not have been relevant to the issue of the petitioner’s guilt (see Matter of Hynes v Goord, supra; Matter of Seymour v Goord, 24 AD3d 831, 832 [2005]). However, the determination dated March 11, 2005 must be annulled, as the respondents, in effect, correctly concede, since the minutes of the hearing do not exist (see Matter of Parkinson v New York State Dept. of Correctional Servs., 191 AD2d 635, 636 [1993]; Matter of Gittens v Sullivan, 151 AD2d 481 [1989]; Matter of Jacob v Winch, 121 AD2d 446, 446-447 [1986]; Matter of Dupree v Scully, 100 AD2d 966, 967 [1984]). The annulment is without prejudice to renewed charges, a de novo hearing thereon, and a new determination if the respondents be so advised. Crane, J.E, Rivera, Goldstein and McCarthy, JJ., concur.

In an action to compel defendants to account and to convey to plaintiff a certain two-acre tract of harbor front land and certain other tracts of land, the defendants appeal from an order of the Supreme Court, Suffolk County, dated September 11, 1959, enjoining them from selling or otherwise disposing of said harbor front land or erecting any building thereon upon the filing by plaintiff of a bond for $14,000 to secure defendants against loss or damage “in the event that the plaintiff’s contentions as to the said property is not upheld on the trial of this action ”. Said bond has been approved by the court and “ ordered filed.” Plaintiff, a membership corporation, was formed for the purpose of purchasing a tract of land to be subdivided into plots for each of its subscribing members. It was agreed that certain parts of the tract shall be held by the plaintiff corporation for the benefit of the community. It was also agreed that the defendant corporation shall take title to the entire tract in its name and thereafter shall convey portions of the subdivided tract to the plaintiff’s subscribing members. A dispute arose between the plaintiff and defendants (the individual defendants being officers of the defendant corporation) as to the land which plaintiff claimed should be conveyed to it for the community’s benefit. When defendants refused to convey this disputed land, plaintiff instituted this action and filed a lis pendens. Upon defendants’ motion, which was not opposed, the court made an order canceling the lis pendens upon defendants’ deposit of the sum of $17,000 in cash. Such deposit was made. Thereafter, when the defendants were about to sell the land in dispute, the plaintiff, without moving to open its default, made the motion which resulted in the order appealed from. Its motion was made upon the grounds: (1) that the proposed sale would irreparably injure plaintiff; (2) that it had been agreed that the said land was to be held for the benefit of the community; and (3) that plaintiff did not oppose the cancellation of the lis pendens, because defendants’ attorney promised not to sell the disputed land until the determination of the action. Order reversed, with $10 costs and disbursements, and motion denied. The cancellation of the lis pendens by the deposit of the $17,000, as directed by the prior court order, precludes any other proceeding in this action against the real property described in the cancelled lis pendens. (See Civ. Prac. Act, §§ 121, 124.) Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur. [20 Misc 2d 473.]

In a proceeding under article 78 of the Civil Practice Act, brought by petitioners, four former members of the Police Department of the Village of Brightwaters in Suffolk County: (1) to direct the Suffolk County Police Commissioner to transfer them to the County Police Department; (2) to direct him to continue to employ them in the County Police Department during their good behavior; and (3) to vacate the Civil Service Commission’s resolution denying their demand for such transfer on the ground that they have no permanent status and were merely provisional employees of the Village Police Department when its functions were transferred to the County Police Department, the parties cross appeal: The Police Commissioner and the Civil Service Commission appeal from the order of the Supreme Court, Suffolk County, dated April 22, 1960, which directs them to transfer petitioners to the County Police Department and which vacates said resolution of the Civil Service Commission. The petitioners appeal from said order only insofar as it fails to direct the Police Commissioner to continue them in the employ of the County Police Department during their good behavior; that is, insofar as it fails to give them permanent status in the County Police Department. Order affirmed, without costs. No opinion. Nolan, P. J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.

In an action to recover damages for trespass on land to which plaintiff claims title, and for an injunction, defendants, Goul and Haynes, engineers in the employ of the Department of Public Works of the State of New York, appeal from an order of the Supreme Court, Nassau County, dated June 27, 1960, denying their motion to dismiss the complaint, pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, on the ground that as to them the complaint on its face fails to state facts sufficient to constitute a cause of action, Order affirmed, without costs. The fact that said defendants are employees of the State and were acting in the course of their official duties does not exempt them from personal responsibility for trespass upon plaintiff’s land. (Sanders v. Saxton, 182 N. Y. 477, 479; Litchfield v. Bond, 186 N. Y. 66; Pauchogue Land Corp. v. State Park Comm., 243 N. Y. 15; Ottmann v. Village of Rockville Centre, 275 N. Y. 270; Moynihan v. Todd, 188 Mass. 301; Rhynders v. Greene, 255 App. Div. 401.) Beldock, Ughetta, Kleinfeld and Christ, JJ., concur; Nolan, P. J., concurs in the result, being of opinion that the complaint states facts sufficient to constitute a good cause of action for an injunction, and that it is unnecessary now to determine the issue as to the liability of these two defendants for damages resulting from the claimed trespass.

Proceeding pursuant to CPLR article 78 to review four determinations of the Superintendent of Fishkill Correctional Facility dated April 19, 2005, April 19, 2005, April 25, 2005, and May 6, 2005, respectively, which affirmed the findings of two Hearing Officers dated April 13, 2005, April 13, 2005, April 22, 2005, and May 5, 2005, respectively, made after Tier II disciplinary hearings, that the petitioner was guilty of violating prison disciplinary rules and the imposition of penalties thereon. Adjudged that the petition is granted, without costs or disbursements, to the extent that the first determination dated April 19, 2005, which affirmed the finding that the petitioner was guilty of violating 7 NYCRR 270.2 (B) (17) (iii), and the determination dated April 25, 2005, which affirmed the finding that the petitioner was guilty of violating 7 NYCRR 270.2 (B) (8) (i) and (ii) are annulled, those findings are vacated, those charges are dismissed, the penalties imposed with respect to those charges are vacated, the respondents are directed to expunge all references to those findings from the petitioner’s institutional record; the petition is otherwise denied, the determinations are otherwise confirmed, and the proceeding is otherwise dismissed on the merits. In this proceeding we review determinations regarding four misbehavior reports. The earliest dated report charged the petitioner with a violation of 7 NYCRR 270.2 (B) (17) (iii) (hereinafter rule 116.12): “An inmate shall not alter, forge or counterfeit any document.” The charge stemmed from his creating a personalized grievance form which he sought to replicate in the library to enable him to file grievances. There was, he asserted, a shortage of such forms. In any event, a grievance could be filed on any kind of paper. The Hearing Officer found the petitioner guilty: “It is apparent that this form was forged and counterfeited solely for your use in submitting grievances.” This finding was affirmed by the designee of the respondent Su*660perintendent on April 19, 2005. The determination was irrational and lacked substantial evidence to support it. The terms “forge” and “counterfeit” carry with them an element of intent to defraud or deceive (see Black’s Law Dictionary 354, 661 [7th ed 1999]; cf. Penal Law § 170.05). While the word “alter” could conceivably embrace what the petitioner did to the grievance form in this case—indeed, by filling out any form a person is, in a sense, altering it—the word “alter” as it appears in rule 116.12 has rational meaning only by reference to the words with which it is associated (see McKinney’s Cons Laws of NY, Book 1, Statutes § 239). Thus, the word “alter” in rule 116.12 (cf. Penal Law § 170.00 [7]) carries the same intent to defraud or deceive as do its companion words “forge” and “counterfeit.” In the administrative record before us there is no evidence that the petitioner customized his grievance form with the intent to deceive or defraud (see Matter of Stork Rest. v Boland, 282 NY 256, 273-274 [1940]; Matter of Aiello v Varelas, 113 AD2d 938, 939 [1985]; see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-181 [1978]; cf. Matter of Site Acquisitions v Town of New Scotland, 2 AD3d 1135, 1137 [2003]). Indeed, the Hearing Officer showed that he understood that the petitioner intended no deception when he “accused” the petitioner of having altered the form “solely for your use in submitting grievances.” Thus, the determination sustaining this charge must be annulled. The third misbehavior report charged the petitioner with harassing and interfering with or obstructing a correction officer. The evidence was not sufficient to establish that the petitioner harassed the correction officer (see 7 NYCRR 270.2 [B] [8] [i]) or obstructed or interfered with him (see 7 NYCRR 270.2 [B] [8] [ii]). The officer told the petitioner to move his tray, and the petitioner complied. The officer asked the petitioner what the problem was with the tray, and the petitioner did not immediately answer, but had what the correction officer described at the hearing as an “inquisitive look on his face.” At the hearing the petitioner testified that he was merely listening for his cellmate to tell him what the problem was with the tray. The correction officer then walked away to resume his duties. Under the circumstances, the findings that the petitioner’s facial expression and his momentary nonresponse harassed (see 7 NYCRR 270.2 [B] [8] [i]), or obstructed or interfered with the officer (see 7 NYCRR 270.2 [B] [8] [ii]), were not supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, supra; cf. Matter of Royster v Goord, 26 AD3d 503, 504 [2006]). *661A written misbehavior report made by an employee who observed the incident or ascertained the facts can constitute substantial evidence of an inmate’s misconduct so long as it is sufficiently relevant and probative (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]; Matter of Cruz v Goord, 260 AD2d 379 [1999]). Contrary to the petitioner’s contention, the misbehavior reports, the hearing testimony, together with the circumstantial evidence and reasonable inferences to be drawn therefrom, provided substantial evidence to support the determinations that the petitioner was guilty of the remaining charges brought against him (see Matter of Kalwasinski v Goord, 25 AD3d 1050 [2006]; Matter of Therrien v Goord, 20 AD3d 838, 838-839 [2005]; Matter of Stile v Goord, 285 AD2d 693 [2001]; Matter of Navarro v Selsky, 249 AD2d 654 [1998]). The petitioner’s exculpatory testimony presented a credibility issue (see Matter of Burgess v Goord, 30 AD3d 877, 878 [2006]; Matter of Billue v Goord, 28 AD3d 845, 846 [2006]; Matter of Navarro v Selsky, supra). The petitioner’s remaining contentions either have been rendered academic in light of our determination or are without merit. Crane, J.E, Rivera, Goldstein and McCarthy, JJ., concur.

In two actions, each by a different plaintiff but against the same defendants, one action pending in the Supreme Court, Westchester County (Action No. 1), and the other pending in the Supreme Court, Bronx County (Action No. 2), to recover damages for personal injuries, both plaintiffs appeal from an order of the Supreme Court, Westchester County, dated May 3, 1960, granting the motion of the defendant corporation to consolidate the actions, by removing and consolidating the Bronx County action with the Westchester County action; by amending the title of the consolidated action accordingly; and by directing that the consolidated action proceed in the Supreme Court, Westchester County, under the calendar and index numbers previously assigned to the Westchester action. Order modified by striking out its second, third and fourth decretal paragraphs, and by substituting therefor: (1) a provision removing and consolidating the Westchester County action with the Bronx County action; (2) a provision amending the title of the consolidated action accordingly; (3) a provision directing that the consolidated action proceed in the Supreme Court, Bronx County, under the calendar and index numbers previously assigned to the Bronx action; and (4) a provision directing the Clerk of the County of Westchester to transfer all papers on file with him in the Westchester action to the Clerk of Bronx County. As so modified, order affirmed, with $10 costs and disbursements to plaintiffs payable by the defendant corporation. Plaintiffs, while working in a grease pit on a truck owned by the defendant White Mountain Laundry, Inc., sustained injuries as a result of an explosion in the pit. The pit is in Mount Vernon and is on premises leased by the defendant Laundry from the other defendant Uliano, the owner thereof. In the Westchester action (No. 1), plaintiff Mallack, a resident of Westchester County, commenced the action against both defendants in that county. In the Bronx action (No. 2), plaintiff Bracken, a resident of Bronx County, commenced the action against both defendants in that county. Both actions were commenced at the same time; issue in each action was joined on the same date; and each action was placed on the Jury Calendar in the respective counties for the March 1960 Term. Defendant Laundry moved to consolidate the actions in Westchester County. Both plaintiffs, represented by the same attorneys, objected on the ground that the plaintiff Bracken in the Bronx action would be prejudiced by the consolidation, in that there is a delay of some 45 months in obtaining a jury trial in tort actions in Westchester County, whereas there is a delay of only 24 months in Bronx County. Since the actions were started at the same time, arose out of the same accident, and involve the same issues except for damages, their consolidation was proper. In our opinion, however, it was an improper exercise of discretion to remove the Bronx County action to Westchester County in view of the trial delay of almost four years in Westchester County, compared to the two-year trial delay in Bronx County. . This additional two-year delay would deprive plaintiff Bracken of a substantial right (Friedman v. Kleinman, 275 App. Div. 715; Miro v. Gottheim, 285 App. Div. 834; Spadaccini v. City of N. Y., 9 A D 2d 502). The comparative condition of both calendars is to be given great weight in determining the appropriate county of the Supreme Court in which the consolidated action should be tried. (Gibbs v. Sokol, 216 App. Div. 260.) Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.

In a proceeding pursuant to Social Services Law § 384-b to terminate parental rights on the ground of permanent neglect, the father appeals from an order of the Family Court, Suffolk County (Sweeney, J.), entered March 1, 2006, which denied his motion to vacate an order of fact-finding and disposition (one paper) of the same court (Spinner, J.), dated June 15, 2004, which, after a combined fact-finding and dispositional hearing, upon the father’s default in appearing for a scheduled court date, inter alia, terminated his parental rights and transferred guardianship and custody of the subject child to the petitioner Suffolk County Department of Social Services for the purpose of adoption. *662Ordered that the order is affirmed, without costs or disbursements. Although the father contends that he was not properly served with notice of the petition to terminate his parental rights, he submitted himself to the jurisdiction of the court by appearing on the return date of the petition and at subsequent hearing dates without asserting the defense of lack of personal jurisdiction (see Matter of Springs v Springs, 234 AD2d 552 [1996]; Matter of Rosso v Rosso, 171 AD2d 797 [1991]). The father’s failure to appear on the ultimate hearing date constituted a default, and the court appropriately proceeded by inquest (see Matter of Geraldine Rose W., 196 AD2d 313, 316 [1994]). In order to be relieved of such a default, the father was required to establish a reasonable excuse for his failure to appear, as well as a meritorious defense (see CPLR 5015 [a] [1]; Matter of Michael William O., 16 AD3d 511 [2005]). He failed to meet these requirements (see Matter of Raymond Anthony A., 192 AD2d 529, 530 [1993]). Accordingly, the Family Court properly denied the motion to vacate. The father’s remaining contentions are without merit. Miller, J.E, Schmidt, Ritter and Angiolillo, JJ., concur.

In an action by an insured against an insurer to obtain weekly sickness benefit payments under a policy of group insurance, the insurer, by permission of this court, appeals from an order of the Appellate Term, made January 22, 1960. Said order affirms a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, Seventh District, dated September 11, 1959, entered after a nonjury trial, in favor of the plaintiff. Order affirmed, with costs. In our opinion it was properly determined, both on trial and on appeal to the Appellate Term, that within the meaning of the policy the loss for which plaintiff now makes claim against defendant was caused by sickness for which he, the plaintiff, was not entitled to any benefits under “ any Workmen’s Compensation or Occupational Disease Act or Law ” while the certificate of insurance issued to plaintiff was in effect. Although such sickness may have resulted from an accident which occurred prior to the time when the certificate was issued to plaintiff, there is no proof that the policy excluded coverage for such loss, and the certificate of insurance issued to plaintiff indicates that the policy did not. Nolan, P. J., Pette and Brennan, JJ., concur; Beldock and Christ, JJ., dissent and vote to reverse the order of the Appellate Term and the judgment of the Municipal Court, and to dismiss the complaint, with the following memorandum by Christ, J., in which Beldoek, J., concurs: The plaintiff, to whom defendant had issued a certificate giving him insurance coverage on the basis of the group policy that defendant had issued previously to his employer, claims that his illness is included in such coverage. The issue turns on the paragraph in the certificate which states that the policy provides benefits: (1) “for loss resulting from accidental bodily injury which does not arise out of or in the course of any occupational employment for wage or profit * * * and causing loss commencing while this certificate is in effect ”; and (2) “for loss caused by sickness for which the insured is not entitled to benefits under any Workmen’s Compensation or Occupational Disease Act or Law and which causes loss commencing while this certificate is in effect ”. Plaintiff made two written claims for loss. The first, dated May 14, 1959, is for a period commencing May 6, 1959. The physician’s statement annexed to it is to the effect that the sickness or injury for which the claim is made is “ Myositis Back Ruptured Disc ”; that the condition developed in 1953 while plaintiff was a New York City policeman; that it arose out of such employment; that plaintiff has been continuously unable to work since May 6, 1959; that the time when he could return to work was “ indefinite,” that he “ has above condition on [and] off since 1953,” and that “at time of attack” he “ becomes totally disabled.” The second claim, dated July 10, 1959, recites that plaintiff quit work July 7, 1959. The physician’s statement annexed to it describes the sickness or injury as “Ruptured Disc intervertebral” and, under “ Remarks ”, has the notation “ N. Y. C. P. D. 1953.” As the evidence in the record shows, plaintiff had a fall and ruptured an intervertebral disc in 1953 in the course of performing his duties in the motorcycle squad of the New York City Police Department. On account of that injury he was retired from the police force on a retirement allowance which includes the permanent disability pension of the city. It will be noted that the policy certificate paragraph in question excludes two kinds of loss: the one arising from certain accidental bodily injury and the other arising from sickness for which benefits are payable *505under a workmen’s compensation or occupational disease statute. The loss for which claim is made here is not from sickness as distinguished from bodily injury. It is clearly a loss arising out of the bodily injury sustained in the fall from the motorcycle while employed by the city, and the plaintiff has so represented both in his proof of claim and in his oral examination. The effective date of the policy certificate is November 1, 1958, but injury to which the loss is attributed occurred five years before, in 1953. To permit a recovery here easts a burden upon the company which it did not assume and which it specifically excluded in its policy.

*663In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (McLeod, J.), dated February 7, 2006, which, upon a fact-finding order of the same court dated December 15, 2005, made after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of attempted gang assault in the first degree, attempted assault in the first degree, assault in the second degree, attempted assault in the second degree, assault in the third degree, menacing in the second degree, menacing in the third degree, and criminal possession of a weapon in the fourth degree, adjudged him to be a juvenile delinquent and placed him on probation for a period of 12 months. The appeal brings up for review the fact-finding order dated December 15, 2005. Ordered that the appeal from so much of the order of disposition as placed the appellant on probation for a period of 12 months is dismissed as academic, without costs or disbursements, as the period of placement has expired; and it is further, Ordered that the order of disposition is affirmed insofar as reviewed, without costs or disbursements. The complainant’s testimony at the Rodriguez hearing (see People v Rodriguez, 79 NY2d 445 [1992]), supports the hearing court’s determination that the complainant, who observed the appellant almost every day at school for a period of approximately five months, was sufficiently familiar with the appellant that his show-up identification was merely confirmatory (see Matter of Bruce C., 224 AD2d 685 [1996]; cf. People v Rodriguez, supra; People v Garner, 27 AD3d 764 [2006]; People v Simmons, 247 AD2d 494 [1998]). Accordingly, a Wade hearing (see United States v Wade, 388 US 218 [1967]) was unnecessary (cf. People v Rodriguez, supra). The appellant’s contentions challenging the legal sufficiency of the evidence are unpreserved for appellate review as he failed to raise them before the Family Court (see CPL 470.05 [2]; Matter of Shimon O., 34 AD3d 817 [2006]; Matter of Rahmel S., 4 AD3d 365 [2004]). In any event, viewing the evidence in the light most favorable to the presentment agency (see Matter of Frank C., 283 AD2d 643, 643-644 [2001]), we find that it was legally sufficient to support the determinations made in the fact-finding order (see Matter of Kadeem W., 5 NY3d 864 [2005]; *664Matter of Ashley M., 30 AD3d 178 [2006]; People v Walker, 30 AD3d 215 [2006]). The appellant’s remaining contentions are unpreserved for appellate review or without merit. Santucci, J.P, Goldstein, Garni and McCarthy, JJ., concur.

In an action by a stockholder pursuant to section 977-b of the Civil Practice Act for the appointment of a receiver of the assets in this State of a foreign (Cuban) corporation, allegedly nationalized by the Government of the Republic of Cuba, the defendant foreign corporation appeals from an order of the Supreme Court, Kings County, dated September 14, 1960, which denies its motion for alternative relief: either to vacate an order, dated August 16, 1960, appointing ex parte a temporary receiver of its New York assets or to appoint a temporary receiver of its own choice in place of the receiver previously appointed. Special Term denied the motion on the ground that the issues presented could be decided only after a trial and that the defendant could obtain an early trial by promptly filing an answer, whereupon it would be entitled to an order setting the ease down for trial on a day certain, as a preferred cause (Civ. Prac. Act, § 977-b, subd. 9). Order affirmed, without costs. Although the statute provides that upon an affidavit reciting that personal service of the summons cannot be effected within the State with due diligence and upon a summons and verified complaint alleging that the defendant is a foreign corporation and alleging other jurisdictional facts including the fact that it has been dissolved, nationalized or that it has ceased to do business, the plaintiff, without notice, may apply for the appointment of a temporary receiver and that the court must thereupon appoint such receiver, in our opinion the court was not required to appoint a temporary receiver upon the bare allegations in the complaint in this action, made on information and belief and without alleging any supporting facts, that the Government of Cuba had nationalized the defendant and confiscated all its assets, and that the defendant had ceased to do business and was in the process of liquidating its assets. Neither do we consider the averment on information and belief in plaintiff’s affidavit on the application for the appointment of the i-eceiver that “ the defendant does not do any business within the State of New York, and personal service of the summons cannot therefore be effected within the State of New York with due diligence ”, which averment was apparently based on the fact that the defendant was not qualified to do business in this State, as a recitation of the facts sufficient to require that a receiver be appointed ex parte. Although the word “must” as used in the statute (Civ. Prac. Act, § 977-b) was apparently intended to have an imperative meaning (cf., however, Jenkins, v. Putnam, 106 N. Y. 272; Matter of Thurber, 162 N. Y. 244; Munro v. State of New York, 223 N. Y. 208), we do not believe that it was intended thereby to deprive the court of all discretion to examine the affidavit and pleading submitted and to require proof by affidavit and proper allegations of the facts *507upon which the stated conclusions are based. We are not prepared to say, however, that the complaint and affidavits could not have been accepted as sufficient, as they were here, subject to the power of the Judge who made the order and the power of the court to vacate it upon disclosure of the facts (cf. Civ. Prac. Act, § 131; Jenkins v. Putnam, supra). Upon examination of the facts as disclosed by the papers presented on the motion which resulted in the order appealed from, we are of the opinion that there is at least a question which should be determined on trial, as to whether, within the meaning of the statute (Civ. Prac. Act, § 977-b), the foreign corporate defendant had ceased to do business. The record also discloses that when the temporary receiver was appointed plaintiff had reasonable grounds to believe that service of the summons could not have been made upon defendant with due diligence within the State of New York. It is also our opinion that the personal service of the summons referred to in subdivision 4 of section 977-b of the Civil Practice Act, means valid personal service, sufficient to subject a defendant to the jurisdiction of the court. From the record it is by no means clear that the corporate defendant has been conducting business within the State to such an extent as to subject it to service of process (cf. Tauza v. Susquehanna Coal Co., 220 N. Y. 259; Sterling Novelty Corp. v. Frank & Hirsch Distr. Co., 299 N. Y. 208). We do not reach defendant’s argument that the statute is unconstitutional. The record does not disclose that the question was presented at Special Term (cf., however, Oliner v. American-Oriental Banking Corp., 252 App. Div. 212, affd. 277 N. Y. 588; Stephen v. Zivnostenska Banka Nat. Corp., 3 N Y 2d 931). Neither do we see any improper exercise of discretion in the Special Term's denial of defendant’s motion to substitute the chairman of its board of directors as temporary receiver in the place of the receiver appointed by the court. Nolan, P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.

In an action to recover damages for the wrongful death of plaintiff’s intestate, a pedestrian, who was struck at a grade crossing by a train, operated by defendant, defendant appeals (1) from a judgment of the Supreme Court, Westchester County, entered October 6, 1959 in favor of plaintiff, after a jury trial; and (2) from the denial of a motion to set aside the verdict and for a new trial. Judgment reversed on the facts and a new trial granted, with costs to abide the event. Appeal from denial of motion to set aside the verdict and for a new trial dismissed. No such order is printed in the record. Intestate and a companion, walking easterly, were stopped on the westerly side of defendant’s north and southbound tracks, by its watchman who was standing on the easterly side, in the center of the street constituting the crossing. After a southbound train had passed and from a position 10 feet west of the tracks, the intestate proceeded toward and across the southbound rails and the intervening space, to the northbound rails. He was there killed by a train which had traversed a long straightaway immediately to the south. During this entire period an automatic bell at the scene was sounding and the watchman was holding aloft a “stop” sign. The defendant adduced proof that the intestate ignored a warning from the watchman and, instead, ran across the tracks. In our opinion, the jury’s verdict, apparently based on evidence designed to show that defendant had lulled intestate into a sense of security, was against the weight of the credible evidence. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Brennan, JJ., concur.

In an action for a declaratory judgment, plaintiff appeals from two orders of the Supreme Court, Kings County, dated, respectively, June 22, *5081960 and July 26, 1960. The first order grants defendants’ motion, under rule 106 of the Rules of Civil Practice, to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action; the dismissal, however, being “without prejudice to the commencement of another action when the grounds therefor exist ”. The second order grants plaintiff’s motion for reargument and adheres to the original decision. The complaint alleges that defendants, acting as plaintiff’s insurance brokers, obtained a liability insurance policy for plaintiff but failed in their duty to provide adequate and proper liability insurance for plaintiff; that by reason of defendants’ breach of their duty the insurance carrier, after the occurrence of an accident resulting in death and after the commencement of an action against plaintiff to recover damages for such death, disclaimed liability under the policy; and that, if in the death action judgment be recovered against plaintiff and if it be determined in the subsequent controversy between plaintiff and the insurance carrier that the carrier is not liable under the policy, then and in those events plaintiff should have judgment against defendants for the amount of the judgment in the death action not exceeding $50,000, together with the reasonable counsel fees incurred by plaintiff. Plaintiff contends that this action against its brokers is properly brought now, because if it waits until the determination of the death action and the determination of the insurance carrier’s liability under the policy, this action will have been barred by the Statute of Limitations. In granting defendants’ motion to dismiss the complaint herein for legal insufficiency, Special Term held that there is no present justiciable issue presented to the court requiring a determination; that the court will not, by means of a declaratory judgment, render advisory opinions to litigants; that the action is premature; and that the complaint should be dismissed without prejudice to the commencement of another action when the grounds therefor exist. Order of July 26, 1960, affirmed, with $10 costs and disbursements (cf. Prashker v. United States Guar. Co., 1 N Y 2d 584; Guardian Life Ins. Co. of America v. Graves, 268 App. Div. 809; Federal Int. Banking Co. v. Touche, 248 N. Y. 517; Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287, 300-301). Appeal from order of June 22, 1960, dismissed, without costs, as academic. Such order was superseded by the later order of July 26, 1960. Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.

In an action by a female passenger in a motor vehicle against the corporation, Croyden Shirt Co., Inc., the owner of such vehicle, and against James G. Gaffney and James Gaffney, the owner and operator, respectively, of the other vehicle involved in a collision with the first vehicle, to recover damages for personal injuries, the corporation defendant interposed a third-party complaint against Samuel H. Ulanoff, who is plaintiff’s husband, who is the corporation’s president and principal stockholder, and who was operating its vehicle at the time of the accident. Through an attorney selected by it, the corporation’s insurance carrier is defending the main action by the wife against the corporation. Through another attorney selected by it, such insurance carrier, on the theory that the husband is primarily liable, has instituted the third-party action in the name and on behalf of the corporation against the husband personally; the complaint in the third-party action being verified by such attorney. The corporation as third-party plaintiff, still appearing by the same attorney who instituted the third-party action, appeals from an order of the Supreme Court, Kings County, dated April 30, 1958, granting the motion of the husband as third-party defendant, appearing specially, to dismiss the third-party complaint upon the ground *509that the corporation never authorized the' third-party action and that the attorney who appeared therein for the corporation lacked authority to institute the action against him — the husband. Order affirmed, with $10 costs and disbursements (cf. American Sur. Co. v. Diamond, 1 N Y 2d 594). Nolan, P. J., Ughetta, Christ, Pette and Brennan, JJ., concur. [14 Misc 2d 13.]

In a condemnation proceeding, the NYCTL 1998-1 Trust appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Gorges, J.), dated August 9, 2005, as, in effect, denied that branch of its motion which was to apply an interest rate of 18% to its tax lien against the subject property from the date that title to the subject property vested in the City of New York until the date that the tax lien is paid. Ordered that the order is affirmed insofar as appealed from, with costs. The predecessor in interest to the NYCTL 1998-1 Trust (hereinafter the Trust) purchased a tax lien from the City of New York for the subject property owned by the claimants Frank Vigliarolo and Joseph Vigliarolo. In accordance with Administrative Code of the City of NY § 11-224 (h) and § 11-319 (b) (6), the tax lien certificate provided that the rate of interest would be 18% until the lien balance was paid in full. The City commenced a condemnation proceeding for the subject property, and the Trust filed a notice of claim. Title vested in the City on July 31, 1998. The Trust moved to compel the City to release and turn over to it monies from any final award issued in the condemnation proceeding, in the sum due under the tax lien, including interest at a rate of 18% until the date that the tax lien is paid. The claimants opposed the motion, arguing that the interest rate should be 6% after the date of taking. The Supreme Court directed the City to pay the Trust the money due to it pursuant to the tax lien certificate, with interest payable at a rate of 18% from May 22, 1997 through July 30, 1998, and at a rate of 6% from July 31, 1998 through the date that the tax lien is paid. The Supreme Court properly determined that the interest rate on the Trust’s lien should be 6% after the date of taking. A condemnor takes full title to land, free of all encumbrances and inconsistent proprietary rights (see Matter of County of Nassau [Gelb—Siegel], 24 NY2d 621, 626 [1969]; Copp v Sands Point Mar., 17 NY2d 291, 294 [1966]). Condemnation extinguishes all *666lien interests, including tax lien interests, in the property taken (see Matter of County of Nassau [Gelb—Seigel], supra; Copp v Sands Point Mar., supra at 293; Muldoon v Mid-Bronx Holding Corp., 287 NY 227, 231 [1942]; Matter of County of Rockland [Kohl Indus. Park Co.], 172 AD2d 607 [1991]). Substituted in the place of a tax lien is an “equitable lien . . . against the condemnation award to the extent of each lien and interest thereon as of the date title vested” (County of Rockland [Kohl Indus. Park Co.], supra at 609; Matter of County of Nassau [Gelb—Seigel], supra; Matter of Barber [State Comptroller], 274 App Div 712, 714 [1949]). This is so because the condemnation award takes the place of the land (see Fischer v MMRR Constr. Corp., 204 AD2d 681 [1994]). Accordingly, a tax lienor in a condemnation proceeding may assert only an equitable lien when the condemnation award is apportioned (see Matter of County of Nassau [Gelb—Seigel], supra; Matter of County of Rockland [Kohl Indus. Park Co.], supra). Here, the Trust’s tax lien against the subject property was extinguished on July 31, 1998 the date title vested in the City, and an equitable lien against the condemnation award was substituted in its place. General Municipal Law § 3-a (2) limits “[t]he rate of interest to be paid upon any . . . accrued claim against the municipal corporation [or lien purchaser] arising out of condemnation proceedings . . . [to] six per centum per annum.” A municipal corporation includes a city (see General Municipal Law § 3-a [3]), and a tax lien purchaser stands in the same shoes as a municipality (see Administrative Code §§ 11-319, 11-332 [b]). Therefore, the Trust, which became an equitable lienor upon the City’s taking, is bound by the 6% interest rate after the date of taking (see Matter of County of Rockland [Kohl Indus. Park Co.], supra; cf. Irving Trust Co. v Hughes, 239 App Div 74 [1933]). Miller, J.P., Schmidt, Ritter and Angiolillo, JJ., concur.

On calendar call, oral motion by respondents Garrity and Sparber to dismiss appeals and to vacate the stay heretofore granted by this court on October 10, 1960, denied, on condition that appellants perfect the appeals (other than those which are being discontinued) and be ready to argue or submit them at the December Term, beginning November 28, 1960. The appeals are ordered on the calendar for said term. The record and appellants’ brief must be served and filed on or before December 2, 1960. Cross motion by appellants to discontinue their appeals from the orders made upon their motions addressed to the answers, counterclaims and demands for bill of particulars, granted; such appeals discontinued, without costs. On calendar call, oral cross motion by appellants to extend time to perfect their appeals, granted; time extended to the December Term; the record and appellants’ brief to be served and filed on or before December 2, 1960. Cross motion by appellants to delete certain portions of the record denied. Cross motion by appellants to dispense with the printing of the record, granted to the extent of dispensing with the printing of the answers only; otherwise denied. Five typewritten copies of the answers must be submitted upon the argument of the appeal. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

In two related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Nassau County (Foskey, J.), dated June 24, 2005, which, after a hearing, denied his petition for custody of the parties’ four minor children, granted the mother’s petition for custody of the *667parties’ four minor children, in effect, permitted the mother to relocate with the parties’ children to Florida, and ordered therapeutic visitation with the father in Florida. Ordered that the order is affirmed, without costs or disbursements. Contrary to the father’s contention, there was no basis for the court to recuse itself. Absent a ground for disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of whether recusal is warranted (see People v Moreno, 70 NY2d 403, 405 [1987]). Accordingly, the court providently exercised its discretion by denying the father’s motion for recusal because he failed to set forth any proof of bias or prejudice on the court’s behalf (see People ex rel. Smulczeski v Smulczeski, 18 AD3d 785, 786 [2005]; Modica v Modica, 15 AD3d 635, 636 [2005]; Colella v Colella, 11 AD3d 576 [2004]). The essential consideration in determining custody is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). The Family Court’s custody determination “depends to a great extent upon its assessment of the credibility of the witnesses and upon the assessments of the character, temperament, and sincerity of the parents” (Maloney v Maloney, 208 AD2d 603, 603 [1994]; see Cuccurullo v Cuccurullo, 21 AD3d 983, 984 [2005]). Therefore, it should not be set aside unless it lacks a sound and substantial basis in the record (see Neuman v Neuman, 19 AD3d 383, 384 [2005]; Maloney v Maloney, supra at 603). Here, the Family Court’s determination to award custody to the mother, which was consistent with both the recommendation of the court-appointed psychiatrist and the position of the Law Guardian, has a sound and substantial basis in the record and will not be disturbed. After weighing the appropriate factors set forth in Matter of Tropea v Tropea (87 NY2d 727 [1996]), the court also properly found that it is in the best interests of the children to permit relocation by the mother with the children to Florida (see Kaplan v Kaplan, 21 AD3d 993, 995 [2005]; Aziz v Aziz, 8 AD3d 596, 597 [2004]; Miller v Pipia, 297 AD2d 362 [2002]). The father’s remaining contentions are without merit. Mastro, J.E, Krausman, Florio and Balkin, JJ., concur.

In a proceeding pursuant to Family Court Act article 8, the father appeals from an order of disposition of the Family Court, Orange County (Bivona, J.), dated October 26, 2005, which, after a hearing, directed the issuance of an order of protection, to remain in ef*668feet until July 13, 2007, inter alia, directing the father to refrain from assaulting, stalking, harassing, and menacing the mother. Ordered that the order of disposition is reversed, on the law, without costs or disbursements, the petition is denied, the proceeding is dismissed, and the order of protection dated July 14, 2005 is vacated. The allegations in the petition in a family offense proceeding seeking the issuance of an order of protection must be supported by “a fair preponderance of the evidence” (Family Ct Act § 832; see Matter of Dabbene v Dabbene, 297 AD2d 812 [2002]; Matter of Hogan v Hogan, 271 AD2d 533 [2000]). Here, the evidence proffered in support of the petition failed to establish that the father committed the family offense of harassment as charged in the petition (see Penal Law § 240.26 [3]; Family Ct Act § 812; People v Wood, 59 NY2d 811, 812 [1983]; People v Chasserot, 30 NY2d 898, 899 [1972]; Matter of Garland v Garland, 3 AD3d 496 [2004]; Matter of London v Blazer, 2 AD3d 860, 861 [2003]; Matter of Anonymous v Anonymous, 23 AD3d 461 [2005]; Matter of Sawdey-Dacey v Dacey, 236 AD2d 896 [1997]). Crane, J.P, Goldstein, Lifson and Garni, JJ., concur.

In four related child protective proceedings pursuant to Family Court Act article 10, the father appeals from (1) an order of disposition of the Family Court, Kings County (Freeman, J.), dated November 17, 2005, which, upon a fact-finding order of the same court dated October 3, 2005, made after a hearing, finding that he sexually abused his daughters Beverly R. and *669Christy R, and derivatively neglected his sons Ennio R and Starling R, inter alia, released the children, on consent, to the custody of their adult half-sister Yanelisa R, with a 12-month period of supervision by the respondent Administration for Children’s Services, and denied him visitation with Beverly R and Christy R pending further order of the court, (2) an order of protection of the same court also dated November 17, 2005 directing him to stay away from the children’s mother Martina R, and (3) an order of protection of the same court also dated November 17, 2005 directing him, among other things, to stay away from the children and Yanelisa R, except during court-ordered visitation with the children. The appeal from the order of disposition brings up for review the fact-finding order. Ordered that the appeals from the orders of protection are dismissed as academic, without costs or disbursements; and it is further, Ordered that the appeal from so much of the order of disposition as released the children to the custody of Yanelisa R is dismissed, without costs or disbursements, as no appeal lies from an order entered on the consent of the appealing party; and it is further, Ordered that the order of disposition is affirmed insofar as reviewed, without costs or disbursements. The orders of protection expired by their own terms on November 16, 2006 and the determination of the appeals from those orders would, under the facts of this case, have no direct effect upon the parties. Accordingly, the appeals from the orders of protection must be dismissed as academic (see Matter of Q.-L. H., 27 AD3d 738; Matter of Kraus v Kraus, 26 AD3d 494 [2006]; Matter of Levande v Levande, 308 AD2d 450 [2003]). The portion of the order of disposition which released the children to the custody of their adult half-sister Yanelisa R, was entered on the consent of the parties. The appeal from that portion of the order of disposition must be dismissed, as the father is not aggrieved by a provision included in the order upon his consent (see CPLR 5511; Matter of Hauser v Pruitt, 35 AD3d 740 [2006]; Matter of Kayla M., 295 AD2d 613 [2002]; Matter of Cooper v Administration for Children’s Servs., 293 AD2d 605 [2002]; Matter of Fatima Mc., 292 AD2d 532 [2002]). The Family Court’s determinations that the father sexually abused his twin daughters (see Matter of Chantal M., 34 AD3d 677 [2006]; Matter of Jessica S., 18 AD3d 562 [2005]), derivatively neglected his two sons (see Matter of Samantha B., 5 AD3d 590 [2004]; Matter of Jimmy A., 218 AD2d 734 [1995]; Matter of Dutchess County Dept., of Social Servs. v Douglas E., *670191 AD2d 694 [1993]), and exposed all four children to repeated acts of domestic violence against their mother (see Matter of Aminat O., 20 AD3d 480 [2005]; Matter of Cybill V., 279 AD2d 582 [2001]) were supported by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]; Matter of Tammie Z., 66 NY2d 1 [1985]). The out-of-court statements of the twin daughters, who were six years old when the petitions were filed, corroborated each other (see Matter of Nicole V., 71 NY2d 112, 123-124 [1987]; Matter of Jessica S., supra; Matter of Latisha W., 221 AD2d 645 [1995]), and their statements were further corroborated by the testimony of their older half-sisters regarding the similar modus operand! employed by the father in sexually abusing the older half-sisters years earlier (see Family Ct Act § 1046 [a] [vi]). Since the Family Court’s factual findings depended, in large measure, upon credibility determinations, those findings are entitled to considerable deference on appeal (see Matter of Sheneika V., 20 AD3d 541 [2005]; Matter of Aminat O., supra; Matter of Todd D., 9 AD3d 462, 463 [2004]; Matter of Samantha B., supra; Matter of Bryan S., 286 AD2d 685 [2001]). The father’s remaining contentions are without merit. Prudenti, EJ., Krausman, Dillon and McCarthy, JJ., concur.

In a proceeding pursuant to CPLR article 75 to stay the arbitration of an uninsured motorist claim, the petitioner appeals from a judgment of the Supreme Court, Queens County (Rios, J.), dated May 30, 2006, which, after a hearing, denied the petition and dismissed the proceeding. Ordered that the judgment is reversed, on the law, with costs payable by the respondent William Tubis, the petition is granted, and the arbitration is permanently stayed. In December 1997 the respondent William Tubis allegedly *671sustained injuries in an automobile accident with a vehicle insured by Legion Insurance Company (hereinafter Legion). On March 12, 1998 Tubis applied for no-fault benefits under his own insurance policy with the petitioner State Farm Mutual Automobile Insurance Company (hereinafter State Farm). He simultaneously requested uninsured/underinsured motorist benefits from State Farm, although any claim for uninsured motorist benefits was premature at that time since Tubis had no knowledge that the offending vehicle was uninsured (see Matter of State Farm Mut. Auto. Ins. Co. v Linero, 13 AD3d 546 [2004]). Tubis thereafter commenced a personal injury action against Legion’s insured. However, by orders dated June 26, 2003 and July 25, 2003, the Commonwealth Court of the Commonwealth of Pennsylvania declared Legion insolvent, and appointed the Insurance Commissioner of the Commonwealth of Pennsylvania as Legion’s liquidator and receiver (see Koken v Legion Ins. Co., 831 A2d 1196 [Pa 2003], affd, sub nom. Koken v Villanova Ins. Co., 583 Pa 400, 878 A2d 51 [2005]). By order dated August 22, 2003, the Supreme Court, New York County, placed Legion in liquidation in the state of New York and stayed all legal proceedings with respect to it. On May 12, 2004 Tubis mailed State Farm a demand for arbitration of an uninsured motorist claim arising out of the 1997 accident, but the demand did not mention or refer to Legion’s liquidation. On June 15, 2004 State Farm commenced this proceeding to stay the arbitration, contending that the claim was time-barred because more than six years had elapsed since both the date of the accident and Tubis’s March 1998 claim for uninsured motorist benefits. In opposition, Tubis contended that his claim for uninsured motorist benefits was not untimely, since it actually did not accrue until July 2003, when Legion went into receivership in Pennsylvania, and the offending vehicle consequently became uninsured. In reply, State Farm asserted that it first became aware of the insolvency and liquidation of Legion from the papers submitted by Tubis in opposition to its petition, and disclaimed coverage on the ground that notice of the uninsured motorist claim based on Legion’s insolvency was not provided “[a]s soon as practicable” as required by the policy of insurance. State Farm subsequently was granted leave to supplement the petition to include, inter alia, the late notice as an additional basis for denial of the claim. Following a framed-issue hearing, the Supreme Court denied the petition and dismissed the proceeding, finding that State Farm failed to timely disclaim on the ground that notice of the *672claim was not given “as soon as practicable,” since State Farm did not raise the issue of late notice by Tubis until it submitted its supplemental petition. We reverse. Tubis clearly became aware of Legion’s insolvency, and of his corresponding right to submit a claim for uninsured motorist benefits in mid-to-late 2003, when orders were entered declaring Legion insolvent and appointing a receiver with respect to it. However, Tubis did not assert such a claim and a demand for arbitration until May 12, 2004. Tubis failed to comply with his obligation under the policy to provide notice of the claim “as soon as practicable,” his delay was substantial, and his demand for arbitration was untimely as a matter of law (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742 [2005]; Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468 [2005]; Matter of Hartford Ins. Co. of Midwest v Gamiel, 34 AD3d 244 [2006]; Matter of Interboro Mut. Indem. Ins. Co. v Brown, 300 AD2d 660 [2002]). Furthermore, State Farm was not made aware of Legion’s insolvency as the basis for the uninsured motorist benefits claim until Tubis filed papers in opposition to State Farm’s petition to stay arbitration. State Farm submitted reply papers promptly thereafter, which unequivocally disclaimed coverage on the ground that Tubis failed to provide timely notice under the policy, thereby satisfying its statutory obligation to timely disclaim (see Insurance Law § 3420 [d]; Matter of Allcity Ins. Co. [Jimenez], 78 NY2d 1054 [1991]; Matter of New York Cent. Mut. Fire Ins. Co. v Gonzalez, 34 AD3d 816 [2006]; Matter of American Cas. Ins. Co. v Silverman, 271 AD2d 528 [2000]; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636 [1995]; Matter of Aetna Cas. & Sur. Co. v Scirica, 170 AD2d 448 [1991]). Accordingly, the Supreme Court erroneously concluded that State Farm failed to timely disclaim, and the petition to stay arbitration should have been granted. Mastro, J.E, Krausman, Florio and Balkin, JJ., concur.

In a proceeding pursuant to Family Court Act article 6, the petitioner appeals from (1) an order of the Family Court, Nassau County (McCormack, J.), dated May 2, 2006, which dismissed, with prejudice, his petition for custody and visitation, and (2) an order of the same court also dated May 2, 2006, which barred him from making future custody and visitation applications, in effect, regarding the subject child without the prior written approval of that court. *673Ordered that the orders are affirmed, without costs or disbursements. Upon the adoption of the subject child, following the determination that the petitioner’s consent to the child’s adoption was not required (see Domestic Relations Law § 111 [1] [d]; Matter of Michael D.D.S., 24 AD3d 680, 681 [2005]), the petitioner’s parental rights ceased, and he lacked standing to prosecute a custody and visitation petition regarding the subject child (see Domestic Relations Law § 117 [1] [a]; Matter of Morgaine JJ., 31 AD3d 931, 933-934 [2006]; Matter of Adam S., 287 AD2d 723, 724 [2001]; Matter of Santosky v Roach, 161 AD2d 908 [1990]). Thus, the Family Court properly dismissed the custody and visitation petition. Since the petitioner lacked standing to bring custody and visitation petitions regarding the subject child, the Family Court providently exercised its discretion in barring the petitioner from making future custody or visitation applications, in effect, regarding the subject child without its prior written approval (see Matter of Pignataro v Davis, 8 AD3d 487, 489 [2004]). The petitioner’s remaining contentions are without merit. Crane, J.E, Florio, Fisher and Dickerson, JJ., concur.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Lynaugh, J.), dated June 27, 2005, which, after a hearing, granted the petition for custody of the subject child. Ordered that the order is affirmed, without costs or disbursements. “As between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances” (Matter of Wilson v Smith, 24 AD3d 562, 563 [2005]; see Matter of Bennett *674v Jeffreys, 40 NY2d 543, 545 [1976]; Matter of Esposito v Shannon, 32 AD3d 471, 472 [2006]; Matter of Campo v Chapman, 24 AD3d 439, 439 [2005]). Such “extraordinary circumstances” may exist, not only in cases of “surrender, abandonment, persisting neglect, [and] unfitness,” but where there has been an “unfortunate or involuntary disruption of custody over an extended period of time” (Matter of Bennett v Jeffreys, supra at 546). Here, where “the mother voluntarily surrendered the child, had only sporadic contact with the child before the commencement of [the custody] proceeding, and gave no financial or other support to the child’s caretaker! ],” the petitioner sustained her burden of establishing “extraordinary circumstances” (Matter of Wilson v Smith, supra at 563; see Matter of Campo v Chapman, supra at 439). Furthermore, the child had been living with the petitioner for more than half of his life, the petitioner had provided for all of his needs for the previous six years, and she was willing and able to continue to do so. In contrast, since surrendering the child to the petitioner and until the commencement of this proceeding, the mother had demonstrated neither the willingness nor the ability to parent him. The record supports the court’s conclusion that the child’s interests would best be served by granting custody to the petitioner. Under these circumstances, as it cannot be said that the court’s custody determination lacks a sound and substantial basis in the record, we decline to disturb it (see Matter of Magwood v Martinez, 35 AD3d 743 [2006]; Matter of Coakley v Goins, 240 AD2d 573, 573 [1997]; Matter of Benjamin B., 234 AD2d 457, 458 [1996]). As to the child’s stated preference for living with his mother, that was just one factor for the trial court to consider (see Eschbach v Eschbach, 56 NY2d 167, 172-173 [1982]). In determining the weight to be accorded the child’s preference, “the court must consider the age and maturity of the child” (id. at 173). “The desires of young children ... do not always reflect the long-term best interest of the children” (Matter of Nehra v Uhlar, 43 NY2d 242, 249 [1977]). Indeed, “the reasons for [a child’s] preferences may indicate that no weight should be given the child’s choice” (Matter of Lincoln v Lincoln, 24 NY2d 270, 273 [1969]). Here, the court providently exercised its discretion in according little weight to the child’s stated preference. Contrary to the mother’s contention, the Law Guardian took an active role in the proceeding and accorded the child effective assistance of counsel (see Matter of Brittany W., 25 AD3d 560 [2006]; Matter of Dewey S., 175 AD2d 920, 920-921; cf. Matter of Jamie TT., 191 AD2d 132, 137 [1993]; Koppenhoefer v Koppenhoefer, 159 AD2d 113, 117 [1990]). *675The mother’s remaining contention does not require reversal. Miller, J.P, Schmidt, Ritter and Angiolillo, JJ., concur.

In a proceeding pursuant to General Municipal Law § 50-e, inter alia, for leave to serve a late notice of claim and a related action to recover damages for personal injuries, the New York City Housing Authority appeals from an order of the Supreme Court, Queens County (Dorsa, J.), dated January 9, 2006, which granted the petition for leave to serve a late notice of claim and denied its cross motion to dismiss the complaint. Ordered that the order is reversed, on the law, the facts, and in the exercise of discretion, with costs, the petition is denied, the cross motion to dismiss the complaint is granted, and the proceeding and the complaint are dismissed. Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to commencing an action against the New York City Housing Authority (hereinafter the NYCHA) (see General Municipal Law § 50-e [1] [a]; Public Housing Law § 157 [2]; Figueroa v New York City Hous. Auth., 271 AD2d 238 [2000]; Scantlebury v New York City Health & Hosps. Corp., 4 NY3d 606, 609-610 [2005]; Urena v New York City Health & Hosps. Corp., 35 AD3d 446 [2006]; Maxwell v City of New York, 29 AD3d 540 [2006]). The petitioner failed to serve her notice of claim within the statutory period, and her late service without leave of court was a nullity (see Maxwell v City of New York, supra; Santiago v City of New York, 294 AD2d 483 [2002]; Henry v Aguilar, 282 AD2d 711 [2001]). Therefore, the petitioner’s attempt to amend that notice of claim is not permitted (see Henry v Aguilar, supra). Accordingly, the petitioner’s purported amended notice of claim which is the subject of this proceeding can only be treated as a late notice of claim, as there is no previous valid notice of claim to amend (id.). The Supreme Court improvidently exercised its discretion in granting that branch of the petitioner’s application which was for leave to serve a late notice of claim. In determining whether leave to serve a late notice of claim should be granted, a court should consider, as key factors, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, whether the petitioner has demonstrated a reasonable *676excuse for failing to serve a timely notice of claim, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits (see General Municipal Law § 50-e [5]; Matter of Welch v New York City Hous. Auth., 7 AD3d 805 [2004]; Matter of O’Neal v New York City Hous. Auth., 6 AD3d 445 [2004]; Frith v New York City Hous. Auth., 4 AD3d 390, 391 [2004]). The petitioner failed to demonstrate that the NYCHA acquired actual knowledge of the facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, since the initial notice of claim served in this case made no mention of the allegedly defective condition and failed to specify the location of the accident with sufficient particularity (see Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413 [2004]; Matter of Pruden v New York City Bd. of Educ., 235 AD2d 426 [1997]; Matter of Light v County of Nassau, 187 AD2d 720, 721 [1992]; Matter of Kyser v New York City Hous. Auth., 178 AD2d 601, 602 [1991]). Furthermore, the petitioner failed to demonstrate a reasonable excuse for her one-year delay in commencing this proceeding (see Matter of Hunte v City of New York, 284 AD2d 396, 397 [2001]; Fee v County of Nassau, 269 AD2d 489, 490 [2000]; Levette v Triborough Bridge & Tunnel Auth., 207 AD2d 330, 331 [1994]). Finally, the petitioner failed to rebut the NYCHA’s assertion that the delay prejudiced its ability to investigate and defend against the claim (see Matter of Pico v City of New York, 8 AD3d 287, 288 [2004]; Matter of Nairne v New York City Health & Hosps. Corp., 303 AD2d 409, 410 [2003]). Under the circumstances, the Supreme Court should have granted the NYCHA’s cross motion to dismiss the complaint in the related action (see Meehan v City of New York, 295 AD2d 581, 582 [2002]). Rivera, J.P., Spolzino, Fisher, Lifson and Dickerson, JJ., concur.

*677Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach, J.), rendered April 5, 2005, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s contention, in effect, that the jury’s verdict was repugnant is unpreserved for appellate review (see CPL 470.05 [2]; People v Alfaro, 66 NY2d 985, 987 [1985]). In any event, the verdict was not repugnant since the acquittal on the counts of murder in the second degree, manslaughter in the first degree, and assault in the second degree did not negate any of the elements of criminal possession of a weapon in the second degree (see People v Smith, 23 AD3d 416, 417 [2005]; People v Freeman, 305 AD2d 331 [2003]; People v Gatling, 222 AD2d 606 [1995]). Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The defendant’s contention that the Supreme Court improperly considered charges of which he was acquitted as a basis for imposing the sentence is unpreserved for appellate review (see CPL 470.05 [2]) and, in any event, is without merit (see People v Rambali, 27 AD3d 582, 583 [2006]). Further, the defendant failed to preserve for appellate review his contention that the sentence imposed by the Supreme Court improperly penalized him for exercising his right to a jury trial because he did not set forth the issue on the record at the time of sentencing (see People v Hurley, 75 NY2d 887, 888 [1990]; People v Chapero, 23 AD3d 492, 493 [2005]). In any event, the Supreme Court did not punish him for asserting his right to proceed to trial. Finally, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Rivera, J.P, Santucci, Skelos and McCarthy, JJ., concur.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J), rendered January 31, 2005, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence. *678Ordered that the judgment is affirmed. The defendant’s written waiver of his right to appeal precludes review of his constitutional challenge to the procedure used to adjudicate him as a persistent violent felony offender (see People v Ramos, 7 NY3d 737 [2006]; People v Callahan, 80 NY2d 273, 281 [1992]). In any event, this issue is unpreserved for appellate review as the defendant failed to raise this challenge at sentencing (see People v Daniels, 5 NY3d 738, 740 [2005], cert denied 546 US 988 [2005]; People v Rosen, 96 NY2d 329, 335 [2001], cert denied 534 US 899 [2001]; People v Singh, 35 AD3d 317 [2006]; People v Thompson, 33 AD3d 825 [2006]; People v Rivera, 31 AD3d 790 [2006]). The defendant’s waiver also precludes review of his contention that he was denied the effective assistance of trial counsel in the context of his adjudication as a persistent violent felony offender inasmuch as the defendant is not claiming that his plea was involuntarily obtained (see People v Porter, 268 AD2d 603 [2000]). Mastro, J.E, Ritter, Skelos, Garni and McCarthy, JJ., concur.

Appeals by the defendant from three judgments of the County Court, Orange County (DeRosa, J.), all rendered August 31, 2004, convicting him of driving while ability impaired by drugs and criminal possession of a controlled substance in the seventh degree under indictment No. 03-00891, criminal possession of a controlled substance in the fifth degree under indictment No. 04-00144, and bail jumping in the second degree under indictment No. 04-00137, upon his pleas of guilty, and imposing sen*679tences. The appeals bring up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion under indictment No. 03-00891, which were to suppress a statement and physical evidence, and the denial, after a hearing, of that branch of the defendant’s omnibus motion under indictment No. 04-00144, which was to suppress physical evidence. Ordered that the judgments are affirmed. The factual determinations of the hearing court, insofar as they are based upon that court’s assessment of the witnesses’ credibility, are entitled to great deference on appeal. Those determinations should not be disturbed unless they are clearly unsupported by the record (see People v Baliukonis, 35 AD3d 626 [2006]; People v Lightfoot, 22 AD3d 865 [2005]). Both hearings involved, inter alia, the resolution of questions of probable cause. “Probable cause for a warrantless arrest does not require proof sufficient to support a conviction, ‘but merely information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed’ ” (People v Travis, 266 AD2d 410, 411 [1999], quoting People v McRay, 51 NY2d 594, 602 [1980]; see People v Hartman, 294 AD2d 446 [2002]). The assessment of whether there was probable cause for the arrest of an individual is to be made by the court upon consideration of all the relevant objective facts known to the officer; the subjective beliefs of the officer do not control the determination (see People v Bandera, 204 AD2d 340 [1994]; People v Peters, 136 AD2d 750 [1988]; People v Lopez, 95 AD2d 241 [1983]). There is no basis in the record to disturb the hearing court’s resolution, in reference to indictment No. 04-00144, of the question of Officer Lawson’s credibility as to his observations of the defendant’s actions in the gas station/convenience store (cf. People v Baptiste, 192 AD2d 714 [1993]; People v Burke, 146 AD2d 706 [1989]), or the determination that those observations provided probable cause for the arrest of the defendant and the search incident to that arrest. The County Court properly denied suppression of the physical evidence. With respect to the charges in indictment No. 03-00891, the defendant was observed by Sergeant Broe operating a pick-up truck at an unreasonable speed in the wrong lane of travel, as the defendant approached a three-way intersection in the City of Newburgh. The defendant side-swiped a parked police car, proceeded through the intersection against the traffic light, and jumped out of the vehicle before it came to a complete stop. Those observations were sufficient to provide probable cause to *680believe the defendant committed the misdemeanor offense of reckless driving (see Vehicle and Traffic Law § 1212). Ordinarily, when an officer is authorized to arrest a person for the misdemeanor offense of reckless driving, the preferred procedure is for the officer to issue an appearance ticket rather than place the person under arrest (see People v Howell, 49 NY2d 778 [1980]; GPL 150.20). Here, that procedure could not be followed as the defendant refused to identify himself. The defendant’s refusal to provide identification was sufficient to provide probable cause to believe the defendant was operating the truck without a license (see Vehicle and Traffic Law § 507 [2]; People v Irizarry, 282 AD2d 483 [2001]; People v Grear, 232 AD2d 578 [1996]; People v Watson, 177 AD2d 676 [1991]). Since the defendant refused to identify himself, it was proper for the sergeant to arrest him. While an arrest for the traffic infraction of driving without a license would not provide authority for a search incident to that arrest (see People v Marsh, 20 NY2d 98 [1967]), an arrest for the misdemeanor offense of reckless driving would provide such authority (see People v Troiano, 35 NY2d 476 [1974]). As the sergeant was authorized to search the defendant incident to a lawful arrest, the County Court properly denied that branch of the defendant’s omnibus motion as sought suppression of the crack pipe found in his possession. The defendant made a statement at the hospital that he had “done heroin about an hour ago.” The statement was made to a nurse in response to her query. There is nothing in the record to indicate the statement was in any way triggered by police conduct, let alone police conduct which reasonably could have been expected to evoke the statement (cf. People v Johnson, 285 AD2d 516 [2001]). The police officers were legitimately in the emergency room bay with the defendant, as he was under arrest. There is no indication in the record the defendant, who was aware of the presence of the two police officers, requested that his conversation with the nurse be afforded privacy (cf. People v Borcsok, 107 AD2d 42 [1985]). Thus, the hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress the statement (see People v Eldridge, 213 AD2d 667 [1995]; People v Kelly, 170 AD2d 537 [1991]; People v Murphy, 163 AD2d 425 [1990]; People v Robertson, 149 AD2d 442 [1989]). Miller, J.P., Schmidt, Ritter and Angiolillo, JJ., concur.

Appeal by the de*681fendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered July 21, 2004, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant contends that the evidence was legally insufficient to establish guilt beyond a reasonable doubt and that the verdict was against the weight of the evidence. As an initial matter, the defendant’s argument that the testimony of the People’s witnesses was incredible as a matter of law, and therefore that the evidence was legally insufficient, is unpreserved for appellate review, as the defendant’s motion to dismiss was based on a different argument (see CPL 470.05 [2]; People v Dien, 77 NY2d 885, 886 [1991]; People v Udzinski, 146 AD2d 245, 247 [1989]). In any event, this was not a case where “all of the evidence of guilt comes from a single prosecution witness who gives irreconcilable testimony pointing both to guilt and innocence . . . [where] the jury is left without basis, other than impermissible speculation, for its determination of either” (People v Calabria, 3 NY3d 80, 82 [2004] [internal quotation marks and citation omitted]). Rather, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), there existed a “valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial” (People v Cahill, 2 NY3d 14, 57 [2003], quoting People v Bleakley, 69 NY2d 490, 495 [1987]). Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]). Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, supra). Mastro, J.P, Krausman, Florio and Balkin, JJ., concur.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered September 5, 2002, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant was indicted for both intentional murder (see Penal Law § 125.25 [1]) and depraved indifference murder (see Penal Law § 125.25 [2]) in connection with the shooting and death of David Garcia on or about July 18, 2001. The defendant moved for dismissal of the depraved indifference count of the indictment at the close of the People’s case and at the close of all evidence on the ground that the People’s evidence of the defendant’s conduct was not consistent with “recklessness.” The defendant did not specifically argue in his dismissal motions that the People’s evidence was inconsistent with “depraved indifference.” The motions were denied and the defendant was found guilty of depraved indifference murder. On appeal, the defendant argues, inter alia, that the evidence was legally insufficient to sustain the conviction of depraved indifference murder. There was evidence of intoxication presented at trial which the jury could have found negated the defendant’s intent to kill (see Penal Law § 15.25; People v Gonzalez, 6 AD3d 457 [2004]; People v Taylor, 245 AD2d 399 [1997]; People v Bergamini, 223 *683AD2d 548, 549 [1996]) without negating the defendant’s reckless state of mind (see People v Johnson, 277 AD2d 702, 704 [2000]). Accordingly, the defendant’s arguments that the trial evidence was not consistent with a reckless state of mind were, in effect, rejected by the jury. Viewed in this context, the defendant’s motions to dismiss, which were limited to recklessness without addressing depraved indifference (see People v Payne, 3 NY3d 266, 270-272 [2004]; People v Gonzalez, 1 NY3d 464, 467 [2004]; People v Hafeez, 100 NY2d 253, 258-259 [2003]; People v Bennett, 13 AD3d 384, 385 [2004]), failed to preserve with sufficient specificity the issue now raised on appeal (see CPL 470.05 [2]; People v Parker, 7 NY3d 907 [2006]; People v Gray, 86 NY2d 10, 19 [1995]; People v Johnson, 22 AD3d 601 [2005]; People v Gutierrez, 15 AD3d 502 [2005]). We decline to reach the depraved indifference issue in the exercise of our interest of justice jurisdiction (see CPL 470.15 [3] [c]; [6] [a]; People v Parker, supra, affg 29 AD3d 1161 [2006]). Upon the exercise of our factual review power (see CPL 470.15 [5]), we are “constrained to weigh the evidence in light of the elements of the crime as charged without objection by [the] defendant” (People v Cooper, 88 NY2d 1056, 1058 [1996], quoting People v Noble, 86 NY2d 814, 815 [1995]; see People v Parker, supra at 1162 n 2). Having done so, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Furthermore, the defendant’s trial counsel provided meaningful representation at all stages of the proceedings (see People v Benevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]; see also People v Fair, 308 AD2d 597, 598 [2003]). The defendant’s remaining contentions regarding a communication at the court’s directive, between a court attorney and a juror concerning the juror’s ability to continue to serve, are without merit. Mastro, J.P, Santucci, Fisher and Dillon, JJ., concur.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered March 24, 2006, convicting him of assault in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. A person is justified in using deadly force against another if *685he or she reasonably believes such to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force by such other person (see Penal Law § 35.15 [2]; People v Candelaria, 206 AD2d 385 [1994]). “A court need not charge the defense of justification if, considering the record in the light most favorable to the defendant, no reasonable view of the evidence supports it” (People v Bennett, 279 AD2d 585 [2001], citing People v Reynoso, 73 NY2d 816 [1988]). In the instant case, the defendant testified that he did not intend to stab the complainant, thus undercutting his reliance on a justification defense with respect to the count alleging assault in the first degree (cf. People v Montana, 192 AD2d 623 [1993]; People v Ludwig, 155 AD2d 558 [1989]). Moreover, the defendant failed to adduce any testimony demonstrating that the complainant was about to use deadly force against him. In fact, the defendant did not dispute that the complainant was unarmed. In addition, justification based on self-defense does not apply to a crime based on possession of a weapon (see People v Thomas, 232 AD2d 667 [1996]). Therefore, the Supreme Court properly denied the defendant’s request to charge the jury regarding the justification defense. The defendant’s challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Finger, 95 NY2d 894, 895 [2000]; People v Gray, 86 NY2d 10, 20 [1995]; People v Bynum, 70 NY2d 858, 859 [1987]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see Penal Law § 120.10 [1]; People v Barnett, 16 AD3d 1128, 1129 [2005]; People v Singh, 12 AD3d 537, 538 [2004]). Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]). Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, supra). The defendant’s contention raised in point two of his brief, regarding an evidentiary ruling by the trial court, is without merit. The defendant’s contention raised in point three of his brief, regarding alleged prosecutorial misconduct, is unpreserved for appellate review and, in any event, is without merit. Spolzino, J.P, Skelos, Covello and Balkin, JJ., concur.

Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.), rendered August 15, 2005, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s waiver of his right to appeal was valid (see People v Ciatto, 290 AD2d 560 [2002]), and precludes review of his challenge of the factual sufficiency of his plea allocution (see People v Mydosh, 27 AD3d 580 [2006]; People v Curras, 1 AD3d 445, 446 [2003]; People v Green, 200 AD2d 687 [1994]). In any event, the defendant’s challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review since the defendant failed to move prior to the imposition of sentence to withdraw his plea (see People v Pellegrino, 60 NY2d 636, 637 [1983]; People v Carden, 27 AD3d 573, 573 [2006]). Moreover, the “rare case” exception to the preservation requirement as enunciated in People v Lopez (71 NY2d 662, 666 [1988]), does not apply because the defendant’s allocution did not clearly cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea (see People v Rizzo, 38 AD3d 571 [2007]). The defendant’s remaining contentions are without merit. Crane, J.E, Krausman, Fisher and Dickerson, JJ., concur.

*687Appeal by the defendant from a judgment of the County Court, Nassau County (Belfi, J.), rendered March 26, 2004, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s contention that the indictment should have been dismissed because his defense was improperly impaired by the delay of approximately 18 years between the date the crime was committed and the date of the indictment is unpreserved for appellate review to the extent it is based on his argument that he was prevented from preparing a defense because of dead and otherwise missing witnesses (see CPL 470.05 [2]). In any event, the delay of approximately 18 years between the date of the crime and the indictment charging the defendant with two counts of murder in the second degree did not violate the defendant’s due process right to a speedy trial (see People v LeGrand, 28 AD3d 318 [2006]; People v Vernace, 274 AD2d 595 [2000], affd 96 NY2d 886 [2001]). The delay was based on a good faith determination that the police lacked probable cause to arrest the defendant until several witnesses came forward in 2002 and told law enforcement officials that the defendant admitted killing the victim (see People v Singer, 44 NY2d 241, 254 [1978]; People v LeGrand, supra; People v Evans, 16 AD3d 595, 596 [2005]; People v Vernace, supra). Contrary to the defendant’s contention, the trial court properly exercised its discretion in denying his request to *688introduce expert testimony on identification, particularly since the identifying witness knew the defendant for months (see People v Miller, 8 AD3d 176 [2004], affd 6 NY3d 295 [2006]). Even without expert testimony, the defendant was able to attack thoroughly the People’s identification testimony through cross-examination and summation arguments, and there is no reason to believe that the jury required expert testimony in order to evaluate the identification testimony (see People v Stokes, 25 AD3d 332 [2006]; People v Miller, supra; People v Lopez, 1 AD3d 168 [2003]). The defendant’s contention that admission of autopsy and crime scene photographs of the victim’s body was unduly prejudicial is without merit. Generally, “photographs [of the deceased] are admissible if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered. They should be excluded only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant” (People v Wood, 79 NY2d 958, 960 [1992] [internal quotation marks omitted]). The probable time of death was a material issue in this case. Therefore, the autopsy and crime scene photographs of the deceased’s body were relevant and necessary to this issue, among others (see People v Webster, 248 AD2d 738 [1998]). The defendant’s contention that he was deprived of his rights to a fair trial and due process by the prosecutor’s failure to disclose the home addresses of potential prosecution witnesses is without merit because “[t]here is no statutory basis to compel such disclosure” (People v Estrada, 1 AD3d 928, 929 [2003]; see also CPL 240.20 [1]; People v Izquierdo, 292 AD2d 247 [2002]). Nor does the prosecutor’s failure to divulge this information constitute a violation of Brady v Maryland (373 US 83 [1963]). The defendant’s claim that the addresses may have led to potentially exculpatory material is “entirely speculative and, therefore, is not a basis for reversal” (People v Thornton, 130 AD2d 78, 82 [1987]; see also People v Pannell, 3 AD3d 541 [2004]). The defendant, who was initially charged with intentional murder and depraved indifference murder, was not entitled to jury charges on the lesser-included offenses of manslaughter in the first degree and/or manslaughter in the second degree, because no reasonable view of the evidence would allow a finding that the defendant committed either one of the lesser offenses but not one of the greater offenses (see People v Cleveland, 257 AD2d 689, 692 [1999]). *689Contrary to the defendant’s contention, the trial court properly refused to admit purported past-recollection-recorded evidence, in light of the subject witnesses’ failure to testify that they believed their statements were correct at the time they were made (see People v Fields, 151 AD2d 598 [1989]). The defendant’s contention that the trial court violated People v Payne (3 NY3d 266 [2004]) by submitting to the jury both the intentional murder and depraved indifference murder counts charged in the indictment is not preserved for appellate review (see CPL 470.05 [2]). In any event, “[t]o the extent there was any error in the court’s refusal to dismiss a depraved indifference murder count . . . , there is no basis for reversal because the jury only convicted defendant of intentional murder . . . Although defendant nevertheless claims prejudice, there is no support for his argument” (People v Diaz, 35 AD3d 226 [2006]; see also People v Griffin, 28 AD3d 578 [2006]). The defendant’s remaining contentions are without merit. Mastro, J.B, Krausman, Florio and Balkin, JJ., concur.

Appeals by the defendant from two judgments of the County Court, Orange County (DeRosa, J.), both rendered June 30, 2005, convicting him of attempted assault in the second degree and attempted criminal possession of a controlled substance in the fifth degree under indictment No. 04-819, and bail jumping in the second degree under Superior Court information No. 05-431, upon his pleas of guilty, and imposing sentences. Ordered that the judgments are affirmed. The defendant’s claim that his pleas were not knowing, voluntary, or intelligent is unpreserved for appellate review because the defendant did not move to withdraw his pleas before the court of first instance (see People v Clarke, 93 NY2d 904, 906 [1999]; People v Pellegrino, 60 NY2d 636, 637 [1983]). In any event, his pleas of guilty were knowingly, intelligently, and voluntarily entered (see People v Garcia, 92 NY2d 869, 871 [1998]; People v Harris, 61 NY2d 9, 17 [1983]). The defendant’s valid waiver of his right to appeal forecloses review of his claim that the sentences imposed are excessive (see People v Lopez, 6 NY3d 248, 255 [2006]; People v Patterson, 36 AD3d 832 [2007]). The defendant’s remaining contentions are without merit. Mastro, J.E, Rivera, Dillon and Garni, JJ., concur.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Ohlig, J.), rendered April 28, 2004, convicting her of murder in the first degree, murder in the second degree, and conspiracy in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. The defendant contends that the trial court erred in allowing into evidence certain statements made by a co-conspirator through the testimony of Scott Paget and Michael Zeltzer. However, the defendant’s argument with regard to Paget’s testimony is unpreserved for appellate review. In any event, any error in admitting the co-conspirator’s statements through either witness was harmless since the other evidence against the defendant was overwhelming and there was no significant probability the jury would have acquitted the defendant had the statements been excluded (see People v Crimmins, 36 NY2d 230 [1975]; People v Tai, 273 AD2d 150 [2000]). *690The defendant’s contentions regarding prosecutorial misconduct during summation are without merit (see generally People v Smith, 21 AD3d 386 [2005]). The defendant’s remaining contentions are without merit. Mastro, J.E, Rivera, Dillon and Garni, JJ., concur.

*691In an action, inter alia, to recover damages for violation of the Donnelly Act (General Business Law § 340), common-law unfair competition, tortious interference with contract, slander per se, and libel per se, the defendants Space Hunters, Inc., and John McDermott appeal from an order of the Supreme Court, Suffolk County (Cohalan, J.j, dated April 7, 2006, which denied their cross motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action or, in the alternative, pursuant to CPLR 3211 (c) and 3212 (b) for summary judgment dismissing the complaint. Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying those branches of the cross motion which were pursuant to CPLR 3211 (a) (7) to dismiss the first and second causes of action for failure to state a cause of action and substituting therefor a provision granting those branches of the cross motion, and (2) by adding a provision thereto granting the plaintiffs’ application pursuant to CPLR 3211 (e) for leave to replead the fourth and fifth causes of action; as so modified, the order is affirmed, without costs or disbursements. The plaintiffs Abe’s Rooms, Inc., doing business as Room Finders, and Marilyn Labate, and the defendants Space Hunters, Inc., and John McDermott, who is the owner and operator of Space Hunters, Inc. (hereinafter the defendants), are in the business of finding rooms to rent in the New York metropolitan area. The plaintiffs and the defendants are competitors for clients in the same geographic area. The plaintiffs advertised their services in the defendant Daily News (hereinafter the News) seven days a week for approximately 13 years and in the defendant New York Post (hereinafter the Post) seven days a week since July 2004 (the News and the Post, collectively, the newspaper defendants). The plaintiffs commenced this action against the defendants and the newspaper defendants to recover damages for violation of the Donnelly Act (General Business Law § 340), common-law unfair competition, tortious interference with contract, slander per se, and libel per se. The plaintiffs alleged, inter alia, that the defendants hired actors to file false claims against them with the New York State Division of Human Rights, Housing Unit (hereinafter the NYSDHR), charging them with discriminatory practices in violation of New York State Human Rights *692Law, Executive Law § 297 (2). The plaintiffs also alleged that the defendants made audio and videotapes of them (hereinafter the tapes) purportedly making discriminatory statements to clients that were forwarded to the advertising managers of the classified sections of the newspaper defendants. As a result, the newspaper defendants allegedly ceased running the plaintiffs’ advertisement. The plaintiffs further alleged that the defendants’ practices were employed to run the plaintiffs out of business so that the defendants could monopolize the room-renting market in the geographic area in which both parties did business. The defendants cross-moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action or pursuant to CPLR 3211 (c) and 3212 (b) for summary judgment dismissing the complaint. The Supreme Court denied the cross motion. We modify. The first cause of action alleges a violation of General Business Law § 340 (hereinafter the Donnelly Act). Under the Donnelly Act, “[ejvery contract, agreement, arrangement or combination whereby [a] monopoly in the conduct of any business . . . or in the furnishing of any service in this state, is or may be established or maintained, or whereby . . . [Competition or the free exercise of any activity in the conduct of any business . . . is or may be restrained or whereby . . . [flor the purpose of establishing or maintaining any such monopoly or unlawfully interfering with the free exercise of any activity in the conduct of any business . . . any business ... is or may be restrained, is hereby declared to be . . . illegal and void” (emphasis added). The Donnelly Act mandates that there be a conspiracy or reciprocal relationship between two or more legal entities before liability can be found (see Creative Trading Co. v Larkin-Pluznick-Larkin, Inc., 136 AD2d 461, 462 [1988]; see also Saxe, Bacon & Bolan, P.C. v Martindale-Hubbell, Inc., 710d 87 [1983]). Since the plaintiffs did not allege the existence of a contract, agreement, arrangement, or combination and that the defendants engaged in concerted activity with another legal entity, this cause of action should have been dismissed (see Bello v Cablevision Sys. Corp., 185 AD2d 262 [1992]). As to the second cause of action alleging common-law unfair competition, to sustain such a claim, the plaintiffs must show that the defendants misappropriated the plaintiffs’ labors, skills, expenditures, or good will and displayed some element of bad faith in doing so (see Precision Concepts v Bonsanti, 172 AD2d 737 [1991]; Davis & Co. Auto Parts, Inc. v Allied Corp., 651 F Supp 198 [1986]; Saratoga Vichy Spring Co., Inc. v Lehman, *693625d 1037, 1044 [1980]; Metropolitan Opera Assn., Inc. v Wagner-Nichols Recorder Corp., 279 App Div 632 [1951]). Since the plaintiffs did not allege that the defendants misappropriated their labors, skills, expenditures, or good will or otherwise attempted to capitalize on the plaintiffs’ name or reputation in the room-renting business, the second cause of action also should have been dismissed (see Precision Concepts v Bonsanti, supra; Saratoga Vichy Spring Co., Inc. v Lehman, supra; Davis & Co. Auto Parts, Inc. v Allied Corp., supra; Metropolitan Opera Assn. v Wagner-Nichols Recorder Corp., supra). As to the fourth and fifth causes of action alleging slander per se and libel per se, respectively, the complaint fails to state a cause of action because the plaintiffs failed to satisfy the <£ ‘strictly enforced’ ” pleading requirement of CPLR 3016 (Belvision Inc. v M & G Elecs., 134 AD2d 313, 313-314 [1987], quoting Gardner v Alexander Rent-A-Car, 28 AD2d 667 [1967]; see Erlitz v Segal, Liling & Erlitz, 142 AD2d 710, 712 [1988]). However, since the Supreme Court denied the defendants’ motion in its entirety, it did not reach the plaintiffs’ application pursuant to CPLR 3211 (e) for leave to replead those causes of action. Rather than remit the matter for a determination of the application, in the interest of judicial economy we do so here (see Kaplan v Kaplan, 21 AD3d 993, 995 [2005]). Accordingly, although the complaint failed to set forth the particular words complained of, we conclude that the allegations in the complaint, as supplemented by the plaintiffs’ motion papers in support of their motion for a temporary injunction, disclosed evidentiary facts to justify the granting of their application for leave to re-plead made in opposition to the defendants’ cross motion to dismiss (see Schenkman v New York Coll, of Health Professionals, 29 AD3d 671, 673 [2006]; Imprimis Invs. v Insight Venture Mgt., 300 AD2d 109, 110-111 [2002]; see generally Adika v County of Rockland, 96 AD2d 1025 [1983]). The defendants’ remaining contentions are without merit or have been improperly raised for the first time on appeal (see Dupkanicova v Vasiloff, 35 AD3d 650 [2006]; Board of Educ. of Glen Cove City School Dist. v Nassau County, 33 AD3d 576 [2006]). Schmidt, J.P., Skelos, Lifson and Covello, JJ., concur.

*694In an action, inter alia, for a judgment declaring the respective rights of the parties under an easement and to recover damages for breach of the easement, the defendants Seminole 75 Realty Corp., Sylvan Parking Co., Inc., and Pinnacle Garage Corp. appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated October 13, 2005, as granted those branches of the plaintiffs motion which were for summary judgment on its first cause of action and summary judgment dismissing their first and second counterclaims, and denied that branch of their cross motion which was for summary judgment on their second counterclaim, and the plaintiff cross-appeals, as limited by its brief, from so much of the same order, as denied those branches of its motion which were for summary judgment on its second cause of action, summary judgment dismissing the third counterclaim, and the imposition of sanctions pursuant to 22 NYCRR 130-1.1 (c). Ordered that the order is modified, on the law, by (1) deleting the provision thereof granting that branch of the plaintiffs motion which was for summary judgment on its first cause of action with respect to regulations 2, 4, and 8 and substituting therefor a provision denying that branch of the motion, (2) deleting the provision thereof granting that branch of the plaintiffs motion which was for summary judgment dismissing the second counterclaim with respect to regulations 2, 4, and 8 and substituting therefor a provision denying that branch of the motion, and (3) deleting the provision thereof denying that branch of the cross motion which was for summary judgment on the second counterclaim with respect to regulations 2, 4, and 8 and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements. In April 1986 the plaintiff executed a deed in favor of the defendant Queens 75th Avenue Corporation, conveying property located at 112-25 Queens Boulevard. The deed contained a pro*695vision granting a parking easement to the plaintiff, its tenants, guests, licensees, and employees. This easement provision in the deed was crossed out. The deed was recorded and filed with the Office of the City Register, Queens County. A separate easement agreement was executed between the parties, expressly granting to the plaintiff, its tenants, guests, licensees and employees an easement for the purpose of parking 20 passenger automobiles free of charge in parking spaces designated by the grantor. The easement was to run with the land and to be binding on the parties, their successors, and assigns. On April 11, 1986 the easement agreement was recorded and filed with the Office of the City Register, Queens County. In December of 1992 the defendant Seminole 75 Realty Corp. (hereinafter Seminole) purchased the fee interest in the garage portion of the site. The garage is managed by the defendant Pinnacle Garage Corporation (hereinafter Pinnacle), whose corporate parent is the defendant Sylvan Parking Co., Inc. (hereinafter Sylvan; Seminole, Pinnacle, and Sylvan hereinafter are collectively referred to as the defendants). In or about the fall of 2003 Seminole promulgated regulations concerning the easement. The plaintiff commenced the instant action, inter alia, for a judgment declaring that the defendants’ regulations were unenforceable as violative of the express language of the easement (the first cause of action) and to recover damages for breach of the easement (the second cause of action). The defendants counterclaimed alleging that the easement was invalid (the first counterclaim), that their rules and regulations were valid (the second counterclaim), and that the plaintiff violated the rules and regulations by using more than its allotted 20 spaces (the third counterclaim). The Supreme Court granted those branches of the plaintiffs motion which were for summary judgment on the first cause of action and summary judgment dismissing the defendants’ first and second counterclaims. The court denied those branches of the plaintiffs motion which were for summary judgment on the second cause of action, summary judgment dismissing the defendants’ third counterclaim, and the imposition of sanctions. The court also denied that branch of the defendants’ cross motion which was for summary judgment on the second counterclaim. The defendants appeal, and the plaintiff cross-appeals. We modify. The Supreme Court properly determined that a valid enforceable easement agreement exists, giving the plaintiff, its tenants, guests, licensees, and employees a right to park in any of 20 *696parking spaces designated by the defendants. The plaintiff established, prima facie, that this express easement agreement was properly signed, acknowledged, and recorded, and thus, gave notice to the defendants (see Gisondi v Nyack Mews Condominium, 251 AD2d 371, 372 [1998]; Real Property Law § 291). The deed to the property, which contained an easement provision that had been crossed out, did not raise an issue of fact as to the validity of the separate free-standing easement agreement (see Henrich v Phazar Antenna Corp., 33 AD3d 864 [2006] [“the best evidence of what parties to a written agreement intend is what they say in their writing” (internal quotation marks omitted)]). Thus, the defendants failed to raise an issue of fact on their first counterclaim as to the validity of the easement agreement, and the first counterclaim was properly dismissed (see St. Claire v Empire Gen. Contr. & Painting Corp., 33 AD3d 611 [2006]). Pursuant to that easement agreement, the plaintiffs right to use such parking spaces was limited by the “reasonable rules and regulations as may be established by the grantor” (i.e., the defendants as successors in interest to that grantor). Regulations 1, 3, 5, 6a-c, and 7 are unreasonable as a matter of law. The express easement agreement granted to the plaintiff, its tenants, guests, licensees, and employees, a right to park at will for free (see Dowd v Ahr, 78 NY2d 469, 473 [1991] [“Easements by express grant are construed to give effect to the parties’ intent, as manifested by the language of the grant”]). Regulations 1, 3, 5, 6a-c, and 7 are unreasonable because they change or “limit” the easement (see Drabinsky v Seagate Assn., 239 NY 321, 330-331 [1925] [a rule which limited the number of daily guests an owner in a residential unit could have was unreasonable as a matter of law because it controlled owner’s and his licensee’s right of access to the property rather than regulated it, such as by requiring any licensee to have an identification card]). Regulation 1 requires the plaintiff to furnish the defendants with a list of the vehicles parking in the lot. Regulation 6a-c requires that any change to the vehicles on the list be made only upon 30 days’ written notice. Regulation 3 requires that such listed vehicles shall be provided with a parking sticker and must affix that sticker in order to be able to park in the garage. Regulation 5 provides that the stickers will only be provided to “passenger automobiles” and not to sports utility vehicles, trucks, or vans. Regulation 7 provides that “[n]o in and out service will be provided.” Under these regulations, only those guests or licensees who know a month in advance that they will need to park at the site can make use of the parking. Thus, the plaintiff will lose the ability to offer free parking to *697any guest desiring parking. In addition, regulation 5 is unreasonable as a matter of law because there is nothing in the easement which limits the kind of vehicle that may be parked (see West Babylon Union Free School Dist. v Quality Door & Hardware, 307 AD2d 290 [2003]). Thus, the plaintiff was entitled to summary judgment on the first cause of action with respect to regulations 1, 3, 5, 6a-c, and 7. Regulation 2 is reasonable as it merely requires the plaintiff and its tenants, guests, licensees, and employees to affix a sticker to the vehicles they intend to park in the parking lot. Regulation 4 is reasonable as it merely states that vehicles not so identified will not be allowed to park for free. Regulation 8 is reasonable as it merely states the defendants’ right to make reasonable rules and regulations. Together, regulations 2, 4, and 8 constitute the defendants’ reasonable attempt to set forth a methodology for keeping track of those vehicles in the plaintiffs free spaces (see Drabinsky, supra at 329 [a regulation may merely regulate the manner of enjoyment of the easement]). Thus, that branch of the plaintiffs motion which was for summary judgment dismissing the second counterclaim as to regulations 2, 4, and 8 should have been denied, and the defendants should have been granted summary judgment on the second counterclaim as to those regulations. In addition, the Supreme Court properly denied that branch of the plaintiffs motion which was for summary judgment on its second cause of action to recover damages for breach of the easement. The plaintiffs affidavit failed to establish its entitlement to damages as a matter of law (see St. Claire v Empire Gen. Contr., supra). The court likewise properly denied that branch of the plaintiffs motion which was for summary judgment dismissing the defendants’ third counterclaim, seeking damages for the plaintiffs overuse of the easement. The deposition testimony failed to establish as a matter of law that the defendants cannot show the plaintiffs overuse of the easement and resulting damage (id.). The Supreme Court properly denied that branch of the plaintiffs motion which was for sanctions as the record provided no support for their imposition (see 22 NYCRR 130-1.1 [c]; Bahamonde v State of New York, 269 AD2d 551, 552 [2000]; Musumeci v Musumeci, 267 AD2d 364, 365 [1999]). The plaintiff’s remaining contentions are without merit. Mastro, J.E, Rivera, Dillon and Garni, JJ., concur.

*698In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Nastasi, J.), dated January 7, 2006, which denied their motion for a preliminary injunction and granted the defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (8). Ordered that the order is modified, on the law, by deleting the provision thereof granting the defendant’s cross motion to dismiss the complaint and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements. The Supreme Court properly denied the plaintiffs’ motion for a preliminary injunction based upon the plaintiffs’ failure to serve the order to show cause by which the motion was initiated in the manner specified, and within the time provided (see CPLR 2214 [d]). Even though a court may consider an untimely motion (see CPLR 2004), the plaintiffs here did not request the Supreme Court to forgive late service. However, the Supreme Court erred in granting the defendant’s cross motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint for lack of personal jurisdiction. Generally, a nondomiciliary is subject to the jurisdiction of a New York court if he or she has purposefully transacted business within the state, and there is a “substantial relationship” between this activity and the plaintiffs cause of action (Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]; McGowan v Smith, 52 NY2d 268 [1981]). While the ultimate burden of proof rests with the party asserting jurisdiction (see Brandt v Toraby, 273 AD2d 429, 430 [2000]; Roldan v Dexter Folder Co., 178 AD2d 589 [1991]), the plaintiffs, in opposition to a motion to dismiss pursuant to CPLR 3211 (a) (8), need only make a prima facie showing that the defendant was subject to the jurisdiction of the Supreme Court (see Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]). Here, the plaintiffs made a prima facie showing that the defendant transacted business in the state of New York in connection with their causes of action. In opposition to the *699defendant’s cross motion, the plaintiffs referred to their complaint, which identified an employment contract between the parties demonstrating that the defendant purposefully entered into an employment arrangement with the plaintiffs, both New York corporations, with their principal places of business in White Plains, New York. In addition, the defendant, in his memorandum of law, admitted that he worked in the plaintiffs’ offices in WTiite Plains. The defendant did not dispute any of the facts asserted by the plaintiffs, but merely argued that he was a Connecticut resident and that most of his contacts and clients were located there. Viewing such evidence in the light most favorable to the plaintiffs, as we must (see Brandt v Toraby, supra at 430), the allegations of the complaint demonstrate, prima facie, that the defendant transacted business in New York in connection with the plaintiffs’ causes of action, and he was thus subject to the Supreme Court’s long-arm jurisdiction pursuant to CPLR 302 (a) (1) (see George Reiner & Co. v Schwartz, 41 NY2d 648 [1977]; Opticare Acquisition Corp. v Castillo, supra). Accordingly, the Supreme Court should have denied the defendant’s cross motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint for lack of personal jurisdiction. Spolzino, J.P, Ritter, Covello and Balkin, JJ., concur.

In an action, inter alia, for the return of a down payment given pursuant to a contract for the sale of real property, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Rosenwasser, J.), dated December 16, 2005, as denied those branches of their motion which were for summary judgment on the complaint and dismissing the defendant’s counterclaim alleging breach of contract. Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiffs motion which were for summary judgment on the complaint and dismissing the defendant’s counterclaim alleging breach of contract are granted. The plaintiffs entered into a contract to purchase residential real property from the defendant. Pursuant to the contract of *700sale, the seller agreed to convey both marketable and insurable title to the real property. The subject real property is improved by a dwelling constructed in 1875. A survey of the subject property revealed that the front wall of the 1875 dwelling encroached 4.2 feet onto municipal property. The municipality declined to either sell any portion of the municipal property upon which the dwelling encroached, or to grant an irrevocable license to the defendant to use the municipal property. The Court of Appeals has stated that the test of the marketability of a title “is whether there is an objection thereto such as would interfere with a sale or with the market value of the property ... A marketable title is a title free from reasonable doubt, but not from every doubt... [A] purchaser ought not to be compelled to take property, the possession or title of which he may be obliged to defend by litigation. He should have a title that will enable him to hold his land free from probable claim by another, and one which, if he wishes to sell, would be reasonably free from any doubt which would interfere with its market value” (Voorheesville Rod & Gun Club v Tompkins Co., 82 NY2d 564, 571 [1993] [internal quotation marks and citations omitted]). “The effect that encroachments on a street or highway have on the marketability of title depends in large part on whether it is judged that an owner has, or will continue to have, the right to maintain those encroaching elements or whether the government could compel their removal” (8-91 Warren’s Weed, New York Real Property, Marketability of Title § 91.41). The plaintiffs established their prima facie entitlement to summary judgment on the complaint and dismissing the defendant’s counterclaim alleging breach of contract by demonstrating that the marketability of title was not free from reasonable doubt (see Kera v DeFilippo, 290 AD2d 287, 288 [2002]; Hansen v Pattberg, 212 App Div 49, 51 [1924]; Gruhn v Eppig, 175 App Div 787 [1916]). In order to counter the plaintiffs’ showing, it was incumbent upon the defendant to raise a triable issue of fact that his title was marketable (see Barasky v Huttner, 210 AD2d 367 [1994]). The defendant failed to raise a triable issue of fact as to whether he was or is able to convey marketable title to the subject real property in accordance with the terms of the contract. Therefore, the Supreme Court should have granted the plaintiffs’ motion for summary judgment on the complaint and dismissing the defendant’s counterclaim alleging breach of contract. Rivera, J.E, Santucci, Angiolillo and Dickerson, JJ., concur.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schneier, J.), dated January 13, 2006, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted. The Supreme Court properly concluded that the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456 [2005]; Kearse v New York City Tr. Auth., 16 AD3d 45, 49-50 [2005]). The Supreme Court erred, however, in concluding that the submissions of the plaintiff, in opposition, raised a triable issue *702of fact. The submissions of the plaintiff’s treating physician were without any probative value in opposing the defendants’ motion since they were unaffirmed (see Grasso v Anger ami, 79 NY2d 813, 814-815 [1991]; Elder v Stokes, 35 AD3d 799 [2006]; Felix v New York City Tr. Auth., 32 AD3d 527, 528 [2006]; Bycinthe v Kombos, 29 AD3d 845 [2006]). The affirmations of the plaintiffs examining neuroradiologists were also insufficient in opposing the defendants’ motion since those affirmations did not set forth the findings contained in the respective cervical and lumbar spine magnetic resonance imaging films that they each reviewed. While the affirmed medical reports of the plaintiffs treating orthopedist were based on recent examinations and set forth limitations in the range of motion of the plaintiff’s cervical and lumbar spine, the plaintiff did not interpose any competent medical proof that was contemporaneous with the subject accident showing limitations in these regions of his spine (see Felix v New York City Tr. Auth., 32 AD3d 527, 528 [2006]; Ramirez v Parache, 31 AD3d 415, 416 [2006]; Bell v Rameau, 29 AD3d 839 [2006]; Ranzie v AbdulMassih, 28 AD3d 447, 448 [2006]; Li v Woo Sung Yun, 27 AD3d 624 [2006]; Suk Ching Yeung v Rojas, 18 AD3d 863 [2005]; Nemchyonok v Peng Liu Ying, 2 AD3d 421 [2003]). Lastly, the plaintiff failed to proffer competent medical evidence showing that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Ramirez v Parache, supra; Sainte-Aime v Ho, 274 AD2d 569, 570 [2000]). Accordingly, the Supreme Court erred in denying the defendants’ motion for summary judgment dismissing the complaint. Crane, J.E, Santucci, Florio, Dillon and Balkin, JJ., concur.

In related actions to recover damages for personal injuries *703and wrongful death, (1) the plaintiffs in action No. 1 appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated December 16, 2004, as granted the motion of the defendant City of New York for summary judgment dismissing the complaint in action No. 1 insofar as asserted against it and denied those branches of their cross motion which were for summary judgment on the complaint and for leave to serve an amended notice of claim and, in effect, for leave to serve a late notice of claim, and (2) the plaintiff in action No. 3 appeals from an order of the same court dated May 6, 2005, which granted the motion of the defendant City of New York for summary judgment dismissing the complaint in action No. 3 and denied her cross motion for leave to amend her notice of claim and, in effect, for leave to serve a late notice of claim. Ordered that the order dated December 16, 2004 is affirmed insofar as appealed from; and it is further, Ordered that the order dated May 6, 2005 is affirmed; and it is further, Ordered that one bill of costs is awarded to the respondent. The Supreme Court properly denied the cross motion of the plaintiff in action No. 3 for leave to serve an amended notice of claim, and that branch of the cross motion of the plaintiffs in action No. 1 which was for leave to serve an amended notice of claim. The defendant City of New York satisfied its burden of establishing that the notices of claim of the plaintiffs in action Nos. 1 and 3 (hereinafter the plaintiffs) were insufficient to comply with the requirements of General Municipal Law § 50-e (2), in that they failed to give notice of the plaintiffs’ contentions that the City negligently shut off the public water connection to the sprinkler system for their apartment building during the installation of a new water main in 1993, thus permitting a fire to spread unchecked throughout their building (see O’Brien v City of Syracuse, 54 NY2d 353, 358 [1981]; Ingle v New York City Tr. Auth., 7 AD3d 574 [2004]; Cyprien v New York City Tr. Auth., 243 AD2d 673 [1997]; Cappadonna v New York City Tr. Auth., 187 AD2d 691, 692 [1992]; cf. Brown v City of New York, 95 NY2d 389, 393-394 [2000]; Schwartz v City of New York, 250 NY 332, 335 [1929]). The new theory of recovery contained in the plaintiffs’ proposed amended notices of claim, if interposed, would have substantially altered the nature of their claims. Amendments of a substantive nature are not within the purview of General Municipal Law § 50-e (6) (see Richard v Town of Oyster Bay, 300 AD2d 561 [2002]; White v New York City Hous. Auth., 288 AD2d 150 [2001]). *704The Supreme Court also properly denied the plaintiffs’ requests, in effect, for leave to serve late notices of claim. An application to extend the time within which to serve a notice of claim may be made before or after commencement of an action but not more than one year and 90 days after the cause of action accrued, unless the statute has been tolled (see General Municipal Law § 50-e [5]; Matter of Schmidt v Board of Coop. Educ. Servs. of Nassau County, 253 AD2d 433, 434 [1998]; see also Pierson v City of New York, 56 NY2d 950 [1982]). The statute of limitations and the time within which to seek leave to file a late notice of claim may be tolled by infancy (see Perry v City of New York, 238 AD2d 326, 327 [1997]; see also Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256 [1980]). Here, however, the record is devoid of any factual basis upon which to examine the applicability of the infancy toll. Thus, the cross motion of the plaintiff in action No. 3, and that branch of the cross motion of the plaintiffs in action No. 1 which were, in effect, for leave to serve a late notice of claim were properly denied. In light of the foregoing, we need not address the plaintiffs’ remaining contentions. Mastro, J.E, Goldstein, Lifson and Garni, JJ., concur. [See 6 Misc 3d 1007(A), 2004 NY Slip Op 51726(U) (2004).]

In an action to foreclose a mortgage, the defendant Theresa Jackson appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Kings County (Held, J.), dated September 6, 2006, as, upon an order of the same court dated April 20, 2006, granting those branches of the plaintiffs motion which were for summary judgment and to strike her answer, affirmative defenses, and counterclaims, is in favor of the plaintiff and against her. Ordered that on the Court’s own motion, the notice of appeal from the order dated April 20, 2006 is deemed a premature notice of appeal from so much of the judgment dated September 6, 2006, as, upon the order, is in favor of the plaintiff and against the appellant (see CFLR 5520 [c]); and it is further, Ordered that the judgment dated September 6, 2006 is affirmed insofar as appealed from, with costs. The plaintiff mortgagee Cochran Investment Company, Inc., established its prima facie entitlement to judgment against the *705defendant mortgagor Theresa Jackson (hereinafter the appellant) by submission of the mortgage and unpaid note with the appellant’s signature on them, and evidence of default, thereby shifting the burden to the appellant to raise a triable issue of fact (see Household Fin. Realty Corp. of N.Y. v Winn, 19 AD3d 545 [2005]; Fleet Natl. Bank v Olasov, 16 AD3d 374 [2005]; Coppa v Fabozzi, 5 AD3d 718 [2004]; Republic Natl. Bank of N.Y. v O’Kane, 308 AD2d 482 [2003]; EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2002]). It was incumbent on the appellant “to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff” (Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467 [1997]; see State Bank of Albany v Fioravanti, 51 NY2d 638, 647 [1980]). Even when viewed in the light most favorable to the appellant, her submissions were insufficient to raise a triable issue of fact (see Fleet Mtge. Corp. v Rebich, 227 AD2d 518 [1996]). Accordingly, the Supreme Court properly granted those branches of the plaintiffs motion which were for summary judgment and to strike the appellant’s answer, affirmative defenses, and counterclaims. Mastro, J.E, Fisher, Angiolillo and McCarthy, JJ., concur.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Baisley, J.), entered November 29, 2005, which, upon an order of the same court dated June 8, 2005, granting the motion in limine of the defendant Victor Ho to preclude the plaintiffs’ expert from testifying at trial and to dismiss the complaint and, in effect, denying their motion for leave to amend the bill of particulars, is in favor of the defendant Victor Ho and against them dismissing the complaint insofar as asserted against that defendant. Ordered that the judgment is affirmed, with costs. “While leave to supplement or amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise (see CPLR 3025 [b]), when leave is sought on the eve of *706trial, judicial discretion should be exercised sparingly” (Torres v Educational Alliance, 300 AD2d 469, 470 [2002]; see Rosse-Glickman v Beth Israel Med. Ctr.-Kings Highway Div., 309 AD2d 846 [2003]). In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom (see Matter of Goggins, 231 AD2d 634 [1996]; Caruso v Anpro, Ltd., 215 AD2d 713 [1995]). In addition, the court must examine the underlying merit of the proposed amendment “since to do otherwise would be a waste of judicial resources” (McKiernan v McKiernan, 207 AD2d 825 [1994]; see Polizzi v Profaci, 5 AD3d 456 [2004]). Here, the trial court providently exercised its discretion by, in effect, denying the plaintiffs’ motion for leave to amend the bill of particulars during the trial to include a different theory of medical malpractice. The plaintiffs gave no excuse for their delay in seeking the amendment (see Torres v Educational Alliance, supra) and such delay would have been prejudicial to the defendant Victor Ho (hereinafter the defendant), as the plaintiffs sought to add a theory of recovery which was not readily discernible from the allegations in the complaint and the original bill of particulars (see Rosse-Glickman v Beth Israel Med. Ctr.-Kings Highway Div., supra at 846). Consequently, the trial court properly granted the defendant’s motion to preclude the plaintiffs’ expert from testifying at trial as to this theory, and thus, the court properly dismissed the complaint since the plaintiff failed to establish a prima facie case at trial. Moreover, the plaintiffs’ contention that this issue was previously determined by a court of coordinate jurisdiction, which determination became the law of the case, is raised for the first time on appeal (see Nobles v Procut Lawns Landscaping & Contr., Inc., 7 AD3d 768 [2004]; Matter of Matarrese v New York City Health & Hosps. Corp., 247 AD2d 475 [1998]), and, in any event, is without merit. This issue was not resolved on the merits in the prior determination (see Matter of Oyster Bay Assoc. Ltd. Partnership v Town Bd. of Town of Oyster Bay, 21 AD3d 964, 966 [2005]), nor did the defendant have a “full and fair” opportunity to litigate the issue (People v Evans, 94 NY2d 499, 502 [2000]). Mastro, J.E, Florio, Garni and McCarthy, JJ., concur.

In an action to recover damages for libel and slander, in which the complaint pleads 15 separate causes of action, the plaintiff appeals: (1) from so much of an order of the Supreme Court, Suffolk County, dated July 15, 1960, as denies in part his motion: (a) to strike out certain portions of the joint amended answer of the individual defendants and the corporate defendant, News-Review Publishing Corporation, on the ground that they are indefinite, obscure, irrelevant and redundant, and on the further ground that they are sham; (b) to compel said defendants to separately state and number certain defenses pleaded in their answer; and (e) to strike out certain defenses in said answer on the ground that they are insufficient in law; and (2) from so much of said order as denies in toto the plaintiff’s motion to strike out certain portions of the answer of defendant Southampton Bath & Tennis Club, Inc., on the ground that they are sham. Order modified by striking out its third and fourth decretal paragraphs, and: (1) by substituting therefor a provision granting to the following additional extent the plaintiff’s motion, made by notice of motion dated August 3, 1959, with respect to the said joint answer: (a) striking out the allegations and defenses in said answer described in Item A, subdivisions 1, 4, 5, 8,10, 11, 12,14, 24, 25, 37, 41, 43 and 45, of plaintiff’s said notice of motion; (b) striking out the word “details” and substituting the word “ allegations ” in the allegation in said answer described in Item A, subdivision 2, of said notice of motion; and (c) striking out the allegation in said answer described in Item B, subdivision 2, of said notice of motion; and (2) by substituting a provision granting to the following extent plaintiff’s motion, made by notice of motion dated August 19, 1959, with respect to the answer of the defendant, Southampton Bath & Tennis Club, Inc.: (a) striking out the allegation in said answer described in Item A, subdivisions 1 and 3, of said notice of motion; and (b) striking out the allegation in said answer described in Item B of said notice of motion; and (3) by substituting a provision that, except as specifically granted, plaintiff’s said motions in all other respects are denied. As so modified, order insofar as appealed from, affirmed, with one bill of $10 costs and disbursements to plaintiff payable by all the defendants. Defendants are given leave to serve further amended answers within 20 days after the entry of the order hereon. In our opinion, plaintiff’s objections to the allegations and defenses ordered to be deleted from the respective answers or ordered to be amended, are valid and proper. Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.

In an action to rescind the purchase of a new motor vehicle, based upon defendant’s breach of an implied warranty of merchantability, plaintiff appeals from a judgment of the County Court, Westchester County, dated May 10, 1959, dismissing his complaint at the close of the entire case, after a jury trial. Judgment affirmed, with costs. Plaintiff purchased a motor vehicle from defendant, an authorized dealer. Plaintiff was given a parts warranty under which defendant guaranteed the parts for 90 days or 4,000 miles, whichever occurred first. The day following the delivery of the vehicle and every day thereafter (with few exceptions) plaintiff had difficulty starting the automobile. Within a period of about three weeks following delivery defendant replaced the battery, the voltage regulator and the generator; but the difficulties persisted. About five weeks after delivery plaintiff brought the automobile to defendant for a 1,000-mile inspection. At that time the speedometer registered 1,356 miles. Being dissatisfied with the attempted adjustment, plaintiff demanded of defendant the return of the purchase price, and upon defendant’s refusal brought this action for rescission. After trial before a jury the court *520dismissed the complaint on the ground that there was no implied warranty of merchantability. We do not agree with the learned trial court that there is no implied warranty of merchantability. In our opinion such a warranty accompanied the sale of the automobile (Personal Property Law, § 96, subd. 2; Bencoe Exporting & Importing Co. v. McGraw Tire & Rubber Co., 212 App. Div. 136; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Kelvinator Sales Corp. v. Quabbin Improvement Co., 234 App. Div. 96; Marino v. Maytag Atlantic Co., 141 N. Y. S. 2d 432). We are of the opinion, however, that the evidence adduced fails as a matter of law to establish a breach of the warranty of merchantability (cf. Adams v. Peter Tramontin Motor Sales, 42 N. J. Super. 313). Beldock, Acting P. J., Ughetta, Pette and Brennan, JJ., concur; Kleinfeld, J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum: There was sufficient evidence, offered by the plaintiff, to warrant a finding by the jury that, when the automobile was delivered, it could not be started without a push, or a charging of the battery. Even when plaintiff, at defendant’s suggestion, refrained from using the lights, radio, and electric hand signal, the ear could not be started. Plaintiff gave defendant a reasonable opportunity to put the car into good working condition. After all of defendant’s efforts had failed to remove the difficulty, plaintiff tendered the return of the car, and demanded a refund of the purchase price. Under all the circumstances, whether there was a breach of the warranty of merchantability, is an issue of fact which should have been submitted to the jury.

*707In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Burke, J.), dated November 2, 2005, which denied his motion pursuant to CPLR 3211 to dismiss the complaint and granted the plaintiffs cross motion for leave to file an amended complaint. Ordered that the order is reversed, on the law, with costs, the motion to dismiss the complaint is granted, and the cross motion for leave to file an amended complaint is denied. The Supreme Court erred in granting the plaintiffs cross motion for leave to amend the complaint. Although leave to amend a complaint should be freely granted (see CPLR 3025 [b]; Henderson v Gulati, 270 AD2d 308 [2000]), when a proposed amendment is devoid of merit or fails to state a cause of action, leave to amend should be denied (see Guzov v Manor Lodge Holding Corp., 13 AD3d 482 [2004]; Mohan v Hollander, 303 AD2d 473 [2003]). Here, while the plaintiff sought to amend the complaint to claim that she contracted with the defendant Stephen D. LaFountain personally, the contract at issue is clear and unambiguous that the plaintiff contracted with Stephen LaFountain Carpentry, LLC (hereinafter the LLC). When an agreement is clear and complete on its face, it should be enforced according to its terms without looking to extrinsic evidence to create ambiguities (see South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272, 277 [2005]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). The contract further provides that any work commenced prior to the formation of the LLC and the execution of the contract is encompassed by its terms, which apply only to the LLC and not to LaFountain personally. Therefore, the plaintiff has no valid contract cause of action against LaFountain personally (see Star Video Entertainment v J & I Video Distrib., 268 AD2d 423 [2000]; Perma Pave Contr. Corp. v Paerdegat Boat & Racquet Club, 156 AD2d 550 [1989]), and the proposed amended complaint was devoid of merit. *708The Supreme Court should have granted LaFountain’s motion to dismiss the complaint. Since the plaintiff claims that LaFountain is the alter ego of the LLC, the LLC is a necessary party to this action (see CPLR 1001). However, the LLC filed for bankruptcy protection in November 2004 and the plaintiff cannot maintain her alter ego claim outside of the bankruptcy proceedings (see St. Paul Fire & Mar. Ins. Co. v PepsiCo, Inc., 884d 688, 701-704 [1989]). Contrary to the plaintiffs contentions, there was no showing in the record that the bankruptcy trustee abandoned the claim, which therefore remains property of the bankruptcy estate (see 11 USC § 554). The plaintiffs remaining contentions are without merit. Schmidt, J.E, Skelos, Lifson and Covello, JJ., concur.

In an action: (1) to declare invalid a deed, dated October 18, 1951, transferring from plaintiff to defendant the title to certain real property; (2) to-direct defendant to reconvey such title pursuant to an alleged agreement under which the title had reverted to the plaintiff; and (3) to reform said deed so as to limit the property conveyed to the land appurtenant to the American Legion building and so as to exclude certain other land inadvertently included, namely, land used as the Village Barn and the Village Lockup, the plaintiff appeals from a judgment of *521the Supreme Court, Suffolk County, rendered March 11, 1960, dismissing the complaint at the close of the plaintiff’s case after a nonjury trial. Judgment reversed on the law and new trial granted. The deed sought to be declared invalid was made and delivered for a consideration of $50. Evidence was adduced that the value of the American Legion building and land was approximately $5,000. In our opinion the evidence is sufficient to establish prima facie that the conveyance was made in violation of the State Constitution (art. VIII, § 1) and that the deed which purported to effectuate the conveyance was executed and delivered without the authorization of the Village Board of the plaintiff village. Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated January 19, 2005, as granted that branch of the defendants’ motion pursuant to CPLR 4404 (a) which was for a new trial on the issue of damages unless he stipulated to reduce the verdict as to damages for past pain and suffering from the sum of $180,000 to the sum of $60,000 and as to damages for future pain and suffering from the sum of $343,500 to the sum of $69,000. Ordered that the order is affirmed insofar as appealed from, without costs or disbursements. Contrary to the plaintiffs contentions, the Supreme Court had the authority to entertain the defendants’ motion to set aside the verdict (see CPLR 4405). The defendants made an oral motion to set aside the verdict at the conclusion of the trial (see e.g. Brown v Long Is. R.R., 304 AD2d 601 [2003]) and submitted their written support of the motion within the extended time limitation set by the trial court without objection (see Manning v Brookhaven Mem. Hosp. Med. Ctr., 11 AD3d 518, 520 [2004]). The plaintiff’s remaining contentions are without merit. Miller, J.E, Spolzino, Goldstein and McCarthy, JJ., concur.

In an action for a divorce and ancillary relief, the plaintiff wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Krauss, J.), dated January 9, 2006, as denied that branch of her motion pursuant to CPLR 3126 which was, inter alia, to preclude the defendant from introducing evi*709dence in support of his claims or defenses, and the defendant husband cross-appeals, as limited by his brief, from so much of the same order as granted those branches of the plaintiff wife’s motion which were for reargument of his oral application, in effect, to end the disclosure in the action, to reopen disclosure, for leave to amend her complaint, and for a valuation of the marital residence. Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements. Contrary to the defendant husband’s contention, the Supreme Court acted properly in reopening disclosure (see Perez v Perez, 131 AD2d 451 [1987]). Furthermore, the Supreme Court properly granted that branch of the plaintiff wife’s motion which was for leave to amend her complaint (see CPLR 3025 [b]; Surgical Design Corp. v Correa, 31 AD3d 744, 745 [2006]). The Supreme Court also properly ordered a valuation of the marital residence (see 22 NYCRR 202.18). Finally, the Supreme Court did not err in denying that branch of the plaintiff wife’s motion which was, inter alia, to preclude the defendant from introducing evidence in support of his claims or defenses because the plaintiff wife failed to prove that he wilfully failed to disclose relevant information (see CPLR 3126). Crane, J.P, Goldstein, Fisher and Lifson, JJ., concur.

In a special proceeding under section 47-e of article 3-A of the Personal Property Law, to cancel a wage assignment on the ground that the assignee had failed to deliver to the assignor a copy of the assignment and of the accompanying papers as required by section 46-e of said article 3-A, the assignor-petitioner appeals from an order of the Supreme Court, Kings County, dated June 16, 1960, denying his petition to cancel the assignment. Order reversed, without costs, and proceeding remitted to the Special Term for further action consistent herewith. The record presents a sharp issue of fact as to whether the assignee complied with the statute (Personal Property Law, § 46-e) by making the requisite delivery to the assignor of a copy of all the papers incident to the assignment. The issue cannot be properly resolved *522on the basis of the conflicting affidavits. Under the circumstances, the issue should be determined only after a plenary hearing at which the respective parties have the opportunity to subject the witnesses to cross-examination. The proceeding, therefore, should be remitted to the Special Term for the purpose of holding such a hearing and making its determination on the basis of all the proof which may be adduced. Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.

In an action to recover damages for personal injuries, Parker & Waichman, LLR and Michael S. Lamonsoff, the plaintiffs former attorneys, appeal from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated March 2, 2006, which, upon the settlement of the action and upon the application by Jonah Grossman, one of the plaintiffs current attorneys, for a division of attorneys’ fees, determined, after a hearing, that they had been discharged for cause and, therefore, were not entitled to any part of the attorneys’ fees. Ordered that the order is affirmed, with costs. Following the settlement of the plaintiffs personal injury action against the defendant City of New York, a fee dispute arose between the plaintiff’s former and current attorneys, and conflicting claims were made as to whether the former attorneys had been discharged with or without cause. The Supreme Court *710properly held a hearing to resolve the issue (see Byrne v Leblond, 25 AD3d 640, 642 [2006]), and determined that the former attorneys had been discharged for cause. Based on the evidence presented at that hearing, we discern no basis to disturb the Supreme Court’s determination (see Matter of Stevens, 252 AD2d 654, 655-656 [1998]). In light of our determination, we do not address the appellants’ remaining contention. Crane, J.E, Goldstein, Fisher and Lifson, JJ, concur.

In a proceeding to review and annul a determination of the Board of Standards and Appeals of the City of New York, which granted an application under subdivision (e) of section 7 of the Zoning Resolution of the City of New York for a variance so as to permit the erection and operation of a gasoline service station in a Residence Use District for a period of 15 years, subject to express safeguards and conditions imposed by the board, the petitioners appeal from an order of the Supreme Court, Queens County, dated November 30, 1959, which grants the motion of the respondent board to dismiss the petition and to affirm the board’s determination, and which denies the petitioners’ cross motion for the relief demanded in the petition. Petitioners contend that the board exceeded the powers granted to it by subdivision (e) of section 7 of the Zoning Resolution; and that its determination is void because of procedural defects, particularly in that there was a vacancy in the five-member board at the time some of the proceedings upon the variance application were held (citing: New York City Charter, § 661; General Construction Law, § 41). Order affirmed, with costs. The decision in Matter of Gray v. Maislen (17 Misc 2d 161) is not applicable to this case, since here the board’s determination was finally made upon the votes of all its five members. Nolan, P. J., Beldock, Ughetta, Christ and Brennan, J.J., concur.

In an action, inter alia, to recover damages for breach of contract and architectural malpractice, the defendant Nancy Copley appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated July 19, 2005, as denied that branch of the motion of her outgoing attorney which was made on her behalf, in effect, for an adjournment of the trial, (2) a judgment of the same court entered October 12, 2005, which, upon a jury verdict, is in favor of the plaintiff and against her in the principal sum of $330,371.50, and (3) an order of the same court dated November 28, 2005, which denied her motion pursuant to CPLR 4404 (a) to set aside the verdict and for judgment as a matter of law, or to set aside the verdict as against the weight of the evidence and for a new trial. Ordered that the appeal from the order dated July 19, 2005 is dismissed; and it is further, Ordered that the judgment is reversed, on the law and in the exercise of discretion, that branch of the motion of the appellant’s outgoing attorney which was made on her behalf, in effect, for an adjournment of the trial is granted, and the matter is remitted to the Supreme Court, Dutchess County, for a new trial on the issues of liability and damages alleged in the complaint as against the appellant and on the appellant’s counterclaims and cross claims; and it is further, Ordered that the appeal from so much of the order dated November 28, 2005, as denied that branch of the appellant’s *711motion which was for a new trial is dismissed as academic, in light of the determination of the appeal from the judgment; and it is further, Ordered that the order dated November 28, 2005 is affirmed insofar as reviewed; and it is further, Ordered that one bill of costs is awarded to the appellant. The appeal from the order dated July 19, 2005 must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order dated July 19, 2005 are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]). Approximately two weeks before the commencement of trial, the Supreme Court, in an order dated July 19, 2005, granted that branch of the motion of the attorney for the defendant Nancy Copley (hereinafter Copley) which was for leave to withdraw as counsel, and denied that branch of the attorney’s motion which was for “a reasonable stay of proceedings in order [for Copley] to obtain alternate counsel,”—in effect, for an adjournment of the trial, which was scheduled to commence August 5, 2005. Copley, unable to retain counsel, failed to appear at jury selection on that date, and the jury was selected entirely by the plaintiffs counsel and the counsel for the other defendants. Copley appeared on the first day of trial, August 8, 2005, and asserted that she never received a copy of the order, inter alia, denying that branch of her attorney’s motion which was, in effect, for an adjournment of the trial. Copley made a second request for an adjournment, explaining that the attorneys she contacted would not represent her unless she obtained an adjournment. The Supreme Court denied her request and proceeded to trial. Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying Copley’s request for an adjournment so that she could retain counsel (see Cabral v Cabral, 35 AD3d 779 [2006]; McGhee v McGhee, 263 AD2d 530 [1999]; Jadar Dev. Corp. v Greenspan, 230 AD2d 828, 829 [1996]; Cuevas v Cuevas, 110 AD2d 873, 877 [1985]; McCoy v Woodcraft Homes, 42 AD2d 846, 846-847 [1973]). Accordingly, the appellant is entitled to a new trial. This determination renders academic the appeal from so much of the order dated November 28, 2005 as denied that branch of the appellant’s motion which was for a new trial. The appellant’s argument that the verdict against her was unsupported by legally sufficient evidence is unpreserved for *712appellate review (see Miller v Miller, 68 NY2d 871, 873 [1986]; Dileo v Barreca 16 AD3d 366, 368 [2005]; Ford v Southside Hosp., 12 AD3d 561, 562 [2004]). Crane, J.E, Florio, Fisher and Dickerson, JJ., concur.

In an action to recover damages for personal injuries, the *713plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Bellantoni, J.), entered October 3, 2005, as denied his motion for summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action, and the defendants cross-appeal from so much of the same order as denied their cross motion for summary judgment dismissing the complaint. Ordered that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendants’ cross motion which were for summary judgment dismissing the Labor Law § 241 (6) and § 200 causes of action, and substituting therefor provisions granting those branches of the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the defendants. The plaintiff, an iron worker, fell approximately 16 feet from the top of a concrete wall. At the time of the accident, the plaintiff was wearing a safety harness and lanyard which were provided by his employer. However, he had not “tied off” the lanyard. The plaintiff claims he did not tie off the lanyard because there were no safety cables or safety lines nearby where he could attach the safety equipment, while the defendants argue that the plaintiff should have asked the safety crew to install a safety cable. The plaintiff commenced this action against the defendants based on, inter alia, Labor Law §§ 240, 241 (6), and § 200. The plaintiff moved for summary judgment on the issue of liability on the cause of action based on Labor Law § 240 (1). The defendants then cross-moved for summary judgment dismissing the complaint. The Supreme Court found that there were issues of fact which precluded granting summary judgment to either party. To establish liability for violation of Labor Law § 200, a plaintiff must establish that the party to be charged exercised some supervisory control over the operation (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). “General supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability . . . Further, the authority to review safety at the site is insufficient if there is no evidence that the defendant actually controlled the manner in which the work was performed” (Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 683 [2005] [internal quotation marks omitted]). Here, the defendants met their prima facie burden of demonstrating that they did not exert any control over the work site. In opposition, the plaintiff failed to raise a triable issue of fact. *714Under such circumstances, the plaintiffs cause of action under Labor Law § 200 should have been dismissed. Further, the Supreme Court erred in denying that branch of the defendants’ motion which was to dismiss the cause of action based on Labor Law § 241 (6), which alleged violations of 12 NYCRR 23-1.7 (b) and 23-1.16. Section 23-1.7 (b) (1) is inapplicable because even though there was a height differential, there was no hole or hazardous opening where the plaintiff was walking, into which he could have fallen (see Sopha v Combustion Eng’g, 261 AD2d 911 [1999]; Bennion v Goodyear Tire & Rubber Co., 229 AD2d 1003 [1996]). Moreover, section 23-1.16 is inapplicable because there was no evidence that the plaintiff was required to wear a safety belt. Therefore, that branch of the cross motion which was for summary judgment dismissing the Labor Law § 241 (6) cause of action should have been granted. With respect to the plaintiffs Labor Law § 240 (1) cause of action, we agree with the Supreme Court that triable issues of fact exist. Labor Law § 240 (1) imposes liability if it is determined that the owner or contractor failed to provide the safety devices required for proper worker protection in violation of the statute, and the violation proximately caused the accident (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 [2003]; Felker v Corning Inc., 90 NY2d 219 [1997]). Questions of fact exist as to whether or not such safety devices were available and/or adequate and, if so, whether the plaintiff disregarded the safety devices made available to him. Therefore, the Supreme Court properly denied the plaintiffs motion for summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action and properly denied that branch of the defendants’ cross motion which was for summary judgment dismissing that cause of action. The defendants’ remaining contentions are without merit. Schmidt, J.E, Santucci, Lifson and Covello, JJ., concur.

Appeal by defendant from a judgment of the County Court, Queens County, rendered May 19, 1959, after a jury trial, convicting him of burglary in the third degree and petit larceny and sentencing him to serve an indefinite term. Defendant is presently at liberty, on bail, by virtue of a certificate of reasonable doubt issued April 25, 1960. Judgment reversed on the law and the facts, and new trial granted. In instructing the jurors as to the right and duty of each individual member of the jury to reach his own determination on the evidence, the Trial Justice made an unfortunate choice of language which could have given the jurors the erroneous understanding that defendant’s innocence must appear beyond a reasonable doubt. Notwithstanding that here such instruction may not be reviewed as an error of law (cf. People v. Cohen, 5 N Y 2d 282, 290), we are of the opinion that under all the circumstances justice requires a new trial, particularly since the People’s case is dependent upon proof of identification by a single witness. (Code Crim. Pro., § 527.) Ughetta, Kleinfeld, Christ and Pette, JJ., concur; Beldock, Acting P. J., dissents and votes to affirm, with the following memorandum: In my opinion, the identification of the defendant and his proffered alibi present pure questions of fact. As to the erroneous charge, not only did defendant fail to take exception to it, but he affirmatively acquiesced in it. Under all the circumstances such error did not affect any substantial right of the defendant and must be disregarded (Code Crim. Pro., § 542).

In an action, inter alia, for a judgment declaring that the partnership between the plaintiff and the defendant has been dissolved, and for an accounting, the defendant appeals from stated portions of a judgment of the Supreme Court, Queens County (Beldock, J.H.O.), entered October 13, 2005, which, after an inquest on the issue of damages, declared that the partnership was dissolved as of September 6, 1995, and is in favor of the plaintiff and against him in the principal sum of $1,393,239. Ordered that the judgment is affirmed, with costs. The trial court’s determinations as to the date of dissolution of the parties’ partnership, the lawsuits which belonged to the partnership, and the amount of the parties’ share of partnership fees are supported by the record, and by its evaluation of the credibility of the parties at the inquest following the striking of the defendant’s answer by this Court (see Frankel v Hirsch, 2 AD3d 399 [2003]; Partnership Law §§ 60, 62 [1] [b]; Briscoe v White, 34 AD3d 712, 713 [2006]; Morris v Crawford, 304 AD2d 1018, 1020 [2003]; Grant v Heit, 242 AD2d 247, 248 [1997]). Accordingly, we find no basis to disturb them. The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Crane, J.P., Goldstein, Fisher and Lifson, JJ., concur.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated March 28, 2006, which denied their motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The defendants failed to submit evidence sufficient to establish their prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 *715[1985]). The parties gave conflicting deposition testimony as to how the accident occurred. Viewing the evidence in the light most favorable to the plaintiff, as we must (see Makaj v Metropolitan Transp. Auth., 18 AD3d 625, 626 [2005]), we find that a triable issue of fact exists as to whether the defendant driver cut in front of the plaintiff without signaling and contributed to this rear-end collision (see Briceno v Milbry, 16 AD3d 448, 448-449 [2005]; Mohan v Puthumana, 302 AD2d 437 [2003]; Rozengauz v Lok Wing Ha, 280 AD2d 534, 535 [2001]; Green v Hong Lee Trading, 263 AD2d 445 [1999]). Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. Crane, J.E, Florio, Fisher and Dickerson, JJ., concur.

In an action pursuant to Real Property Actions and Proceedings Law article 15 to quiet title to real property, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Schack, J.), dated March 21, 2005, which granted the plaintiffs motion for reargument of its motion for summary judgment on the complaint and the defendant’s cross motion for summary judgment dismissing the complaint, which were determined by order of the same court (Barasch, J.), dated June 13, 2003, and upon reargument, vacated the order dated June 13, 2003, in effect, denied the defendant’s cross motion for summary judgment dismissing the complaint and granted the plaintiffs motion for summary judgment on the complaint, and in effect, determined that, upon the issuance of a referee’s deed in an underlying mortgage foreclosure action in the Supreme Court, Kings County entitled Marine Midland Mortgage Corp. v Mittleman, index No. 10435/93, the defendant is barred from claiming any right, title, or interest in the subject premises. Ordered that the order and judgment is affirmed, with costs. The Supreme Court properly determined that the present action was timely commenced (see CPLR 213 [1]; Sorrentino v Mierzwa, 25 NY2d 59, 61 [1969]). Moreover, the Supreme Court properly, in effect, determined that, upon the issuance of a referee’s deed in an underlying mortgage foreclosure action in the Supreme Court, Kings County entitled Marine Midland Mortgage Corp. v Mittleman, Index No. 10435/93, the defendant is barred from claiming any right, title, or interest in the subject premises (see Novastar Mtge., Inc. v Mendoza, 26 AD3d 479, 480 [2006]; Matter of Jenkins v Stephenson, 293 AD2d 612, 614 [2002]; Green Point Sav. Bank v St. Hilaire, 267 AD2d 203 [1999]). *716The defendant’s remaining contentions are without merit. Spolzino, J.E, Ritter, Covello and Balkin, JJ., concur.

In an action to recover the agreed price and reasonable value of goods sold and delivered, defendant appeals (1) from an order of the Supreme Court, Westchester County, dated April 29, 1959, granting plaintiff’s motion for summary judgment striking out the amended answer; and (2) from the judgment of said court dated April 30, 1959, entered thereon. Defendant installed at the Truax Air Force Base, in Wisconsin, a number of transformers, some manufactured by plaintiff and some manufactured by others. The general contractor required defendant to replace all the transformers. Plaintiff agreed to replace without charge the transformers it had manufactured, but it would assume no responsibility for the replacement of transformers installed by defendant which plaintiff had not manufactured. After some negotiations, defendant’s attorney (who was also defendant’s secretary) wrote to plaintiff on *524March 31, 1958, confirming the understanding between the parties that: (a) plaintiff would replace all the transformers at the site, whether or not manufactured by plaintiff; (b) defendant would pay plaintiff at a certain rate for 48 transformers at the site not manufactured by plaintiff; and (e) if it should develop that there are more or less transformers than the 48 mentioned, the cost to defendant would be more or less as the number increases or decreases. It turned out that there were 306 transformers replaced by plaintiff, which were not of its manufacture. This action is to recover the replacement and labor costs for the 306 transformers. Defendant claims it agreed to pay for only 48 transformers, and that the statement in the letter to the effect that it would pay for “ more or less ” transformers was an .inadvertence. On the return day of plaintiff’s motion for summary judgment, plaintiff called the writer of the March 31, 1958 letter as a witness. At' the conclusion of his testimony, Special Term granted plaintiff’s motion for summary judgment. Order and judgment entered thereon affirmed, with $10 costs and disbursements. The letter of March 31, 1958 is clear and unambiguous. By its terms defendant agreed to pay the stipulated price for the actual number of transformers replaced, whether more or less than 48. Under all the circumstances we see no error in the talcing of the testimony on the hearing of the motion, in view of the fact that the record discloses there was no objection at the time to the procedure. Parties to an action may make their own rules of procedure insofar as 'the hearing of a motion is concerned. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.