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In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Orange County (McGuirk, J.), dated June 21, 2005, which granted the motion of the defendant Martin-Brower Co. for summary judgment dismissing the complaint insofar as asserted against it, (2) a judgment of the same court entered July 29, 2005, upon the order, and (3) an amended judgment of the same court dated October 5, 2005, which, upon the order, dismissed the complaint insofar as asserted against the defendant Martin-Brower Co. Ordered that the appeals from the order and the judgment are dismissed; and it is further, Ordered that the amended judgment is affirmed; and it is further, Ordered that one bill of costs is awarded to the defendant Martin-Brower Co. The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the amended judgment (see CPLR 5501 [a] [1]). The appeal from the judgment must be dismissed as the judgment was superseded by the amended judgment. After the defendant Martin-Brower Co. (hereinafter the defendant) established its prima facie entitlement to summary judgment, the burden shifted to the plaintiff to produce evidentiary proof in admissible form sufficient to raise a triable issue of fact to defeat the defendant’s motion (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). However, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., supra). Consequently, the Supreme Court properly granted the defendant’s motion for summary judgment and dismissed the complaint insofar as asserted against the defendant. Miller, J.E, Spolzino, Krausman and Dillon, JJ., concur.

In an action to recover damages for personal injuries, the plaintiffs appeal from an order dated February 10, 1960, granting defendant’s motion to dismiss the complaint, pursuant to section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice, for plaintiffs’ failure diligently to prosecute this action. Issue was joined about 11 and one-half months prior to the making .of the motion. In opposition to the motion, plaintiffs submitted only the affidavit of their attorney. Plaintiffs themselves failed to submit affidavits to explain their delay in prosecuting the action. Order affirmed, with $10 costs and disbursements, with leave to plaintiffs, if so advised, to move at Special Term to vacate the said order on proper affidavits by plaintiffs showing the merits of the action. While ordinarily the discretion of the learned Justice at ‘Special Term on a motion of this character would not be disturbed, it is our opinion that the combination of circumstances here, namely: (a) the illness of the plaintiffs’ attorney (cf. Parker v. Stiriz, 7 A D 2d 647; Sutera v. Inwood Motors, 7 A D 2d 753) ; (b) his inability during the period of his illness, to contact the female plaintiff for submission to examination before *525trial as required by the Statement of Readiness Rule; and (e) the lack of resultant prejudice to the defendant (cf. Brown v. City of New York, 1 A D 2d 905), warrant a conditional denial of the defendant’s motion to dismiss (see Zeiger v. Kew Towers, 8 A D 2d 827), provided that the subsequent motion be supported by a sufficient showing of merits by plaintiffs personally. Nolan, P. J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.

In an action to recover damages for personal injuries, etc., the defendant D & M Mason Contractor appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), dated June 15, 2005, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Ordered that the order is modified, on the law, by deleting the provision thereof denying those branches of the appellant’s motion which were to dismiss the causes of action based upon Labor Law §§ 200, 240 (1), and § 241 (6) insofar as asserted against it in the complaint, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. In 1999 the defendant Massapequa Water District (hereinafter Massapequa) hired the defendant S & P Construction *718Management, Inc. (hereinafter S & P), as a general contractor for construction work to be performed at Massapequa’s Brooklyn Avenue Storage Garage in Nassau County. Thereafter 5 & P subcontracted with the defendant D & M Mason Contractor (hereinafter D & M) to perform bricklaying and mortar work at the site. D & M erected the building’s four exterior walls, which included the installation of hurricane clips on top of those walls. S & P also subcontracted with the third-party defendant Kyvos Construction Corp. (hereinafter Kyvos) to perform work at the site, including the installation of roof trusses. These are triangular shapes which “sit upon” the side exterior walls and go from these walls to the center of the building to form the frame for the roof. On May 17, 1999 at approximately 2:00 p.m. the plaintiff Nikiforos Kelarakos (hereinafter Kelarakos), an employee of Kyvos, was in the process of installing wooden supports to brace the trusses when several trusses collapsed and fell on him, causing him to sustain injury. The plaintiffs commenced an action in which they alleged, inter alia, that D & M was negligent and that it violated the Labor Law. D & M moved for summary judgment dismissing the complaint, all cross claims and, in effect, all third-party causes of action insofar as asserted against it. D 6 M argued that it had completed its work and left the construction site before the injured plaintiff had even begun to work on installing the trusses, and there was no evidence that its work had been done improperly or that it contributed to the happening of the accident. In opposition, the plaintiffs submitted evidence, including an expert’s affidavit, which suggested that D & M improperly installed the hurricane clips and that it left uneven mortar mounds on the tops of the walls—factors which could have caused the trusses to become unstable, thereby causing the accident. “Labor Law §§ 200, 240, and 241 liability cannot be assessed against a subcontractor who did not control the work that caused the plaintiffs injury” (Zervos v City of New York, 8 AD3d 477, 481 [2004]; see Russin v Louis N. Picciano & Son, 54 NY2d 311 [1981]; Lopes v Interstate Concrete, 293 AD2d 579 [2002]; Ryder v Mount Loretto Nursing Home, 290 AD2d 892 [2002]). Here, it is undisputed that D & M neither controlled nor supervised the injured plaintiff’s work since D & M had completed its work and had left the construction site before the injured plaintiff even began to work on installing the trusses. Thus D & M was entitled to summary judgment dismissing of the causes of action asserted against it which were predicated upon alleged violations of Labor Law §§ 200, 240 (1), and § 241 (6). *719However, the plaintiffs did. raise questions of fact as to whether D & M negligently performed its work. Specifically, the plaintiffs raised triable issues regarding whether D & M improperly installed the hurricane clips and/or left uneven mortar mounds on the tops of the walls, and whether such factors could have caused the trusses to become unstable, thereby causing or contributing to the accident which injured Kelarakos. Accordingly, the Supreme Court properly denied that branch of D & M’s motion which was for summary judgment dismissing the plaintiffs’ cause of action alleging common-law negligence (see Bell v Bengomo Realty, Inc., 36 AD3d 479 [2007]; see also Mendez v Union Theol. Seminary in City of N.Y., 17 AD3d 271 [2005]; Ryder v Mount Loretto Nursing Home, supra). Schmidt, J.E, Santucci, Lifson and Covello, JJ., concur.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated February 8, 2006, which granted the defendant’s motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. Schools have a duty to provide supervision to ensure the safety of students in their charge, and they will be held liable for the foreseeable injuries proximately caused by the absence of adequate supervision (see Mirand v City of New York, 84 NY2d 44, 49 [1994]; Eberwein v Newburgh Enlarged City School Dist., 31 AD3d 492 [2006]; Oldham v Eastport Union Free School Dist., 26 AD3d 480 [2006]). However, “[w]here an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school] is warranted” (Convey v City of Rye School Dist., 271 AD2d 154, 160 [2000]; see Eberwein v Newburgh Enlarged City School Dist., supra; Hernandez v Board of Educ. of City of N.Y., 302 AD2d 493 [2003]; Janukajtis v Fallon, 284 AD2d 428 [2001]). Here, the defendant Quogue Union Free School District established its entitlement to judgment as a matter of law by submitting evidence that the incident which allegedly caused *720the infant plaintiff to sustain psychological trauma occurred in so short a period of time that its alleged failure to provide adequate supervision was not a proximate cause of his injuries. In opposition, the plaintiffs failed to raise an issue of fact (see Eberwein v Newburgh Enlarged City School Dist, supra; Convey v City of Rye School Dist., supra; Hernandez v Board of Educ. of City of N.Y., supra; Janukajtis v Fallon, supra; Totan v Board of Educ. of City of N.Y., 133 AD2d 366 [1987]). Accordingly, the Supreme Court properly granted the School District’s motion for summary judgment dismissing the complaint. Mastro, J.E, Krausman, Florio and Balkin, JJ., concur.

In a matrimonial action in which the parties were divorced by judgment dated May 9, 1994, the defendant former husband appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Donovan, J.), dated October 20, 2005, as granted the plaintiff former wife’s motion for counsel fees, (2) from an order of the same court dated January 19, 2006, (3) from an order of the same court dated January 23, 2006, and (4) from an order of the same court dated March 28, 2006, which, after a hearing, awarded the plaintiff former wife counsel fees in the sum of $60,244.33. Ordered that the appeal from the order dated January 19, 2006 is dismissed, without costs or disbursements, as the defendant is not aggrieved by that order (see CELR 5511); and it is further, Ordered that the appeal from the order dated January 23, 2006 is dismissed as abandoned, without costs or disbursements; and it is further, Ordered that the orders dated October 20, 2005 and March 28, 2006, respectively, are reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and the plaintiffs motion for counsel fees is denied. On a prior appeal, this Court determined that the plaintiff failed to meet her burden of proving the defendant’s alleged civil contempt of the judgment of divorce by clear and convincing evidence (see Lutz v Goldstone, 31 AD3d 398 [2006]). Since there was no finding that the defendant’s failure to comply with the provisions of the judgment of divorce was willful, the plaintiff was not entitled to counsel fees under Domestic Relations Law § 237 (c) (see Almeda v Hopper, 8 AD3d 216 [2004]; Green v Green, 288 AD2d 436 [2001]). *721The issue of whether the plaintiff was entitled to counsel fees under Domestic Relations Law § 237 (a), although “entrusted to the sound discretion of the trial court ... is nonetheless controlled by the equities of the case and the financial circumstances of the parties” (Popelaski v Popelaski, 22 AD3d 735, 738 [2005]; see Domestic Relations Law § 237 [a]). Here, the Supreme Court’s determination to grant the plaintiffs motion for counsel fees was an improvident exercise of discretion, given the equities and the circumstances (see Block v Block, 296 AD2d 343, 344 [2002]; cf. Markov v Markov, 304 AD2d 879, 880 [2003]). We note that the Supreme Court also erred by including in its award counsel fees pertaining to the prior Family Court appeal in the sum of $10,875 (see Abrusci v Abrusci, 79 AD2d 980 [1981]). In light of our determination, we do not reach the defendant’s remaining contentions. Miller, J.E, Rivera, Goldstein and McCarthy, JJ., concur.

In an action to recover damages for personal injuries, the defendants City of New York and Anthony Pagnotta appeal from a judgment of the Supreme Court, Kings County (Vaughan, J.), dated July 13, 2005, which, upon a jury verdict and upon the denial of their motions pursuant to CPLR 4401 for judgment as a matter of law at the close of evidence and pursuant to CPLR 4404 to set aside the verdict as legally insufficient or as against the weight of the evidence, is in favor of the plaintiff Eva Lynch and against them in the principal sum of $600,000 ($100,000 for past pain and suffering and $500,000 for future pain and suffering), in favor of the plaintiff Carolyn Corley and against them in the principal sum of $150,000, and in favor of the plaintiff Dalrymple Prince and against them in the principal sum of $350,000. Ordered that the judgment is modified, on the facts and as an exercise of discretion, by deleting the provision thereof awarding the plaintiff Eva Lynch damages for future pain and suffer*722ing, and a new trial is granted on the issue of damages for the future pain and suffering of the plaintiff Eva Lynch unless, within thirty (30) days after service upon her of a copy of this decision and order, the plaintiff Eva Lynch serves and files in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reducing the verdict as to damages for her future pain and suffering from the sum of $500,000 to the sum of $150,000 and to the entry of an appropriate amended judgment in her favor; in the event that the plaintiff Eva Lynch so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements. The plaintiffs were passengers on a bus owned by the defendant New York City Transit Authority (hereinafter the Transit Authority) and operated by the defendant Carmelita Campbell when the bus was struck by a police van owned by the defendant City of New York and operated by the defendant Anthony Pagnotta, a New York City Police Officer, at the intersection of Gates and Bedford Avenues in Brooklyn. At the close of the evidence, the appellants moved for judgment as a matter of law pursuant to CPLR 4401. The motion was denied. Upon the completion of the trial, the jury found that Pagnotta had acted in “reckless disregard” for the safety of others and accordingly determined, in effect, that the appellants were 100% at fault in the happening of the accident. The jury further found that the plaintiff Eva Lynch sustained a significant limitation of use of a body function or system and a permanent consequential limitation of use of a body organ or member, that the plaintiff Carolyn Corley sustained a permanent consequential limitation of use of a body organ or member, and that the plaintiff Dalrymple Prince sustained both a significant limitation of use of a body function or system and a permanent consequential limitation of use of a body organ or member. The appellants thereafter moved pursuant to CPLR 4404 to set aside the verdict as legally insufficient on the ground that the plaintiffs and the Transit Authority failed to establish a prima facie case of recklessness and that each plaintiff failed to establish that he or she had sustained a serious injury as a matter of law, or, to set aside the verdict as against the weight of the evidence. The trial court properly denied the appellants’ motion pursuant to CPLR 4401 for judgment as a matter of law at the close of evidence, since, as the record establishes, there was a rational process by which the jury could find for the plaintiffs (see Bergdoll v Perez, 282 AD2d 419 [2001]; McCloud v Marcantonio, *723106 AD2d 493 [1984]). The appellants may not challenge the trial court’s determination of their motion pursuant to CPLR 4401 by asking this Court to weigh the evidence (see Bergdoll v Perez, 282 AD2d 419 [2001]; Santiago v Steinway Trucking, 97 AD2d 753 [1983]). Contrary to the appellants’ contention, the evidence was legally sufficient to support the jury’s determination that each of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Manzano v O'Neil, 98 NY2d 345, 353 [2002]). Pagnotta acknowledged at trial that he had increased his speed as he approached the subject intersection and that, although his view was partially obstructed, he proceeded into the subject intersection without stopping or activating his siren. In addition, there was a disputed issue of fact as to whether Pagnotta had activated the van’s turret lights. Under these circumstances, the evidence was legally sufficient to support the jury verdict that Pagnotta acted in reckless disregard for the safety of others. Moreover, the verdict was not against the weight of the evidence (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Badalamenti v City of New York, 30 AD3d 452 [2006]). The damages awarded Lynch for future pain and suffering are excessive to the extent indicated, as they deviate materially from what would be reasonable compensation (see CPLR 5501 [c]; Benefield v Halmar Corp., 25 AD3d 633 [2006]; Vasquez v Skyline Constr. & Restoration Corp., 8 AD3d 473 [2004]; Lino v City of New York, 270 AD2d 315 [2000]). Additionally, the verdict in favor of the plaintiffs was not against the weight of the evidence. It cannot be said that the evidence so preponderated in favor of appellants that the verdict could not have been reached on any fair interpretation of the evidence (see Lolik v Big V Supermarkets, supra; Torres v Esaian, 5 AD3d 670, 671 [2004]; CPLR 4404 [a]). Santucci, J.P, Goldstein, Garni and McCarthy, JJ., concur.

In a proceeding pursuant to article 78 of the Civil Practice Act to review and annul a determination of the Board of Standards and Appeals of the City of New York, granting to the intervenors a variance of the city’s Zoning Resolution, the petitioners appeal from an order of the Supreme Court, Kings County, dated July 11, 1960, which denies their motion to annul the determination, and which grants the cross motion of the board to dismiss the petition. The board’s cross motion, returnable on May 19, 1960, was an application for alternative relief: (1) either to dismiss the petition pursuant to section 1293 of the Civil Practice Act, on the ground that the petition on its face was untimely because it had not been presented within the time specified by section 668e-1.0 of the Administrative Code of the City of New York; or (2) to extend the board’s time to answer for 90 days after service of a copy of the order denying its motion to dismiss. Order reversed, without costs, the board’s cross motion to dismiss the petition denied, and the board’s cross motion to extend its time to serve its answer to the petition granted by extending its time for a period of 90 days after service of a copy of the order to be entered hereon. Subdivision e of section 668 of the New York City Charter provides that a determination by the board “'may be reviewed by certiorari as provided by law.” This section is supplemented by section 668e-1.0 of the Administrative Code of the City of New York, which provides that: “Any person * * * aggrieved * * * may present to the supreme court a petition duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition must be presented to a justice of the supreme court or at a special term of the supreme court within thirty days after the filing of the decision in the office of the board, or its publication in the bulletin.” The board’s determination was made on April 5, 1960; it was published in its bulletin on April 14, 1960; and it was filed in its office on April 15, 1960. This article 78 proceeding to review its determination was instituted by the service upon it on May 9, 1960, of a copy of the petition and notice of motion, returnable on May 19, 1960, at Special Term, Part I, Kings County Supreme Court. In accordance with the rules of the court, a note of issue to add the proceeding to the calendar of said Special Term for the date of May 19, 1960, was filed on May 9, 1960, in the office of the Clerk of said Special Term. At the time that the note of issue was filed, the petitioners’ attorney presented for filing to the Clerk of said Special Term the original petition and notice of motion, together with due proof of service; but he refused to accept them. On the following day, May 10, 1960, the petition and notice of motion, together with proof of service were filed in the office of the Clerk of the court. All of the petitioners’ acts afore-mentioned were performed within the 30-day period following the date of publication of the board’s decision in the bulletin. If it be assumed arguendo that the mere service of the petition and notice of motion within the 30-day period after the publication of the board’s determination was not a presentation of the petition at a Special Term of the Supreme Court within the fair sense of section 668e-1.0 of the Administrative Code of the City of New York (but. cf. Matter of Barns v. Osborne, 286 N. Y. 403; Civ. Prac. Act, §§ 113, 1286), nevertheless when, within the time limitation prescribed by that section, the petitioners performed all of the acts heretofore set forth in an attempt to invoke the jurisdiction of the Special Term *527in accordance with the statutory provisions and rules regulating the practice concerning motions and special proceedings, the petition must be deemed to have been presented at a Special Term o£ the Supreme Court in the fair sense of said section of the Administrative Code (Matter of Kohnberg v. Murdock, 4 A D 2d 750; Matter of Lake Mahopac Hgts. v. Zoning Bd. of Appeals, 278 App. Div. 779; see, e.g., Matter of Barns v. Osborne, supra; Matter of North Amer. Holding Corp. v. Murdock, 6 A D 2d 596, 598, affd. 6 N Y 2d 902). Nolan, P J., Beldock, Christ, Pette and Brennan, JJ., concur.

*724In an action for reformation of two deeds, the defendants Robert Brigandi and Joanne Brigandi appeal, as limited by their brief, from (1) so much of an order and judgment (one paper) of the Supreme Court, Richmond County (Minardo, J.), dated June 3, 2005, as granted that branch of the plaintiffs motion which was for summary judgment against them, determined that the subject deeds contained errors, and reformed the subject deeds, and (2) so much of an order of the same court dated February 16, 2006, as denied their motion to resettle the order and judgment except to the extent of directing the grant of an easement to them. Ordered that the order and judgment is reversed insofar as appealed from, on the law, that branch of the plaintiffs motion which was for summary judgment against the appellants is denied, upon searching the record, summary judgment is awarded to the appellants dismissing the complaint insofar as asserted against them, so much of the order as denied the appellants’ motion to resettle the order and judgment except to the extent of directing the grant of an easement to the appellants is vacated, and the appellants’ motion to resettle the order and judgment is denied as academic; and it is further, Ordered that the appeal from the order is dismissed as academic in light of the determination on the appeal from the order and judgment; and it is further, Ordered that one bill of costs is awarded to the appellants. The plaintiff subdivided and improved vacant land and sold adjacent developed properties to the defendants Frances Lopes and Ronald Lopes (hereinafter collectively the Lopes defendants) and to the appellants. The front steps to the Lopes defendants’ house, as constructed, straddled the property line, and the New York City Department of Buildings denied a final certificate of occupancy to the Lopes defendants because of the encroachment onto the appellants’ lot. The plaintiff commenced this action to reform both deeds so as to place the Lopes defendants’ steps entirely on the Lopes defendants’ lot. The Supreme Court granted that branch of the plaintiff’s motion which was for summary judgment against the appellants, adjudged that the subject deeds contained errors, and reformed the deeds in a *725manner that eliminated the encroachment by effectively shifting a portion of the common property line by several feet. The purpose of reformation is to restate the intended terms of an agreement when the writing that memorializes the agreement is at variance with the intent of both parties (see John John, LLC v Exit 63 Dev., LLC, 35 AD3d 540 [2006]; Beebe v La Pierre, 114 AD2d 668, 669 [1985]). Accordingly, mistaken inclusions or exclusions of certain land in a deed or contract of sale may be corrected so that the instrument will conform to the true agreement of the parties (see Beebe v La Pierre, supra at 669). Where, as here, the plaintiff seeks reformation based upon the ground of mistake, he or she must establish that the contract was executed under mutual mistake or a unilateral mistake induced by the defendant’s fraudulent misrepresentation (see John John, LLC v Exit 63 Dev., LLC, supra; Kadish Pharm. v Blue Cross & Blue Shield of Greater N.Y., 114 AD2d 439 [1985]). A party seeking reformation must show clearly that there has been a mistake (see Janowitz Bros. Venture v 25-30 120th St. Queens Corp., 75 AD2d 203, 215 [1980]). Additionally, the proponent of reformation must demonstrate, by clear and convincing evidence, not only that a mutual mistake or a unilateral mistake induced by fraud exists, but exactly what the parties agreed upon (see Chimart Assoc. v Paul, 66 NY2d 570, 574 [1986]; Miller v Seibt, 13 AD3d 496, 497 [2004]; Lacoparra v Bellino, 296 AD2d 480, 481 [2002]). Here, the plaintiff did not make such a showing. In support of its motion, the plaintiff submitted a site plan allegedly incorporated into the contract for sale of the appellants’ property and argued that the plan set forth the boundaries of the appellants’ lot which were intended by the parties to that contract. Even assuming that the site plan reflected property boundaries which varied from those established by the bargain and sale deed for the appellants’ property, the contract for sale also provided that the appellants would be required to accept the premises subject to an encroachment of, among other things, steps. Therefore, the plaintiff failed to establish that the appellants’ deed did not reflect the true agreement of the parties and the exact property boundaries agreed upon and, consequently, did not demonstrate its prima facie entitlement to reformation (see Chimart Assoc. v Paul, supra at 574; Beebe v La Pierre, supra at 669). Accordingly, summary judgment was improperly granted to the plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Although the appellants did not move for summary judgment *726dismissing the complaint insofar as asserted against them, under the circumstances, we exercise our authority to search the record and award the appellants summary judgment (see CPLR 3212 [b]; Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]; Triple M. Roofing Corp. v Farmingdale Union Free School Dist., 26 AD3d 323, 325 [2006]). Here, the appellants clearly and convincingly established that no mutual mistake occurred, and there is no claim of fraud (see Chimart Assoc. v Paul, supra at 574; Beebe v La Pierre, supra at 669). The plaintiffs submissions failed to raise a triable issue of fact regarding the intent of the parties (see Zuckerman v City of New York, 49 NY2d 557 [1980]). In light of the foregoing, the appellants’ remaining contentions have been rendered academic. Miller, J.R, Spolzino, Goldstein and McCarthy, JJ., concur.

In an action to recover damages for personal injuries, in which the defendant, Port Chester Iron Works, Inc., in its amended answer pleads, pursuant to section 264 of the Civil Practice Act, two cross complaints for relief over against its codefendant Long, said defendant and codefendant cross-appeal from an order of the Supreme Court, Rockland County, dated March 28, 1960, and entered in Dutchess County on May 2, 1960: (1) said defendant appeals from so much of said order as grants the motion of the codefendant Long to dismiss the second cross complaint on the ground that it fails to state facts sufficient to constitute a cause of action for relief over against him, codefendant Long; and (2) said codefendant appeals from so much of said order as denies his motion to dismiss the first cross complaint on the ground that it fails to set forth facts sufficient to constitute a cause of action for relief over against him. The first cross complaint is based on the theory of indemnification by contract. The second is based on the theory of indemnification under the common law, namely: that the accident which resulted in plaintiff’s injuries was caused by the sole active negligence of the codefendant Long and that the defendant corporation was guilty only of passive or secondary negligence. On the basis of each cross complaint said defendant corporation seeks judgment over against said codefendant in the event that plaintiff succeeds in recovering judgment against it, the defendant corporation. Order modified by striking out its first decretal paragraph dismissing the second cross complaint contained in the amended answer of the defendant corporation, Port Chester Iron Works, Inc., and by substituting therefor a paragraph denying the motion of the eodefendant Long to dismiss such cross complaint. As so modified, order affirmed, with $10 costs and disbursements to said corporate defendant. As a pleading, the first cross complaint is sufficient (cf. Brown v. Fuller Co., 3 A D 2d 830). The second cross complaint, read in the light of the allegations in the plaintiff’s complaint, is also sufficient (see, e.g., Brady v. Weiss & Sons, 6 A D 2d 241; Robinson v. Bingamton Constr. Co., 277 App. Div. 468). Nolan, P. J., Ughetta, Christ. Pette and Brennan, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, (1) from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated May 17, 2005, as granted that branch of the motion of the defendants Robert Kaszovitz and Elaine Cohen which was for summary judgment dismissing the complaint insofar as asserted against them, and (2) from so much of an order of the same court dated September 12, 2005, as, upon reargument, adhered to the original determination. Ordered that the appeal from the order dated May 17, 2005 is dismissed, as that order was superseded by the order dated September 12, 2005, made upon reargument; and it is further, Ordered that the order dated September 12, 2005 is reversed insofar as appealed from, on the law, upon reargument, so much of the order dated May 17, 2005 as granted that branch of the motion of the defendants Robert Kaszovitz and Elaine Cohen which was for summary judgment dismissing the complaint insofar as asserted against them is vacated, and that branch of the motion is denied; and it is further, Ordered that one bill of costs is awarded to the plaintiff. The respondents failed to satisfy their prima facie burden in support of their motion for summary judgment. Accordingly, it is unnecessary to consider whether the plaintiff’s opposition papers were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Crane, J.R, Florio, Fisher and Dickerson, JJ., concur.

*727In an action, inter alia, for a judgment declaring that the defendants are not entitled to compensation arising from a brokerage agreement, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J), dated February 16, 2006, as denied those branches of its motion which were for summary judgment, inter alia, on the second and fourth causes of action asserted against the defendant M. Slayton Real Estate, Inc. Ordered that the order is affirmed insofar as appealed from, with costs. “Real Property Law § 442-d bars an unlicensed person from recovering commissions if that person has performed services facilitating, inter alia, the sale of real property” (Kavian v Vernah Homes Co., 19 AD3d 649, 650 [2005]; see Galbreath-Ruffin Corp. v 40th & 3rd Corp., 19 NY2d 354, 362 [1967]). Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The plaintiffs submissions failed to demonstrate the absence of any material issues of fact as to whether the defendant M. Slayton Real Estate, Inc., was unlicensed at the time it rendered the services which formed the consideration for the claimed commission (see Galbreath-Ruffin Corp. v 40th & 3rd Corp., supra; Calhoun v Banner, 254 NY 325 [1930]; Bendell v De Dominicis, 251 NY 305 [1929]). Failure to make such a prima facie showing requires the denial of summary judgment, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). Accordingly, the Supreme Court properly denied those branches of the plaintiff’s motion which were for summary judgment, inter alia, on the second and fourth causes of action asserted against the defendant M. Slayton Real Estate, Inc. The plaintiff’s remaining contentions are without merit. Schmidt, J.P, Skelos, Lifson and Covello, 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, Queens County (Kitzes, J.), dated March 24, 2005, as granted that branch of the motion of the de*728fendant Eric D. Mauss which was for summary judgment dismissing the complaint insofar as asserted against him. Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Eric D. Mauss which was for summary judgment dismissing the complaint insofar as asserted against him is denied. In order to establish a prima facie entitlement to judgment as a matter of law, it was incumbent upon the defendant Eric D. Mauss (hereinafter the defendant) to come forward with evidentiary proof, in admissible form, demonstrating the absence of any triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Ilardi v Inte-Fac Corp., 290 AD2d 490 [2002]). The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Smith v City of New York, 288 AD2d 369 [2001]; Sipourene v County of Nassau, 266 AD2d 450 [1999]). The deposition transcripts of two nonparty witnesses, submitted by the defendant without an explanation as to why they were unsigned and unsworn, were not in admissible form and should not have been considered by the court (see CPLR 3116; Santos v Intown Assoc., 17 AD3d 564 [2005]; Lalli v Abe, 234 AD2d 346 [1996]). It is evident from the remaining evidence submitted by the defendant that questions of fact exist as to whether the defendant failed to see that which he should have seen through the proper use of his senses (see Rebay v Tormey, 2 AD3d 826 [2003]; Ferrara v Castro, 283 AD2d 392, 393 [2001]; Zambrano v Pilhwan Seok, 277 AD2d 312 [2000]; Smalley v McCarthy, 254 AD2d 478 [1998]), and whether he made a left turn when it was unsafe to do so (see Gabler v Marly Bldg. Supply Corp., 27 AD3d 519 [2006]). The defendant’s contention that the plaintiff may have been operating his motorcycle at an excessive rate of speed is speculative at best (see Szczotka v Adler, 291 AD2d 444 [2002]; Breslin v Rudden, 291 AD2d 471 [2002]). In light of the defendant’s failure to establish his prima facie entitlement to judgment as a matter of law, we need not consider any purported deficiency in the plaintiffs opposition papers (see Winegrad v New York Univ. Med. Ctr., supra; Smith v City of New York, supra; Sipourene v County of Nassau, supra). Mastro, J.P, Rivera, Dillon and Garni, JJ., concur.

Appeal by the People from an order of the Special Term, Supreme Court, Kings County, dated January 6, 1960, sustaining relator’s application for a writ of habeas corpus and discharging him from custody and from further imprisonment or restraint under a judgment of the Court of General Sessions, New York County, rendered October 30, 1939, convicting him of robbery in the third degree and sentencing him to an indeterminate term of not less than 10 nor more than 20 years in State prison. Order reversed on the law, application for writ of habeas corpus dismissed, and relator remanded to appropriate custody to serve the remainder of the maximum term of his original sentence. Findings of fact implicit in the opinion of the Special Term, affirmed. In our opinion,’ under the relevant statutes (Correction Law, art. 9), the granting of credit for good conduct and efficient and willing performance of duties assigned, totaling 3 years, 3 months and 14 days, effected only a reduction of the minimum term of the relator’s sentence, so as to accelerate the date upon which he could be considered for parole; and, hence, such credit could not be applied in reduction of his maximum term (People ex rel. Phillips v. Denno, 10 A D 2d 710; People ex rel. Hart v. Denno, N. Y. L. J., May 3, 1960, p. 13, col. 7; People ex rel. Clemente v. Warden, 10 A D 2d 57). Beldock, Acting P. J., Ughetta, Christ and Pette, JJ., concur. Settle order on notice.

In an action to recover damages for personal injuries, (1) the defendant Tri-Messine Construction Co. appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated June 6, 2005, which denied its motion for summary judgment dismissing the complaint, all cross claims, and the third-party complaint insofar as asserted against it, (2) the defendant Consolidated Edison Company of New York, Inc., appeals from an order of the same court, also dated June 6, 2005, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and (3) the defendant Safeway Construction Enterprises, Inc., appeals from an order of the same court, also dated June 6, 2005, which denied its motion for summary judgment dismissing the complaint, all cross claims, and the third-party complaint insofar as asserted against it. Ordered that the orders are reversed, on the law, with one bill of costs, and the motions of the defendants Tri-Messine Construction Co. and Safeway Construction Enterprises, Inc., for summary judgment dismissing the complaint, all cross claims, and the third-party complaint insofar as asserted against them and the motion of the defendant Consolidated Edison Company of New York, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it are granted. The plaintiff was injured when he lost control of his motorcycle while traveling down 21st Street in Queens. The plaintiff alleged, inter alia, that the accident was the result of a defective road condition created by the defendants Consolidated Edison Company of New York, Inc., Tri-Messine Construction Co., and Safeway Construction Enterprises, Inc. (hereinafter collectively the defendants). In support of their separate motions, each of the defendants *730made a prima facie showing of its entitlement to summary judgment by presenting sufficient evidence to show that it did not create the allegedly defective condition (see Cendales v City of New York, 25 AD3d 579 [2006]; Maloney v Consolidated Edison Co. of N.Y., 290 AD2d 540 [2002]; Verdes v Brooklyn Union Gas Co., 253 AD2d 552 [1998]; Curd v City of New York, 240 AD2d 460 [1997]). The plaintiff’s submissions in opposition to the defendants’ motions were based on speculation and surmise and were therefore insufficient to raise a triable issue of fact (see Regan v City of New York, 8 AD3d 462 [2004]; Portanova v Dynasty Meat Corp., 297 AD2d 792 [2002]; Delano v Consolidated Edison Co. of NY., 231 AD2d 671 [1996]). In light of our determination herein, we need not reach the parties’ remaining contentions. Motion by the plaintiff-respondent on appeals from three orders of the Supreme Court, Queens County, all dated June 6, 2005, inter alia, to strike material from the joint record on the ground that it is dehors the record. Cross motion by Tri-Messine Construction Co. to enlarge the record on appeal to include the material which the plaintiff-respondent claims is dehors the record. By decision and order on motion of this Court dated May 24, 2006, inter alia, that branch of the motion which was to strike material from the joint record, and the cross motion, were referred to the Justices hearing the appeals for determination upon the argument or submission of the appeals. Upon the papers filed in support of the motion and the cross motion, the papers filed in opposition or relation thereto, and upon the argument of the appeals, it is Ordered that the branch of the motion which was to strike material from the joint record is denied, and the cross motion to enlarge the record to include that material is granted. Mastro, J.E, Rivera, Dillon and Garni, JJ., concur.

In an action to recover payment due under the terms of a *731mortgage note agreement and certain guarantees, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Dunne, J.), dated December 23, 2005, as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint and denied, as academic, its cross motion for summary judgment dismissing the defendants’ affirmative defense of champerty pursuant to Judiciary Law § 489. Ordered that the order is affirmed insofar as appealed from, with costs. The plaintiff, an assignee of a mortgage note and guarantees from HSBC Bank USA, commenced this action against the defendants, as guarantors, to enforce the guarantees and to recover payment on the note. The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the real purchaser of the note was not the plaintiff, but the third-party defendant Bert Brodsky, who was also a co-guarantor of the note. All of the funds used by the plaintiff in acquiring the note came from Brodsky. As the note was paid in full by a co-guarantor, the only cause of action available was one by the co-guarantor Brodsky to recover for contribution against the defendants. Contrary to the plaintiff’s contention, it cannot recover pursuant to a cause of action for contribution as it is not a co-guarantor of the note (see Panish v Rudolph, 282 AD2d 233 [2001]). Only a co-guarantor who has paid more than his or her proportionate share of the common liability is entitled to contribution from the other co-guarantors (see Beltrone v General Schuyler & Co., 229 AD2d 857, 858 [1996]; Backman v Hibernia Holdings, 1998 WL 427675, *6, 1998 US Dist LEXIS 11571, *17 [SD NY, July 28, 1998]). In opposition, the plaintiff failed to raise an issue of fact by offering evidence that would demonstrate that it was the real purchaser of the note rather than a mere vehicle for Brodsky to purchase the note. Therefore, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint and denied, as academic, the plaintiff’s cross motion for summary judgment dismissing the defendants’ affirmative defense of champerty pursuant to Judiciary Law § 489 (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Crane, J.P., Goldstein, Fisher and Lifson, JJ., concur.

In Action No. 3, to recover damages for injuries to person and property, defendant Blum appeals from an order of the Supreme Court, Nassau County, dated April 7, 1960, granting the motion of the plaintiffs Barberis for judgment against said defendant by default and placing the action on the Trial Calendar for inquest. In the three actions, to recover damages for injuries to person and property, defendant Blum appeals from an order of the Supreme Court, Nassau County, dated April 18, 1960, denying his motion to open his default in Action No. 3; to strike said action off the inquest calendar; to extend his time to answer the complaint in said action; and to consolidate Action No. 3 and Action No. 2 with Action No. 1. These three actions arise out of the collision of two auto*530mobiles on July 11, 1959. An automobile owned by Andrew E. Barberis, Sr., and operated by Andrew E. Barberis, Jr., collided with an automobile owned and operated by William Blum. Action No. 1 was instituted in the Supreme Court, Nassau County, by plaintiff George F. Simon, a passenger in the Barberis’ ear, against the two Barberis and Blum. Action No. 2 was instituted in the Supreme Court, Kings County, by plaintiffs Barbara Ingber and David Ingber, passengers in the Blum car, against the two Barberis and Blum. Action No. 3 was instituted in the Supreme Court, Nassau County, by the two Barberis against Blum. In Actions Nos. 1 and 2, which are presently on the calendar, Blum appeared and answered, but he failed to appear in Action No. 3 in response to one summons served on August 11, 1959, and in response to another summons and a complaint served on January 14, 1960. The Barberis, the plaintiffs in Action No. 3, moved in the Supreme Court, Nassau County, for a default judgment and for an inquest in that action. On April 1, 1960, while such motion was still pending, Blum, the defendant in Action No. 3, moved in the same court for an order: (1) to open his default in appearing and answering the summons and complaint in Action No. 3, which had been served upon him on January 14, 1960; (2) to extend his time to answer in Action No. 3; (3) to strike Action No. 3 from the Inquest Calendar; and (4) to consolidate Actions Nos. 2 and 3 with Action No. 1. Said motion by defendant Blum was made on the ground that a copy of the summons and complaint served on January 14, 1960, were not in his possession or in his attorney’s possession. On April 7, 1960, the motion of the two Barberis, plaintiffs in Action No. 3, for a default judgment and an inquest, was granted. On April 18, 1960, the motion of defendant Blum to open his default and for other relief was denied. Order dated April 18, 1960, reversed, without costs, and motion of defendant Blum granted on condition that, within 10 days after the entry of the order hereon, he pay $100 costs to the plaintiffs in Action No. 3, and serve his answer to the complaint in said action; his time to answer being extended accordingly. In the event of defendant Blum’s failure to comply with these conditions, the order denying his motion is affirmed, with one bill of $10 costs and disbursements to each respondent who filed a brief. Thfe record shows inordinate neglect on the part of defendant Blum, which would ordinarily warrant an affirmance of the order denying his motion. It is our opinion, however, that the unusual circumstances here present and the fact that the three actions arise out of the same accident and that it is desirable to avoid a multiplicity of suits, require a reversal of the order upon the conditions stated. Appeal from order, dated April 7, 1960, dismissed, as academic. Nolan, P. J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.

*732In an action for partition of certain real property, the defendant appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated April 3, 2006, which denied his motion, inter alia, in effect, to vacate an auction sale of the subject property. Ordered that the order is affirmed, with costs. The Supreme Court properly denied the defendant’s motion, inter alia, in effect, to vacate an auction sale of the subject property. The plaintiff submitted an affidavit of mailing which raised a presumption that the notice of sale was properly mailed and received by the defendant (see Terlizzese v Robinson’s Custom Serv., Inc., 25 AD3d 547, 548 [2006]; Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998]). The defendant’s mere denial of receipt of the notice of sale was insufficient to rebut the presumption of proper mailing and receipt (see Terlizzese v Robinson’s Custom Serv., Inc., supra at 548; Matter of Rodriguez v Wing, supra at 336; cf. Matter of Holland v New York City, 271 AD2d 609, 610 [2000]). Further, the price at the auction sale, 58% of the value of the property as alleged by the defendant, was not so low as to shock the conscience of the court (see NYCTL 1999-1 Trust v NY Pride Holdings, Inc., 34 AD3d 774 [2006]; Dime Sav. Bank of N.Y. v Zapala, 255 AD2d 547, 548 [1998]; Provident Sav. Bank v Bordes, 244 AD2d 470 [1997]; Long Is. Sav. Bank of Centereach v Jean Valiquette, M.D., P.C., 183 AD2d 877 [1992]; Polish Natl. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d 400, 407 [1983]). The defendant’s remaining contention is raised for the first time on appeal, and thus, it is not properly before this Court (see New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 571 [2004]). Mastro, J.E, Krausman, Florio and Balkin, JJ., concur.

*733In 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 (Knipel, J.), dated September 19, 2005, as granted that branch of the motion of the defendants TPT Brooklyn Associates, LLC, and Great American Construction Corp., which was for summary judgment dismissing the complaint insofar as asserted against them. Ordered that the order is affirmed insofar as appealed from, with costs. The plaintiff commenced this action to recover damages, pursuant to Labor Law §§ 200, 240 (1), and § 241 (6), for injuries he allegedly sustained when a piece of ceiling collapsed and struck him while he was performing interior demolition work. The plaintiff subsequently withdrew his causes of action alleging a violation Labor Law § 240 (1). Thereafter, the owner of the property, the defendant TPT Brooklyn Associates, LLC, and the general contractor for the project, the defendant Great American Construction Corp. (hereinafter together the defendants), successfully moved for summary judgment dismissing the Labor Law §§ 200 and 241 (6) causes of action. We affirm. The Supreme Court properly granted summary judgment dismissing the Labor Law § 200 cause of action because the plaintiff failed to offer any evidence to rebut the defendants’ prima facie showing that they did not supervise or control the demolition work, or the safety measures employed during that work (see Dennis v City of New York, 304 AD2d 611, 612 [2003]). The Supreme Court also properly granted summary judgment dismissing the cause of action based upon an alleged failure to comply with Labor Law § 241 (6). In order to establish liability under Labor Law § 241 (6), a plaintiff must demonstrate that the defendant’s violation of a specific rule or regulation was a proximate cause of the accident (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]). However, insofar as this cause of action was predicated upon an alleged violation of 12 NYCRR 23-1.7 (a) (1), the defendants made a prima facie showing that this regulation was inapplicable because the area where the plaintiff was working was not one where workers were “normally exposed to falling objects” (Portillo v Roby Anne Dev., LLC, 32 AD3d 421, 422 [2006]; see Perillo v Lehigh Constr. Group, Inc., 17 AD3d 1136, 1138 [2005]; Amato v State of New York, 241 AD2d 400, 402 [1997]), and the plaintiff failed to raise *734a triable issue of fact in opposition. Additionally, the plaintiffs contention that the accident was proximately caused by the defendants’ alleged violation of 12 NYCRR 23-3.3 (c), which requires that there be “[continuing inspections] during hand demolition operations,” was based on mere speculation. Accordingly, the plaintiff failed to raise a triable issue of fact sufficient to defeat the defendants’ prima facie establishment of their entitlement to summary judgment dismissing that cause of action (see generally Schroeder v Kalenak Painting & Paperhanging, Inc., 27 AD3d 1097 [2006]). Rivera, J.E, Santucci, Angiolillo and Dickerson, JJ., concur.

Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board which denied her claim for benefits. The claimant had worked from 1943 through June, 1957 in New York City doing such office work as filing, switchboard, receptionist and bookkeeping. The claimant is married and shortly after she left her job in June, 1957 she moved with her family to West Haverstraw, New York, where they had bought a home. On August 5 she filed a claim for unemployment benefits. The claimant made applications to the places where she might find employment in Haverstraw, about five, but found no job. She refused to return to work in New York City. She would not look for a job in Nyack or Spring Valley as suggested to her because of transportation difficulties, i.e., she did not drive, did not care for car pools and the bus schedules were not to her liking. The claimant cannot type and would not consider other than general office work. It was determined that the claimant was not available for employment in view of the limitations she had imposed. She requested a hearing which was held and after which the Referee reversed the initial determination and found her eligible for benefits. On review the board reversed holding that the claimant was unavailable for employment based on her failure to make reasonable efforts to obtain employment. The claimant contends that the record does not support the finding that she was unavailable for work. The question *532of availability for employment is one of fact and it seems, that there is substantial evidence to support the board’s determination here. The claimant moved to an area in which the chances of finding work in her specific occupation were small and further she refused to look for a job outside of the immediate area into which she moved. Her refusal to look for a car pool or to work out bus transportation to nearby areas where work was available would seem to be such evidence as to permit the board to make a finding of unavailability. In Matter of Posselt (Lubin,) (3 A D 2d 881) the claimant was unable to continue to provide herself with transportation to work and benefits were denied and again in Matter of hanger (Gatherwood) (11 A D 2d 560) the claimant did not arrange for transportation to nearby communities and the denial of benefits was upheld. Decision unanimously affirmed, without costs.

In an action to recover damages for personal injuries, the *735plaintiff appeals from an order of the Supreme Court, Queens County (Dorsa, J.), entered June 30, 2006, which denied his motion, in effect, pursuant to CPLR 4404 (a) to set aside a jury verdict in favor of the defendants and for a new trial. Ordered that the appeal is dismissed, with costs. It is the obligation of the appellant to assemble a proper record on appeal, which must include any relevant transcripts of proceedings before the Supreme Court (see CPLR 5525 [a]; 5526; Gaffney v Gaffney, 29 AD3d 857 [2006]; Fernald v Vinci, 13 AD3d 333 [2004]; Gerhardt v New York City Tr. Auth., 8 AD3d 427 [2004]; Garnerville Holding Co. v IMC Mgt., 299 AD2d 450 [2002]). Here, although the appellant seeks review of an order which denied his motion, in effect, pursuant to CPLR 4404 (a) to set aside a jury verdict in favor of the defendants, he has failed to include the full trial transcript in the record. The record is inadequate to enable this Court to render an informed decision on the merits, and thus, the appeal must be dismissed (see Gerhardt v New York City Tr. Auth., supra; Garnerville Holding Co. v IMC Mgt., supra; Whyte v Destra, 298 AD2d 384, 385 [2002]). Crane, J.P., Goldstein, Fisher and Lifson, JJ., concur.

Claimant appeals from a decision of the Workmen’s Compensation Board which held that claimant had no causally related disability subsequent to July 12, 1954. Claimant had been employed as a presser for many years, and was also employed as a bricklayer on a seasonal basis. In the latter employment he sustained accidental injuries on June 9, 1953. Awards were made and compensation was paid from the date of the accident until July 12, 1954. Claimant had returned to work as a presser prior to that date, but claimed that he could not resume work as a bricklayer because of dizziness when working at heights. Claimant had sustained two prior nonindustrial accidents, one on January 26, 1952 and one on September 22, 1952. The record presents an open factual question as to whether claimant was suffering from any disability subsequent to July 12, 1954, and, if he was suffering from any disability, whether.it was occasioned by the prior nonindustrial accidents or by the accident suffered in his employment. The question of claimant’s disability subsequent to July 12, 1954 was sharply litigated, and claimant’s credibility vigorously attacked. The record contains substantial evidence, both lay and medical, to support the board’s finding that claimant had no causally related disability subsequent to July 12, 1954. Decision unanimously affirmed, without costs.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated March 20, 2006, which denied his motion for leave to renew and reargue his prior motion to restore the action to the trial calendar, which had been determined in an order of the same court dated September 26, 2005. Ordered that the appeal from so much of the order as denied that branch of the motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further, Ordered that the order is affirmed insofar as reviewed; and it is further, Ordered that one bill of costs is awarded to the respondents. The Supreme Court properly denied that branch of the plaintiffs motion which was for leave to renew. Even assuming that the new facts presented by the plaintiff in his request for leave to renew were sufficient to establish that he sustained a serious injury, restoration of this action was not warranted given the absence of a reasonable excuse for the default and a meritorious claim as to liability (see Brooks v Haidt, 30 AD3d 365 [2006]; Rubenbauer v Mekelburg, 22 AD3d 826, 827 [2005]). The plaintiff’s remaining contentions are without merit. Schmidt, J.E, Krausman, Goldstein, Covello and Angiolillo, JJ., concur.

Appeal by an employer and its insurance carrier from a decision and award of the Workmen’s Compensation Board predicated upon the finding that claimant sustained a compensable accident when he “ fainted and fell against a barrel injuring his head, bruising the left side of his head and causing him to suffer a subarachnoid hemorrhage.” Appellants contend that no substantial evidence supports the finding of industrial accident and assert that the hemorrhage caused the unwitnessed fall. The employer’s report of injury, however, filed some 14 days after the accident, stated as the cause of accident: “ Finished his work, coming out of men’s room fainted and fell against barrel, injured his head ”; and about one month after the accident a physician obtained from claimant the history that he “ was knocked down by a barrel while on the job”. If the employer’s report and the medical history (for which there was additional corroboration in the physical circumstances of the accident area) furnished inadequate support for an award, certainly they were sufficient to invoke and augment the presumption of compensable accident, which was countered by no substantial evidence to the contrary. (Workmen’s Compensation Law, § 21, subd. 1; Matter of Hoffman v. Grain Handling Co., 7 A D 2d 675, motion for leave to appeal denied 5 NY 2d 709.) The findings that claimant fell from a cause other than the subarachnoid hemorrhage and that the latter was induced by his head striking the barrel bring the case within the added risk doctrine applied in idiopathic fall cases of this nature. (See, e.g., Matter of Connelly v. Samaritan Hosp., 269 N. Y. 137.) The board was, of course, entitled to credit claimant’s testimony (which had some support in testimony of appellants’ medical expert) that he had no recollection of the accident; and, of course, was not bound to reject the evidence of claimant’s physician as to causal relation merely because he admitted the possibility of a spontaneous hemorrhage. Indeed, appellants’ expert testified that if claimant did strike his head the blow could have precipitated the subarachnoid hemorrhage. We find no merit in appellants’ contention that the board’s additional and perhaps gratuitous finding that the “ failure to timely file notice of controversy precludes carrier from pleading that the injury did not arise out of and in the course of the employment” indicates that the board failed to consider and weigh the testimony adduced by appellants. Despite the concededly late filing, actually no proffered evidence was excluded and, in fact, at one point and after a Referee’s decision adverse to appellants, the board restored the case to the Referee’s calendar “ for full development of the record ”; and thereafter in its memorandum decision upon the completed record found that “ the weight of evidence supports a finding of accident ” (emphasis supplied) and in its formal findings properly determined causation. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

In an action to recover a down payment, the defendants appeal from an order of the Supreme Court, Nassau County (Brandveen, J.), dated February 7, 2006, which granted the plaintiffs motion for summary judgment on the complaint. Ordered that the order is reversed, on the law, with costs, the motion is denied, upon searching the record, summary judgment dismissing the complaint is awarded to the defendants, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in connection with the affirmative relief sought by the defendant Mormando Family Limited Partnership in its answer. In June 2005 the plaintiff Norse Realty Group, Inc., as *736purchaser, and the defendant Mermando Family Limited Partnership (hereinafter the defendant), as seller, entered into a contract for the sale of certain real property located in Westbury. The plaintiff was concerned that a certain easement, which had been created in 1960, might impede its development of the property. By amendment to the contract of sale, the parties added a provision expressly extending until June 30, 2005 (later extended to July 30, 2005), the plaintiffs time to perform due diligence in connection with the easement, and providing, in relevant part, that “[i]f after the . . . due diligence period, Purchaser, in its sole opinion, shall determine that the easement may hinder Purchaser’s ability to develop the Property, Purchaser shall notify Seller, within two (2) business days, of its intention to terminate the Contract of Sale and Seller shall return the down payment to Purchaser within three (3) business days of such notification.” Twelve days before the end of the due diligence period, the plaintiff purported to cancel the contract in reliance on the above provision. The defendant rejected the notice of cancellation, and the plaintiff commenced this action to recover the down payment. The Supreme Court granted summary judgment in favor of the plaintiff. We reverse. The plaintiff established its prima facie entitlement to judgment as a matter of law (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In opposition, however, the defendant tendered unrebutted evidence establishing that the subject easement was expressly conditioned, in relevant part, on the continued operation of the subject property “as a bowling alley” and that, as of May 26, 2005, the defendant had “permanently ceased the bowling business” (emphasis added), “dismantled the bowling lanes,” and “commenced the removal of all of the bowling equipment and flooring from the building.” This evidence establishes, as a matter of law, that the conditional easement had already been extinguished by its own terms prior to the plaintiffs purported cancellation of the contract of sale (cf. 450 W. 14th St. Corp. v 40-56 Tenth Ave., 187 Misc 2d 735 [2001]). Therefore, the plaintiff had no conceivable basis upon which to determine that the easement might “hinder [its] ability to develop the [p]roperty.” Under the circumstances, the Supreme Court erred in granting the plaintiffs motion for summary judgment. Moreover, upon searching the record (see CPLR 3212 [b]), we award summary judgment to the defendants dismissing the complaint. We remit the matter to the Supreme Court, Nassau County, *737for further proceedings in connection with the affirmative relief sought by the defendant in its answer. Schmidt, J.E, Crane, Fisher and Dickerson, JJ., concur.

Appeal by the employer and its carrier from a decision of the Workmen’s Compensation Board making an award for continuing causally related partial disability. The claimant was employed as a smelter of linotype lead for 21 years prior to August 6, 1954. He had first consulted a physician in January, 1953 when he was experiencing flashes before his eyes, dizziness, headaches, mental confusion and loss of consciousness. In August, 1954 he was hospitalized and he responded to treatment for lead poisoning. Dr. Katz, the appellants’ consultant, testified at a hearing on July 21, 1955 that his diagnosis was retinitis pigmentosa, osteoarthritis, lues and plumbism. Plumbism is lead poisoning. He stated when he saw the claimant on February 3, 1955 he was totally disabled, partially as a result of the plumbism. A finding of occupational disease was made by the Referee and not contested by the appellants. Thereafter on February 7, 1956 a Dr. Cotter testified that his tests in September, 1955 showed negative findings of blood lead and urine lead but he said there was a partial disability made total by the eye condition which was related to the lead poisoning which the claimant had had, that a person who had had a severe lead encephalopathy should not again expose themselves to fumes or dust of lead. On that date the Referee made a continuing award for partial disability. The claimant’s attending physician, Dr. Sciarra, had reported on October 4, 1955 that “ the part played by lead intoxication in this man is pretty much at an end”. At a hearing on November 9, 1956 Dr. Wally who had examined the claimant on October 12, 1956 testified that his diagnosis was chronic lead poisoning with lead encephalopathy and peripheral lead neuropathy; lues — late, latent and chorioretinitis which in his opinion were due to the claimant’s exposures to lead in his employment. He stated the claimant had a partial disability and that under no circumstances would he recommend return to work requiring exposure to lead smelting. Dr. Reznikoff testified for the carrier that he could not make a diagnosis of lead poisoning nor could he *534find any residual of such. He stated the claimant was too weak to do physical work. The Referee again made an award for continuing partial disability. The appellants sought review by the board which referred the case to an impartial specialist, Dr. Cecil. He testified that he could find no evidence of lead poisoning and that the claimant’s present conditions were not the result of such even if he had it previously. He did state that he would be better off not returning to the same type of employment. The board found “ On the basis of the fact that it would be unhealthful and/or injurious for the claimant to resume work with lead ” a 25% disability. The appellants contend that there is no substantial evidence indicating causally related disability after February 8, 1956. There is clearly evidence to support a finding that the claimant originally had lead poisoning but the question here is whether there is any continuing disability from that condition. The medical evidence in this record is to the effect that the claimant’s other conditions, i.e., lues, chorioretinitis and osteoarthritis were unrelated to his employment and that he has no residual disability remaining from the lead poisoning. However, Dr. Wally was of the opinion that the claimant’s present condition and partial disability was the result of his exposure to lead in his employment. This testimony together with the admissions of other doctors that the claimant should not return to the same employment, should not be exposed to lead fumes or dust and was too weak to work created a question of fact and would seem to be sufficient to support the board’s finding of a continuing partial disability. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Appeal by the employer and its carrier from a decision of the Workmen’s Compensation Board making an award of death benefits. The deceased employee worked as a warehouse foreman and it was not unusual for him to help load trucks. There is. evidence indicating that on the morning in question he loaded bundles weighing 60 or 70 pounds and that within 15 minutes he complained of being sick. He was taken home and while there, according to the testimony of his widow and son, told them that he had gotten a pain in his chest from lifting at work. The decedent died the same day at the hospital. An electrocardiagram showed a myocardial infarction. Two doctors expressed the opinion that there was causal relationship between the lifting and the decedent’s death. They assumed an underlying heart disease and their testimony indicated that as a heart disease progresses, effort which was once normal can become abnormal and affect the heart. The appellants contend that there was no accident and that there is a lack of any substantial evidence indicating causal relationship. It makes no difference that the lifting was part of the decedent’s normal work if the strain and effort involved was more than the ordinary wear and tear of life (Matter of Masse v. Robinson, 301 N. Y. 34; Matter of Burris v. Lewis, 2 N Y 2d 323). The’ lifting of bundles weighing 70 pounds meets that requirement here and there was medical testimony of a substantial nature connecting the lifting to the heart attack which caused the decedent’s death. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

In two related actions, inter alia, to recover damages for breach of fiduciary duty, the defendants in action No. 1 appeal from an interlocutory judgment of the Supreme Court, Westchester County (Bellantoni, J.), dated April 26, 2005, which, inter alia, directed an accounting of the books and accounts of Bauco Construction Corp. and Northbay Construction Corp., and imposed a constructive trust. Justice Rivera has been substituted for former Justice Adams (see 22 NYCRR 670.1 [c]). Ordered that the interlocutory judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Westchester County, for a new trial, with costs to abide the event. The plaintiff Northbay Construction Co, Inc. (hereinafter Northbay), commenced action No. 1 against Bauco Construction Corp., Dominick Bauco, Ida Bauco, Robert Bauco, Donna Marie Bauco, and Peter A. Rocchio, as escrow agent, seeking, inter alia, damages for breach of fiduciary duty, an accounting, and the imposition of a constructive trust. In action No. 2, which was jointly tried with action No. 1, the plaintiffs Americo Crecco and Rocco Crecco, as shareholders of Northbay, brought a similar action against Dominick Bauco and Northbay. The plaintiffs in both actions contended, inter alia, that Americo Crecco, Rocco Crecco, and Dominick Bauco were all equal one-third shareholders in Northbay. In 1987, without the knowledge of Americo Crecco and Rocco Crecco, Dominick Bauco allegedly loaned approximately $464,579 of Northbay’s funds to Lino Bauco and in 1992 accepted repayment in the form of three properties in Brewster, New York, that were taken in the name of Dominick Bauco and his family members. After a jury trial, the Supreme Court, Westchester County, asked jurors to answer two questions in the verdict sheet: (1) “Did Dominick Bauco breach his fiduciary duty to Northbay, Americo Crecco and Rocco Crecco?” and (2) “Was a constructive trust created over the properties in Brewster, New York?” The *738Supreme Court denied the defendants’ request that the jurors also be asked whether Dominick’s alleged breach of fiduciary duty caused Northbay any damages. The defendants argued that, as part of the charge to the jury with respect to breach of fiduciary duty, there needed to be a causation question based upon PJI 3:59 (2006). In relevant part, PJI 3:59 (2006) states “Plaintiff, AB, claims that defendant, CD, breached (his, her, its) fiduciaiy duty to AB ... If you find that CD did breach (his, her, its) fiduciary duty to AB, you must then decide whether that breach was a substantial factor in causing AB to sustain damages. If you find that it was not a substantial factor in causing AB to sustain damages, you need proceed no further. If you find that CD’s breach was a substantial factor in causing AB to sustain damages, you must then decide the amount of damages AB sustained.” To prove a breach of fiduciary duty, the “plaintiff must establish that the alleged misrepresentations or other misconduct were the direct and proximate cause of the losses claimed” (Laub v Faessel, 297 AD2d 28, 30 [2002]; see Stafford v Reiner, 23 AD3d 372 [2005]). Thus, it was for the jury, as the trier of fact, to determine whether Dominick proximately caused the losses claimed through his alleged breach of fiduciary duty (see generally Canonico v Beechmont Bus Serv., Inc., 15 AD3d 327, 328 [2005]). Thus, there must be a new trial because “[b]y ... refusing to charge the jury on proximate cause, the Supreme Court removed causation from the jury’s consideration and decided the issue as a matter of law” (id.). Furthermore, because a party must prove that there was a breach of fiduciary duty for a constructive trust to be imposed, there must be a new trial on that issue as well (see Old Republic Natl. Tit. Ins. Co. v Cardinal Abstract Corp., 14 AD3d 678, 680 [2005]). The claim for the imposition of a constructive trust was not time-barred (see Barash v Estate of Sperlin, 271 AD2d 558 [2000]). In light of our determination, we need not reach the remaining contentions. Rivera, J.P, Ritter, Lunn and Covello, JJ., concur.

Appeal from a decision and award of the Workmen’s Compensation Board for reduced earnings, appellants employer and carrier denying that claimant’s initial disability from the occupational disease of lead poisoning caused by his work as a painter continued to the period of the present award. Claimant’s attending physician filed reports, answering “ yes ” to a question as to resulting “Permanent defect ”, which he then described as “Inability to do painting any more or to work in any lead contact ”. The doctor testified to the same effect. His consultant rendered a report to the carrier, from which appellants quote, and in which he said that claimant’s condition is “arrested” and that he cannot be employed where lead exposure is present. He stated that the prognosis is “ guarded ” and that “ an infection or seidosis may activate the lead poisoning.” Appellants mistakenly rely upon the doctor’s additional statement in the report that claimant’s “ present complaints are not due to lead poisoning ”. These complaints related to an acute and apparently temporary episode attributed by the attending physician to an intestinal or stomach upset due to food; and the doctor’s statement is thus irrelevant to the issue respecting the concededly quiescent condition, which would not be expected to evoke “ complaints ”. The carrier’s expert said that claimant “ is not any more or less apt to get lead poisoning than he was the first time ” and that “ the hazard is the same whether he had been cured or not”, the difficulty being that his renal system does not excrete lead “as well as in the average individual”. Upon interrogation by the Referee, this expert conceded that some amount of lead remained in claimant’s bones but when asked as to the possibility of an acute exacerbation said, “ I doubt if this man has enough lead with the modern deleting agents * * * this agent * * * tends to — it goes into the bone and takes out the lead.” In testing the issue of continued causal relation in eases such as this, the courts have consistently construed quite literally the sections of the Workmen’s Compensation Law which constitute the sole source of claimants’ rights. In article 3, relating to occupational diseases, subdivision 1 *535of section 37 defines “disability” as “the state of being disabled from earning full wages at the work at which the employee was last employed ” (italics supplied) and section 39 provides compensation “for the duration” of such a “ disablement ”, “ provided, however, that if it shall be determined that an employee so disabled is able to earn wages at another occupation which shall be neither unhealthful nor injurious, and such wages do not equal his full wages prior to the date of his disablement, the compensation payable shall be computed pursuant to the provisions of article two of this chapter ”. We said in a ease closely parallel to this: “ These statutory directives, coupled with the familiar principle that an employer takes an employee as he finds him, whatever the latter’s physical idiosyncrasies may be, or the allergies to which he may be subject, furnishes justification upon the conceded facts for the finding that claimant contracted an occupational disease, and became entitled to compensation for the disability resulting therefrom.” (Matter of Adamsbaum v. Broadway Health Club, 271 App. Div. 576, 578, motion for leave to appeal denied 297 N. Y. 1031; see Matter of Cutting v. Hewitt Rubber Co., 274 App. Div. 1080, affd. 300 N. Y. 598; Matter of Burley v. American Locomotive Co., 2 A D 2d 621.) The medical evidence, even in aspect most favorable to appellants, brings claimant within the language of the statute. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Appeal by the defendant from a judgment of the County Court of Cortland County under which he was resentenced to from 7½ to 15 years at Attica Prison. On September 10, 1956 the defendant was indicted on four counts of forgery in the second degree as a third offense with the indictment setting forth the two previous felonies. He was assigned counsel, plead not guilty but then withdrew his plea and plead guilty on one count. On October 29, 1956 he was sentenced to from 7½ to 15 years at Attica Prison and the other three counts of the indictment were dismissed. In May of 1959 the defendant instituted a habeas corpus proceeding contending that section 480 of the Code of Criminal Procedure had not been complied with at the time of his sentencing. The writ was sustained and he was ordered returned to Cortland County for resentencing. At the resentencing on June 15, 1959 the defendant was represented by counsel and motions in arrest of judgment were made contending that the indictment was faulty in that it did not set forth that the second felony alleged was committed before the first felony and further on the basis of section 275-b of the Code of Criminal Procedure which was enacted in 1957 to the effect that previous convictions for crimes shall no longer be set forth in the indictment. The court denied the motions and again sentenced the defendant to from 7% to 15 years at Attica Prison. The defendant contends that under section 275-b the indictment was defective since it set forth prior convictions. Section 275-b was not enacted until 1957, this indictment was returned in 1956 and even though the defendant was resenteneed on it in 1959 section 275-b "would not affect the validity of an indictment that predated its effective date. The contention that the indictment must show, in regard to the prior two convictions, that one was committed after the other is likewise without merit. The defendant contends that the probation report referred to by the Judge listed crimes he had not committed. However, he raised certain objections to that at the time of the sentencing and the Judgé stated that even accepting the corrections he would impose the same sentence. Further the argument that there is no such crime as forgery in the second degree as a third offense is baseless for it clearly refers to the defendant being a third offender. Judgment unanimously affirmed, without costs.

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Lally, J.), dated March 10, 2005, which, upon a jury verdict in favor of the defendant Herbert S. Perry and against her on the issue of liability, and upon the denial of her motion pursuant to *739CPLR 4404 (a) to set aside the verdict as against the weight of the evidence, is in favor of the defendant Herbert S. Perry and against her dismissing the complaint against that defendant. Ordered that the judgment is affirmed, with costs. A jury verdict should not be set aside as against the weight of the evidence unless the verdict could not have been reached upon “any fair interpretation of the evidence” (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995] [internal quotation marks omitted]; see Nicastro v Park, 113 AD2d 129, 134 [1985]). Here, the jury’s verdict was not against the weight of the evidence. Nor were the issues “so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Garrett v Manaser, 8 AD3d 616, 617 [2004]; see El-Shafaie v Yerma, 2 AD3d 394 [2003]). Accordingly, the jury verdict in favor of the defendant Herbert S. Perry and against the plaintiff should not be disturbed. Rivera, J.E, Krausman, Goldstein and Florio, JJ., concur.

Appeal by the employer and its carrier from a decision and award of the Workmen’s Compensation Board. Claimant was employed as foreman of the employer’s machine room where greeting cards were finished. He had worked for the employer from 1940 until January 10, 1952. His job involved keeping the machines running and each week he used an air hose to clean the dust off the machines. A substance called “ glitter ” was used to decorate the greeting cards and it was determined that it was almost pure silica. This “glitter” was present throughout the room. The claimant also worked with an emery wheel. He testified that there was a lot of dust where he worked and that he inhaled quite a bit of the dust. On January 10, 1952 the inhalation of kerosene fumes caused the claimant to have a coughing attack. He went home, consulted a doctor and never returned to work. Medical testimony was produced indicating that the claimant had silieo-tuberculosis and that it was related to his employment. One doctor related it to the work at the emery wheel and another, after the silica content of the “ glitter ” was determined, related it to the exposure to that substance as well as the work at the emery wheel. The board determined that the silieo-tuberculosis was caused by his exposure to silica during his employment. The appellants contend that it was not shown, that the silica “glitter” was in dust form capable of inhalation. There is evidence of exposure to silica dust from the emery wheel which was in itself sufficient to cause the disease. Further as to the “glitter” there are several references to it in the record as “glitter” dust as well as the claimant’s testimony showing the presence of the “glitter” throughout the room where he worked and his constant exposure to dust in that room. To reverse on the ground that harmful exposure to “silica dust” was not established would not only place an overly technical interpretation on the statute but would also not be in accordance with the record. Decision and award unanimously affirmed with one bill of costs to be divided between the respondents, with printing disbursements to each.

Appeal by the defendant from an order of the Supreme Court, Kings County (Knipel, J.), dated May 3, 1999, which, after a hearing (Dowling, J.), 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 Supreme Court’s finding, in effect, that, inter alia, the Board of Examiners of Sex Offenders correctly determined that he should be assessed 25 points as to item number two, 20 points as to item number three, 20 points as to item number four, and 30 points as to item number five, for a total of 95 points on those items, is supported by clear and convincing evidence (see Correction Law § 168-n [3]). The Supreme Court properly considered the grand jury testimony in making its determination (see Correction Law § 168-n [3]; People v Await, 17 AD3d 336 [2005]; People v Thomas, 300 AD2d 379 [2002]). This total of 95 points, combined with the total of 25 points from the uncontested items numbers one and nine, gives the defendant a total of 120 points. This is above the 110 points needed to designate the defendant as a level three offender, and there is no reason to deviate therefrom. In light of this determination, we need not reach the defendant’s remaining contentions. Crane, J.E, Florio, Fisher and Dickerson, JJ., concur.

Appeal from a dismissal of the complaint at the end of the plaintiff’s case on the ground of failure to establish a cause of action. The complaint alleged the defendants were negligent in repairing his automobile and breached a contract existing between them. The testimony adduced at the trial showed that plaintiff was the owner of a 1949 Nash automobile and that on May 14, 1955, while traveling on the Thruway the automobile became disabled due to engine trouble and which necessitated it being taken to the defendants’ garage for repairs. After some conversations between the parties, the work was undertaken and repairs were made to the engine block, rods, bearings and other items with the understanding that the defendants would not guarantee the work done on the block. When the work" was completed the plaintiff went to the garage, paid for the repairs and drove the automobile some 70 miles to Syracuse where he left it out in the open for some weeks and according to his testimony, it was not driven during that period. Eventually he drove the automobile from Syracuse to the vicinity of Albany where he again experienced engine trouble and it was repaired by an Albany garage. A mechanic from that garage testified at the trial and in substance stated that the trouble and damage to the motor was due to a leak of oil caused by a hole in the pan and that the trouble was between the No. 2 and No. 3 rods. His testimony did not establish the damage was caused by any work or failure on the part of the defendants. The plaintiff testified that on the occasion of driving from Syracuse to Albany he had stopped *537and the car had been greased and the oil checked. Exhibits were offered as to the statements of both garages. In examining the testimony, if there is any evidence in the record — direct or circumstantial — from which the defendants’ negligence might be reasonably inferred, it was a jury case and error to dismiss the complaint. (Lubelfeld v. City of New York, 4 N Y 2d 455, 460.) Giving the plaintiff the full intendment of the rule we fail to perceive where he has established a prima facie case on either theory of his complaint. There is no affirmative evidence from which a verdict for the plaintiff would be proper or justified. His own witnesses establish that the damages could be the result of several causes. When or how the hole in the pan of the automobile was caused is a sheer guess and the plaintiff failed to prove any facts sufficient to sustain the cause of action set forth in his complaint. Judgment and order unanimously affirmed, without costs.

Appeal from a judgment of the County Court of Montgomery County convicting defendant of attempted grand larceny, second degree. Appellant contends that the indictment is insufficient as failing to allege a “statement of the act constituting the crime” (Code Crim. Pro., § 275, subd. 2). The proof was that the crime was attempted when defendant tried to open a metal cash box with the aid of a screwdriver and appellant asserts that these alleged acts were required to be pleaded. The indictment fully complies with the statute defining larceny (Penal Law, §§ 1290, 1296) and with that setting forth the essentials of a sufficient indictment for larceny (Penal Law, § 1290-a) except, of course, as it charges and alleges an attempted larceny rather than larceny itself and we perceive no basis for a distinction on that ground. Appellant objects to a variance between the allegation of ownership of the property attempted to be stolen and the proof thereof. The indictment charges that at the Town of Florida in Montgomery County defendants attempted to steal “ from the Mohawk Restaurant certain property owned by said Mohawk Restaurant” consisting of cash. The proof was that the money was owned by the operator of the service station physically “ connected ” with the restaurant at the Mohawk service area provided by the New York State Thruway Authority at a point on the Thruway in Montgomery County. There was no reference or objection to this difference at any time on the trial and the establishment was referred to throughout the trial, by the witnesses and both attorneys, as the Mohawk service station, the Mohawk service area and the Mohawk service center. There is no suggestion in the record nor any intimation upon the appeal that defendant was in any way prejudiced in preparation for or upon the trial or otherwise, unless upon the ground that he might be subjected to double jeopardy by reason of the misdescription. (See Code Crim. Pro., §§ 284, 285; People v. Armlin, 6 N Y 2d 231, 234.) In this case, however, that ground seems to us insubstantial, so readily identifiable even without reference to the record are the official service area location and the restaurant and service station businesses conducted upon it and in the same building. Indeed the pleading of the name of a corporate or individual owner or operator, which would ordinarily be deemed sufficient, might less readily identify the crime and its situs. Appellant’s remaining objections seem to us so tenuous as to require no discussion; and we find the verdict amply warranted by strong and convincing evidence which was presented upon a trial remarkably free from objection and questionable rulings and submitted to the jury under an exemplary charge. The court commends John A. Kosinski, Jr., Esq., who was assigned to prosecute this appeal, for the able and conscientious manner in which he performed his assignment. Judgment unanimously affirmed.

Appeal by the defendant from an order of the Supreme Court, Kings County (Marrero, J.), dated February 3, 2005, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C. Ordered that the order is reversed, on the law and the facts, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new hearing and determination in accordance herewith. The defendant was convicted on July 29, 1982 of attempted rape in the first degree, a class C felony sex offense under Penal Law §§ 110.00, 110.05 (4), and § 130.35. At a hearing pursuant to the Sex Offender Registration Act, the Supreme Court designated the defendant a level three sex offender based on a presumptive override for a prior felony conviction for a sex crime. However, the Supreme Court erred in treating the defendant’s prior youthful offender adjudication as a prior felony conviction for purposes of invoking the presumptive override. The Criminal Procedure Law explicitly provides that “[a] youthful offender adjudication is not a judgment of conviction for a crime or any other offense” (CPL 720.35 [1]). Once the defendant was adjudicated a youthful offender, his conviction was deemed vacated and replaced by a youthful offender finding, and thus, it may not later be used as a “prior felony conviction for a sex crime” to support a presumptive override (see CPL 720.20 [3]; People v Cook, 37 NY2d 591 [1975]; People v Vidal, 26 NY2d 249 [1970]; People v Ramdhan, 243 AD2d 657 [1997]). Nevertheless, according to the Risk Assessment Guidelines developed by the Board of Examiners of Sex Offenders, it is appropriate to consider the facts that led to the youthful offender adjudication in assessing the offender’s likelihood of recidivism and his danger to public safety (see Risk Assessment Guidelines and Commentary, at 6-7). Thus, it is appropriate to allocate risk points in the category of criminal history on the basis of those facts (see People v Arnold, 35 AD3d 827 [2006]; People v Smith, 35 AD3d 693 [2006]; People v Moore, 1 AD3d 421 [2003]). *741However, since the court failed to properly consider the underlying facts that led to the prior youthful offender adjudication, this matter must be remitted to the Supreme Court, Kings County, for a new hearing and determination. Moreover, the Supreme Court did not render an order which set forth its determinations, findings of fact and conclusions of law as required under Correction Law § 168-n (3). Miller, J.E, Spolzino, Goldstein and McCarthy, JJ., concur.

Appeal by employer and carrier from awards of disability compensation. Claimant was injured when a station wagon owned by the employer and which claimant was driving struck a utility pole. Appellants contend that the board erroneously found that the injuries arose out of and in the course of claimant’s employment, and urge that the injuries are the result of a deviation from his employment. Claimant was employed as a chauffeur, and his duties required him to drive a heavy truck for long distance deliveries on occasions, and to drive a station wagon for local deliveries. He had returned the day before the accident from a trip to Cincinnati, Ohio, with the heavy truck, the trip lasting from Tuesday to Sunday. On October 1, 1956, he made local deliveries with the station wagon, completing his immediate assignments at about 6:00 p.m. It was then a part of his duties to take the station wagon to a private garage near claimant’s home, which was rented by the employer. It appears that claimant was required, whenever it became necessary, to make deliveries at any time, day or night, seven days per week, and the employer’s station wagon was kept near his home to make it readily accessible for such purposes. On his way to the garage on the night in question, claimant testified that he stopped at a restaurant for pie and coffee, read a newspaper, and thereafter he felt sleepy and tired and slept for a time in the station wagon by the side of the road. Thereafter he resumed his journey to the employer’s garage and the accident occurred. Claimant denies that he had any alcoholic beverages to drink, and says that the accident occurred about 11:00 p.m. Following the accident claimant was taken to a hospital by ambulance, and the hospital records contain statements such as, “ He had been drinking excessively previously to this ”, and was “ Lying in bed with alcoholic odor of breath ” and a part of the diagnosis was “ acute alcoholism ”. The person or persons making such entries in the hospital record were not called as witnesses. Appellants did not contend before the board and do not now that the accident was due solely to intoxication. The board has expressly found that claimant was not intoxicated. There is no direct evidence of any alcoholic drinking by claimant or any direct evidence of his intoxication. Appellants concede in their brief that if claimant’s only deviation' was to stop for pie and coffee or to sleep beside the road, that the awards should be sustained. Their arguments seem to be, (1) that claimant’s testimony is incredible as a matter of law; and (2) that the exact opposite of his testimony, i.e., that there was a wider and different variation, is established without any direct evidence by the mere falsity of claimant’s testimony without any direct evidence to the contrary. In attacking the credibility of the claimant appellants rdly heavily upon a notation on the hospital record which they contend establishes that claimant was admitted at 4:00 a.m. on October 2. The “Admission Record” has an isolated notation on the margin thereof “ Time 4:00 a.m.” There is some evidence that claimant was unconscious until sometime after he arrived at the hospital. The same record sheet records the history obviously obtained from claimant, and it is not at all clear whether the notation on the margin refers to the time the document was being prepared or to the time of admission. Moreover, the hospital sheet labeled “Admission — Emergency Service” following the printed words date and time, has a notation “ 10/2/56 1:15 a.m. ”, The credibility of claimant’s testimony and the weight to be given to it are matters exclusively within the province of the board. Upon the entire record there is substantial evidence to support the board’s finding that the accident arose out of and in the course of employment. Matter of Pasquel v. Coverly (4 N Y 2d 28) is readily distinguishable. There is no evidence in this record which would *539require the board to find that the accident resulted from risks produced by the deviation, or that the injuries were the consequences of the deviation. Awards unanimously affirmed, with costs to the Workmen’s Compensation Board.

Appellants appeal from an award of compensation subsequent to June 27, 1955. There is no dispute as to the facts. Claimant, while working as superintendent of the employer’s apartment house, sustained an injury which was diagnosed as a herniated intervertebral disc and which required an operation. He was also employed as a bus driver to which work he returned following his recovery. The doctors for the claimant and for the carrier both testified that he was suffering from a mild partial disability as a result of the back condition and that he should not do heavy work. He testified as part of his janitorial duties it was necessary to mop the halls in the building, mow the grass, clean the sheds, keep the cans in order, on occasions to move stoves and refrigerators and that once a week 25 to 30 cans of ashes and debris were removed from the apartment and were afterward left outside the building stacked and that the claimant would return these to the basement, usually five or six contained in each stack. His doctor testified that he should not lift anything over 50 pounds and that he had advised him not to return to the janitorial work or he might have a recurrence of his back trouble. The doctor for the carrier testified that claimant had a mild disability and that he agreed generally with his doctor although he thought he could return to his janitorial duties providing he did no heavy work. The contention of the appellants appears to be that even though it is admitted claimant has a mild partial disability and that his own physician advised him not to return to the janitorial duties, he is not entitled to an award unless he first attempts to do the work and it is shown he is unable to perform such tasks. Such is not the rule. The board has made a factual finding, amply supported by testimony, that claimant has suffered a disability and is entitled to an award therefor. We are unable to say that as a matter of law such is not the fact. There was substantial testimony to sustain the finding of the board. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of a judgment of the Supreme Court, Westchester County (Nastasi, J.), dated November 19, 2004, as, after a nonjury trial, in effect, awarded $0 in damages to the plaintiff Fernando Piedrahita for past and future lost earnings. Ordered that the appeal by the plaintiff Gloria Piedrahita is dismissed, as she is not aggrieved by the judgment insofar as appealed from (see CPLR 5511); and it is further, Ordered that the judgment is reversed insofar as appealed from by the plaintiff Fernando Piedrahita, on the law and the facts, and the matter is remitted to the Supreme Court, Westchester County, for a new trial on the issue of damages for past and future lost earnings, with costs to abide the event. An alien unauthorized for employment in the United States is not barred from seeking to recover, inter alia, lost wages in a personal injury action to recover damages sustained because of a violation of New York’s workplace safety laws (see Balbuena v IDR Realty LLC, 6 NY3d 338 [2006], affg Majlinger v Cassino Contr. Corp., 25 AD3d 14 [2005]). Accordingly, we remit the matter to the Supreme Court, Westchester County, for a new trial solely on the issue of the plaintiff Fernando Piedrahita’s entitlement to past and future lost earnings (id.; see Collins v New York City Health & Hosps. Corp., 201 AD2d 447 [1994]). The defendant’s remaining contentions are without merit. Ritter, J.E, Goldstein, Florio and Lifson, JJ., concur.

Appeal from a decision and award of the Workmen’s Compensation Board, appellants contesting only the finding of employment and asserting that claimant worked as an independent contractor in buying used and new cars from dealers for resale by the appellant partnership, an automobile dealer, alleged and found to have been the employer and for convenience hereinafter referred to as such. Claimant bought cars for some five years prior to the accident, exclusively for the employer, who had other buyers as well. He reported personally at the employer’s office periodically if not daily. The employer directed him “what to buy and what not to buy” and exercised complete control as to the extent of his territory and as to the firms from which he might purchase cars. He had to obtain permission before negotiating with any dealer and as to particular dealers his instructions might be changed from time to time. Upon each purchase, as “ a convenience to facilitate the sale ”, he issued his personal check which the employer in effect paid by depositing funds to cover it. He advised the employer by telephone of each purchase shortly before or shortly after issuing his check and in some eases apparently obtained advance approval. He received weekly payment of what he termed his “ commissions ”, being 50% of the net profits on the sales of cars purchased by him. The employer’s report *540of injury, filed two days after the accident, stated (as did a subsequent report) that claimant was employed by it as a buyer and had been so employed for six years on a commission basis. The employer made and reported regular with-holdings for Federal income tax and F.I.C.A. employee tax. In his income tax return in evidence claimant identified himself as such employee and reported as wages his income from the employer. Testifying, he denied any joint venture and said, “ they gave me my commission at the end of the week and that was it.” Feither of the employer partners nor any of their employees was called to testify in contradiction of claimant’s evidence. It was for the board to apply the conventional and long-recognized tests of an employer-employee relationship and when, as here, “ ‘ conflicting inferences are possible, the finding of the Board prevails.’” (Matter of Gordon v. New York Life Ins. Co., 300 N. Y. 652, 654, citing Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60, 64 and Workmen’s Compensation Law, § 20; Matter of Williams v. Nobbs & Williams, 286 App. Div. 897.) Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

*742In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Johnson, J.), dated April 25, 2006, which denied her motion to vacate an order of the same court dated March 31, 2005, granting that branch of the defendant’s motion which was for summary judgment dismissing the complaint, upon her default in opposing that branch of the motion, and dismissing the action. Ordered that the order dated April 25, 2006 is affirmed, with costs. To vacate her default in opposing that branch of the defendant’s motion which was for summary judgment dismissing the complaint, the plaintiff was required to demonstrate both a reasonable excuse for her default and a meritorious cause of action (see CPLR 5015 [a]; McClaren v Bell Atl., 30 AD3d 569 [2006]; Yurteri v Artukmac, 28 AD3d 545 [2006]; Matter of Hye-Young Chon v Country-Wide Ins. Co., 22 AD3d 849 [2005]). Although a court may, in its discretion, relieve a party of a default caused by law office failure (see CPLR 2005; Conserve Elec., Inc. v Tulger Contr. Corp., 36 AD3d 747 [2007]; Costello v Reilly, 36 AD3d 581 [2007]), a conclusory and unsubstantiated claim of law office failure will not rise to the level of a reasonable excuse (see Matter of ELRAC, Inc. v Holder, 31 AD3d 636 [2006]; McClaren v Bell Atl., supra; Matter of Denton v City of Mount Vernon, 30 AD3d 600 [2006]; Solomon v Ramlall, 18 AD3d 461 [2005]; Abrams v City of New York, 13 AD3d 566 [2004]). Since the plaintiff failed to adequately detail and substantiate the alleged law office failure that resulted in her failure to oppose that branch of the defendant’s motion which was for summary judgment dismissing the complaint, the Supreme Court providently exercised its discretion in denying her motion to vacate her default (see Matter of ELRAC, Inc. v Holder, supra; McClaren v Bell Atl., supra; Matter of Hye-Young Chon v CountryWide Ins. Co., supra; Solomon v Ramlall, supra; Abrams v City of New York, supra). Schmidt, J.R, Krausman, Goldstein, Covello and Angiolillo, JJ., concur.

Appeal by the employer and its carrier from a decision of the Workmen’s Compensation Board holding that the claimant was an employee of Worley Homes, Inc., appellant. The claimant is a carpenter. He entered into a written contract with Worley Homes, Inc., to purchase a home for $12,200. The down payment was to be 10% or $1,200. Typed on the back of the contract for the purchase of the house was the following: “Purchaser agrees to do following work as part of down payment: Framing and sheathing, $310. Roofing and siding, $108. Trimming $80. Laying of floors, $42” for a total of $540. While performing this work and standing on a scaffold furnished by Worley the claimant fell and fractured his right ankle. The materials which were used in the work as well as a power saw were supplied by Worley. Worley performed work on the house both before and after the claimant worked on the house. The Referee found an employer-employee relationship between the claimant and Worley and the board affirmed. There is no indication in the record, which is quite brief, that any control was exercised over the claimant. It appears that the work claimant was to do was agreed upon and that he did it in his own manner. Additionally it would not seem that Worley could have discharged him had it seen fit. The method of parent was a lump sum applied against the down pa3ment and this again indicates the status of independent contractor. We have here a claimant who is a carpenter, a skilled worker, who was working on his own house. Although Worley did furnish some tools it would appear that the claimant had tools of his own. The board contends that the question of employer-employee relationship here is within the realm of its fact-finding power. Matter of Klein v. Sunrise Bldg. Co. (7 A D 2d 805, motion for leave to appeal denied 5 N Y 2d 711) cited by the board is not in point. In that case the carpenter was not working on his own home but had entered into a contract to do work as a subcontractor. In our view claimant would not be classified as an employee under either of the prevailing tests of employer-employee relationship. As to the “ relative-nature-of-work ” test it appears that claimant’s work had no relation to Worley’s business other than as it was connected with claimant’s contract of purchase. (See 1 Larson, Workmen’s Compensation Law, § 43.52, pp. 632-634.) As to the “control” test there is no evidence that Worley had a right to control or exercised any control over the details. Certainly there was no right to discharge and the method of pasrment was not indicative of an employer-employee relationship. (1 Larson; Workmen’s Compensation Law, § 44.00, p. 637.) Award reversed and claim *541dismissed, with costs to the appellants against the Workmen’s Compensation Board.

Appeal from a decision and award of the Workmen’s Compensation Board, appellants contesting (1) the finding of employee-employer relationship between claimant and appellant Reynolds Lumber Company (hereinafter referred to as Reynolds); and (2) the finding of accident arising out of and in the course of claimant’s employment by appellant Reynolds. Some months prior to the accident one Cromling entered into an oral agreement with Reynolds to furnish the labor and equipment for cutting logs on Reynolds’ wood lot and transporting them to Reynolds’ sawmill, for which Cromling was to be paid a fixed sum per 1,000 feet. It is clear that after the work had progressed for some time and a considerable quantity of logs had been cut but not removed, Cromling’s men were not being paid and, further, that he was unable to supply adequate equipment, although Reynolds had paid him substantial sums to apply on the contract price. Thereupon and some few days before the accident, the parties entered into a new arrangement whereby Cromling and his three employees, including claimant, were put on Reynolds’ payroll, each at $1 per hour. As to this, Mr. Reynolds, the proprietor of the appellant company, testified: “ That was deducted out of the price per thousand feet that they got. We took out all the withholding and everything that had to be taken out, and they was on our insurance, of course, naturally.” It is clear that, departing from the original agreement, Reynolds now furnished what was for this relatively small, four-man operation a substantial amount of equipment, including a tractor and a truck. Cromling considered that under the new arrangement he became merely the foreman on the job and that in supervising claimant’s work he acted for Reynolds. There was no close supervision of Cromling but apparently none was required, beyond Reynolds’ direction as to the size of the logs to be cut. Reynolds, nevertheless, exercised some control. Mr. Reynolds said that Cromling had authority to hire “ whoever he wanted * * * as long as they were 18 years old ”; but Mr. Reynolds limited the men’s working time to 40 hours per week to avoid payment of overtime. Claimant testified that at the time of the new arrangement Cromling asked him to work for Reynolds and that when he returned to work after the accident he reported at the Reynolds wood lot and worked for Reynolds for some months. Prior to and upon the hearings Reynolds seemed to concede, or, at least, not to question the employer-employee status generally; as evidenced by its statement in a letter to the board that claimant was not working for it “ on the day he was injured, although he was on our payroll at the time ”, but was “ merely watching” Cromling performing work which had “nothing at all to do with our job in any way therefore we do not feel that we are connected with the accident at all”; and as further evidenced by Reynolds’ attorney’s expressed agreement with the Referee’s statement that if the accident had happened at the Reynolds sawmill “ there wouldn’t be any question ”, the Referee adding, after counsel had so agreed, “That disposes of the employer-employee thing right there by itself. Now, the primary question is whether this accident on this particular morning arose out of and in the course of the employment, or was it outside the employment?” Although the case was close upon the issue of employment status and another trier of the facts might have reached a contrary result, there was sufficient evidence, which the board was entitled to credit, to support the decision. The determination, upon conflicting inferences, of the issue of employer-employee relationship is for the board and its finding must prevail. (Matter of Gordon v. New York Life Ins. Co., 300 N. Y. 652, 654.) *542Prior to the accident a tractor of Cromling’s was loaded on the Reynolds truck to be transported to Reynolds’ wood lot for use there, as the board found upon substantial evidence, but at the time of the accident the truck was upon Cromling’s premises and, as the board was also entitled to, and did find, claimant was standing at the rear of the truck, after assisting Cromling in backing it, waiting for a piece of timber to be cut for his and Cromling’s use in unloading the tractor at the Reynolds wood lot that same day, he and Cromling planning to go there as soon as the timber was cut. Mr. Reynolds admitted that because a heavier tractor was needed this one was to be taken to the wood lot and he said that he might have given permission for the use of the truck to transport it but did not remember. The accident occurred when the belt of the saw broke and struck claimant, causing the loss of an eye. Upon this record, we cannot say that the award was not supported by substantial evidence. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

*743In a products liability action, inter alia, to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Queens County (Schulman, J.), dated January 3, 2006, as denied that branch of its motion which was for summary judgment dismissing the first and second causes of action based on negligent design or manufacture. Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court properly denied that branch of the defendant’s motion which was for summary judgment dismissing the plaintiffs causes of action based on negligent design or manufacture. As the court properly noted, these causes of action were not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 USC § 136 et seq. (hereinafter FIFRA), as FIFRA only preempts state law causes of action based on inadequate labeling or a failure to warn (see State of New York v Fermenta ASC Corp., 238 AD2d 400, 402 [1997]; Warner v American Fluoride Corp., 204 AD2d 1, 5-7, 11-14 [1994]). As to negligent design or manufacture, “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact . . . Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]). The defendant cannot meet its burden by pointing to gaps in its opponent’s proof (Ramos v Mac Laundry Hemp, Inc., 22 AD3d 822 [2005]; Wolff v New York City Tr. Auth., 21 AD3d 956, 957 [2005]; Mennerich v Esposito, 4 AD3d 399, 400-401 [2004]; Dalton v Educational Testing Serv., 294 AD2d 462, 463 [2002]). Here, the defendant never put forth any proof either that the decedent did not use the product, or that the product did not proximately cause his illness or death. Therefore, it failed to establish its prima facie entitlement to judgment as a matter of law, regardless of the sufficiency of the plaintiffs’ opposing papers (see Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]). In light of this determination, the defendant’s remaining contention need not be reached. Crane, J.E, Goldstein, Fisher and Lifson, JJ., concur.

The employer and carrier appeal from an award of $2,500 for serious facial disfigurement. The sole contention of appellants is that the accident did not arise out of and in the course of employment. Claimant and her husband were jointly hired as janitors of a 12-family-tenement house. They received as compensation a rent free apartment in the building worth about $35 per month. The building had no central heating, each tenant having a separate heating appliance within the apartment and furnishing his own fuel. There was a coal stove furnished by the employer in the claimant’s apartment, and the employer also furnished one ton of coal per year. After using this stove for several years claimant and her husband replaced it with one which they purchased. While cleaning this stove with a liquid polish the polish exploded and claimant sustained serious burns. Claimant was subject to call 24 hours a day and lived within the premises to enable her to take care of the needs of the employers’ tenants. The accident happened in mid-Winter, and of course claimant *543had to provide heat to enable her to live on the premises and perform her duties. Cleaning the stove was an act made necessary by living in the employers’ premises to carry out her duties. The ownership of the stove should not be controlling. The accident involved a risk closely associated with and rendered necessary by the employment. The record supports the board’s finding that the accident arose out of and in the course of employment. (Matter of Finnegan v. Biehn, 276 N. Y. 50.) Award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Appeal from a decision of the Workmen’s Compensation Board which established accident and causal relation in a heart case. The claimant, a janitor and custodian of the employer Board of Education, while operating a gasoline driven snow plow on November 30, 1955, suffered chest pains. He went to the school where a doctor was called and diagnosed his condition as acute coronary occlusion with myocardial infarction and generalized arteriosclerosis. The employer’s report of injury, dated December 12, stated that “ Exertion brought on heart attack ”. It was established that the wet snow which fell averaged from six to eight inches in depth. The claimant testified he went to work early—6 o’clock — because of the storm. The snow plow, weighing 610 pounds, was hand controlled and the operator worked behind it and controlled the steering and its progress by a handle. It required effort when turning it around at the end of the parking lot. While this was part of the regular work of the claimant governed, of course, by the amount of snowfall, there was evidence from which the board could find that the exertion on this particular occasion was such as to cause and precipitate the heart attack. The medical testimony amply sustained the finding not only by claimant’s doctor but by one of the appellants who stated that in his opinion there was a relationship between the incident on November 30 and the coronary occlusion. Decision and award unanimously affirmed, with costs to Workmen’s Compensation Board.

*744In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated October 6, 2005, which granted the defendant’s 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. The defendant made a prima facie showing that he was entitled to the benefit of the exemption from liability under Labor Law §§ 240 and 241 for owners of one- or two-family dwellings who contract for but do not direct or control the work (see Ramirez v Begum, 35 AD3d 578 [2006]; Small v Gutleber, 299 AD2d 536, 537 [2002]; Moran v Janowski, 276 AD2d 605, 606 [2000]; Milan v Goldman, 254 AD2d 263, 264 [1998]). In opposition to the motion, the plaintiff failed to raise a triable issue of fact as to whether the dwelling qualified as a one- or two-family dwelling, whether the site and purpose of the work was primarily residential or commercial (see Bartoo v Buell, 87 NY2d 362, 369 [1996]; Khela v Neiger, 85 NY2d 333 [1995]; Ramirez v Begum, supra; Small v Gutleber, supra at 536), and whether the defendant directed or controlled the work (see McGlone v Johnson, 27 AD3d 702 [2006]; Siconolfi v Crisci, 11 AD3d 600, 601 [2004]; Garcia v Petrakis, 306 AD2d 315, 316 [2003]; Tilton v Gould, 303 AD2d 491, 492 [2003]; Lang v Havlicek, 272 AD2d 298 [2000]). Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing the causes of action alleging violations of Labor Law § 240 (1) and § 241, and denied the plaintiffs cross motion for summary judgment. In addition, since the plaintiff failed to raise a triable issue of fact as to whether the defendant directed or controlled the work, and whether the accident was caused by an unsafe condition on the property of which the defendant had notice or which he caused, the Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing the causes of action pursuant to Labor Law § 200 and common-law negligence (see McGlone v Johnson, supra at 703; Garcia v Petrakis, supra at 316; Richichi v Construction Mgt. Tech., 244 AD2d 540, 541 [1997]). Schmidt, J.E, Skelos, Lifson and Covello, JJ., concur.

*745In an action, inter alia, for a judgment declaring that the plaintiff is entitled to remain in possession of the subject premises pending an agreement between the parties as to the amount to be paid to the plaintiff for its improvements to the premises and that the plaintiff is entitled to the actual cost of its improvements to the premises without regard to amortization or depreciation tables, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Rudolph, J.), entered September 12, 2005, as granted that branch of the defendant’s motion which was for summary judgment. Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the plaintiff is not entitled to remain in possession of the subject premises pending an agreement between the parties as to the amount to be paid to the plaintiff for its improvements to the premises and that the plaintiff is not entitled to any payment for the cost of its improvements to the premises. In 1983, the predecessor in interest to the plaintiff Rocar Realty Northeast, Inc. (hereinafter the tenant), entered into a ground lease with the predecessor in interest to the defendant, Jefferson Valley Mall Limited Partnership (hereinafter the landlord). The subject of the lease was an unimproved commercial property on which the tenant intended to construct a building to be used by a subtenant bank as a branch office. The lease was for a term of 20 years, beginning on January 31, 1984, with a tenant’s option to renew for up to two additional five-year terms. The lease required the tenant to construct the bank building at its own expense and to surrender the premises to the landlord at the end of the lease term, at which time the landlord would purchase the improvements from the tenant. Specifically, article XVIII of the lease provided that: “Tenant *746shall surrender the premises and the improvements thereon to Landlord upon the expiration or earlier termination of the term of this Lease in good condition and repair, damage by casualty and ordinary wear and tear excepted. Provided Tenant is not in default hereunder, Landlord will purchase the improvements thus surrendered from Tenant and will pay therefore ] a sum equal to the unamortized book value of such improvements, which sum will be paid to Tenant within sixty (60) days following such surrender.” When the lease term expired on January 31, 2004 the tenant sought payment for the improvements it had made to the property, but the parties could not agree on the amount to be paid for the improvements because a dispute arose as to the meaning of the term “unamortized book value.” The tenant did not exercise its option to renew the lease, and yet it refused to vacate the premises while the parties’ dispute remained unresolved. In February 2004 the landlord served the tenant with a notice óf default, demanding that the tenant vacate the premises. When the tenant failed to do so, the landlord commenced successive holdover proceedings against the tenant in the Justice Court of the Town of Yorktown, which resulted in an order directing the tenant to surrender, the premises. When the tenant failed to do so, the Justice Court issued a judgment of possession in favor of the landlord and a warrant of eviction. Meanwhile, the tenant commenced this action against the landlord in the Supreme Court, Westchester County, asserting two causes of action. The first cause of action sought a judgment declaring that the tenant was entitled to “the actual cost of its improvements on the Premises without regard to amortization or depreciation tables . . . and that [the tenant] may remain in possession of the Premises . . . until such agreement is reached.” The second cause of action sought damages for breach of contract, based on the landlord’s refusal to pay the tenant for the improvements to the premises. The Supreme Court granted that branch of the landlord’s motion which was for summary judgment. The tenant appeals. We affirm. Where the terms of a contract are clear and unambiguous, the contract must be enforced according to its terms (see Reiss v Financial Performance Corp., 97 NY2d 195, 198 [2001]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). This principle is especially important “in the context of real property transactions, where commercial certainty is a paramount concern, and where . . . the instrument was negotiated between sophisticated, counseled business people negotiating at arm’s length” *747(Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004] [internal quotation marks omitted]; see Matter of Wallace v 600 Partners Co., 86 NY2d 543, 548 [1995]; W.W.W. Assoc. v Giancontieri, supra at 162). Contrary to the tenant’s contention, the plain language of article XVIII of the lease required it to surrender the subject premises to the landlord upon the expiration of the lease term, regardless of whether the parties had agreed upon the method of calculating the amount the tenant was to be paid for its improvements to the premises. The lease clearly indicated that such surrender was a condition precedent to the landlord’s purchase of the improvements. Assuming that, as the tenant contends, a valid month-to-month tenancy arose after the expiration of the 20-year lease term, the fact remains that the tenant never surrendered the premises to the landlord. The issuance of the warrant of eviction terminated any existing tenancy and annulled the landlord-tenant relationship by operation of law (see RPAPL 749 [3]; Galapo v Feinberg, 266 AD2d 150, 151 [1999]), without the surrender contemplated by the lease having occurred. Accordingly, the landlord’s obligation to pay the tenant for the improvements to the premises was never triggered, since the condition precedent to that obligation never was (and now cannot be) satisfied by the tenant. Thus, the landlord made a prima facie showing that the tenant was not entitled to remain in possession of the premises until the parties agreed on the amount to be paid to the tenant for the improvements, that the tenant was not entitled to be paid for the improvements in accordance with its proposed method of calculation (or otherwise), and that the landlord did not breach the agreement by refusing to pay the tenant for the improvements. In opposition, the tenant failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the landlord’s motion which was for summary judgment. Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Westchester County, for the entry of an appropriate judgment (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Prudenti, EJ., Krausman, Dillon and McCarthy, JJ., concur.

Appeal by one of two employers and its insurance carrier from a decision and award of the Workmen’s Compensation Board whereby appellant employer was held solely liable for claimant’s disability due to rupture of an intervertebral disc. Appellants concede liability for one half of the award. Claimant worked for respondent employer for many years and until October, 1955, in which month he went to work for appellant employer. It is not dis*544puted that in November, 1956 he sustained an industrial accident while lifting an automatic washing machine, feeling his back “ snap ” as injury occurred. This injury, alone or jointly with either an accidental injury sustained in the prior employment or with a then existing back condition of nonindustrial origin, caused disability and required surgical removal of the affected disc. These three theories of causation present the problem before us. Claimant’s attending physician at various times reported, and upon the hearing testified to, a history given by claimant of hurting his back while lifting during the prior employment (it appearing on the hearing that the date was in 1954), and of two or three attacks thereafter (apparently during the same employment) “ brought on by lifting on the job”. Claimant’s surgeon in a report which he verified in his testimony said that he obtained from claimant a history of the first back incident in the prior employment as a spontaneous onset of pain and, about once a year thereafter the experience of a snap and pain in the lower back, “ associated with lifting maneuvers ” in the prior employment, followed in several days by pain in the left sciatic distribution. In the course of a colloquy at a hearing prior to that at which he was sworn, claimant denied giving his physician the history which the latter reported, adding that the doctor “ must have mis-heard ”. He did not comment upon or testify in regard to the history recorded by his surgeon. Claimant testified that he did not recall the “ cause ” or circumstances of the first or 1954 back incident but that he received heat therapy and was X-rayed under the direction of the plant physician. The latter testified from his notes, reading: “ This onset of trouble is not related to his work by his admission and objectively is non-occupational ”. Claimant said that his pain continued for about four months or longer, during which period he received chiropractic treatment “ many times ”. He testified that this “ one episode of back pain ” was the only one which occurred during the prior employment. Claimant’s attending physician reported his opinion that the herniated disc “ was the result of lifting maneuvers ” in each employment and testified, after admitting various possibilities: “My personal feeling is that something did exist prior to November 1956, and that that something was aggravated by the injury which produced a snapping or popping in the back ”, Claimant’s surgeon testified to an opinion that claimant had degenerative disc disease prior to the 1954 episode; that the incidents of lifting accelerated the symptoms and precipitated them from time to time, later emphasizing that “ they precipitated his symptoms, not the disc condition ”; that his disability is related to all the incidents; that if “there was no other known accident outside of the accident of November 2nd, 1956 * * * that was a competent aggravating factor in the herniated lumbar disc ”. Upon this evidence it was determined: “ The Board finds that claimant’s present disability is due to the November, 1956 accident * * * as we conclude that the bach condition prior to November, 1956 was of non-occupational origin.” (Emphasis supplied.) The decision states a non sequitur. The finding is, in effect, that no accident occurred in the prior employment and such a finding was warranted, upon acceptance of claimant’s testimony and that of the plant physician. While, therefore, respondent employer was by that finding properly relieved of liability, it does not necessarily follow that appellants are liable for the entire award, absent some additional fact. If the November, 1956 accident and the pre-existing condition were concurrent causes of the disability and each contributed to the necessity for the operation and the other medical expenses, appellant carrier’s liability would be reduced in the proportion that causation should properly be assigned to the pre-existing condition (Matter of Engle v. Niagara Mohawk Power Corp., 6 N Y 2d 449); but if the prior condition was not such a cause and the effect óf the industrial accident was merely to aggravate the underlying condition then under *545“ the settled rule of the cases * * * the employer is liable for the full consequences ” (Matter of Engle v. Niagara Mohawk Power Corp., supra, pp. 452-453). It seems not impossible that support for a finding of concurrent causation could be found in the medical evidence but, on the other hand, the doctors from whom this medical evidence was adduced also testified quite forcefully to aggravation. The board should, of course, have determined these issues and have thereupon included in its decision “a statement of the facts which formed the basis of its action”. (Workmen’s Compensation Law, § 23.) Remittal is therefore necessary. The procedural objection raised in the Attorney-General’s brief does not impress us as substantial as it is perfectly clear that the basic issue presented by appellants on their application to the board, and the only one that concerned them, was that of their liability for but one half of the award. Decision and award reversed, with one bill of costs to appellants employer and carrier and respondent employer against the Workmen’s Compensation Board and case remitted to the Workmen’s Compensation Board for further proceedings not inconsistent herewith.

Appeal from an order denying a motion for a writ of error coram nobis. The basis for the writ alleged that the indictment did not bear the signature of the foreman of the Grand Jury. Prom the record it appears that on the application for the writ the court assigned counsel to represent the petitioner and, after hearing him and the District Attorney, denied the application, which included a request that the petitioner be present in person. It would appear that at the hearing on the application mentioned above, a certified copy of the indictment was offered which showed the required signature. Ordinarily such proceedings take place after granting a motion and the assignment of counsel and whether the prisoner should be present is a discretionary matter with the court. In any event, the matter sought to be reviewed was not the proper subject for comm nobis. (People v. Fortson, 7 A D 2d 139.) The petitioner after being convicted appealed to this court (282 App. Div. 982) which affirmed the jury verdict and determined that the petitioner herein had a fair trial. The alleged errors were all apparent on the face of the record and we assume were the subject, at least in part, of his original appeal to this court. The relief sought is not the basis for a writ of error coram nobis. (People v. Sullivan, 3 N Y 2d 196, 198.) Order unanimously affirmed.

*748In an action to recover damages for personal injuries, the defendant Pritchard Industries, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J), dated March 1, 2006, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it, and granted that branch of the motion of the defendants Rockefeller Group International, Inc., and Rock-Green, Inc., which was for summary judgment on the issue of liability in connection with the defendant Rock-Green, Inc.’s fourth cross claim against the defendant Pritchard Industries, Inc., and the defendants Rockefeller Group International, Inc., and Rock-Green, Inc., cross-appeal, as limited by their brief, from so much of the same order as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against the defendant Rock-Green, Inc., and a cross claim of the defendant Pritchard Industries, Inc., insofar as asserted against the defendant Rock-Green, Inc., and for summary judgment on the issue of liability in connection with the defendant Rock-Green, Inc.’s third cross claim against the defendant Pritchard Industries, Inc. Ordered that the order is reversed insofar as appealed and cross-appealed from, on the law, one bill of costs is awarded to the defendants appearing separately and filing separate briefs, payable by the plaintiff, the cross motion is granted, those branches of the motion of the defendants Rockefeller Group International, Inc., and Rock-Green, Inc., which were for summary judgment dismissing the complaint and the cross claim insofar as asserted against the defendant Rock-Green, Inc., and for summary judgment on the issue of liability in connection with the defendant Rock-Green, Inc.’s third cross claim against the defendant Pritchard Industries, Inc., are granted, that branch of the motion which was for summary judgment on the issue of liability in connection with the defendant Rock-Green, *749Inc.’s fourth cross claim against the defendant Pritchard Industries, Inc., is denied, the complaint is dismissed insofar as asserted against the defendants Pritchard Industries, Inc., and Rock-Green, Inc., the cross claim against the defendant Rock-Green, Inc. is dismissed, the first, second, and fourth cross claims against the defendant Pritchard Industries, Inc., are dismissed, and the third cross claim by the defendant Rock-Green, Inc., against the defendant Pritchard Industries, Inc., is severed. The plaintiff allegedly was injured when she slipped and fell on a wet portion of the lobby floor of the building where she worked, which was owned by the defendant Rock-Green, Inc. (hereinafter Rock). The defendant Pritchard Industries, Inc. (hereinafter Pritchard), was hired by Rock, inter alia, to maintain the lobby area. At her deposition, the plaintiff testified that it had started raining on the day of the accident sometime during her 40-minute commute to work. Although the plaintiff did not observe any wetness on the lobby floor either before or after the accident, she claimed that the floor must have been wet because her clothes were wet after the fall. The plaintiff further claimed that, at the time of the accident, there were rain mats on the lobby floor in front of other entrances, but none in front of the revolving door through which she entered. Contrary to the plaintiffs contention, Rock and Pritchard established their prima facie entitlement to judgment as a matter of law by establishing that they did not create the alleged wet condition on the lobby floor, and had no obligation “to provide a constant remedy to the problem of water being tracked into [the lobby] in rainy weather” (Ruck v Levittown Norse Assoc., LLC, 27 AD3d 444, 445 [2006]; see Miller v Gimbel Bros., 262 NY 107, 108-109 [1933]; Ford v Citibank, N.A., 11 AD3d 508, 509 [2004]; Yearwood v Cushman & Wakefield, 294 AD2d 568, 568-569 [2002]; Negron v St. Patrick’s Nursing Home, 248 AD2d 687 [1998]), particularly where, as here, the record establishes that the rain started only a short time before the accident occurred. In opposition, the plaintiff failed to raise a triable issue of fact. The mere fact that the plaintiffs clothes were wet after the fall is insufficient to raise a triable issue of fact as to the liability of Rock or Pritchard for the alleged dangerous condition (see Kuchman v Olympia & York, USA, 238 AD2d 381, 382 [1997]), particularly in view of the plaintiff’s own testimony that she never actually observed any wetness in the area where she fell, and in the absence of any evidence as to the length of time any alleged wet condition existed on the lobby floor or the *750existence of any prior complaints (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Ford v Citibank, N.A., 11 AD3d 508 [2004], supra; Yearwood v Cushman & Wakefield, supra, at 568-569; McDuffie v Fleet Fin. Group, 269 AD2d 575 [2000]). A general awareness that water was likely to be tracked on the lobby floor in rainy weather is insufficient, without more, to establish constructive notice of the particular wet condition that allegedly caused the plaintiff to slip (see Yearwood v Cushman & Wakefield, supra at 569). Similarly unavailing, on the facts presented, is the plaintiffs claim that Rock and/or Pritchard were negligent in failing to place rain mats in the area where the plaintiff fell (see Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511, 512; Solazzo v New York City Tr. Auth., 21 AD3d 735, 736-737 [2005], affd 6 NY3d 734 [2005]; Izrailova v Rego Realty, 309 AD2d 902 [2003]; Keum Choi v Olympia & York Water St. Co., 278 AD2d 106 [2000]; cf. Edwards v 727 Throgs Neck Expressway, Inc., 24 AD3d 290 [2005]). Accordingly, the complaint should have been dismissed insofar as asserted against Rock and Pritchard. Moreover, in light of the dismissal of the complaint as to all of the defendants, Pritchard’s cross claim against Rock, as well as the first and second cross claims asserted by Rock and the defendant Rockefeller Group International, Inc. (hereinafter RGI), against Pritchard, which sound in common-law indemnification and contribution, should also have been dismissed as academic. The Supreme Court also erred in granting that branch of the motion of Rock and RGI which was for summary judgment on the issue of liability in connection with Rock’s fourth cross claim against Pritchard, seeking damages based on Pritchard’s alleged failure to procure insurance coverage naming Rock as an additional insured. Pursuant to the terms of the services purchase agreement entered into between Rock and Pritchard, the latter was obligated, inter alia, to “procure and maintain . . . Comprehensive General Liability insurance” in the amounts specified by Rock but “in no event less than $3,000,000 in respect of injuries to or death of any one person.” Contrary to Rock’s contentions, there is nothing in the agreement requiring Pritchard to procure insurance policies naming Rock and/or RGI as additional insureds. Pritchard was required only to procure and maintain insurance in the amounts indicated in the agreement. Therefore, Rock was not entitled to judgment as a matter of law on the fourth cross claim (see Ayotte v Gervasio, 81 NY2d 1062 [1993]) and, in light of our determination, the fourth cross claim should also have been dismissed as academic. Finally, the Supreme Court erred in denying that branch of *751the motion by Rock and RGI which was for summary judgment on the issue of liability in connection with Rock’s third cross claim against Pritchard, seeking contractual indemnification. Rock tendered prima facie evidence that the indemnification provision at issue entitled it to indemnification for the costs it incurred in defending the main action (see Bashant v Mid-Westchester Realty Assoc., LLC, 31 AD3d 680 [2006]; DiPerna v American Broadcasting Cos., 200 AD2d 267, 269-270 [1994]) and Pritchard, in opposition, failed to raise a triable issue of fact. Moreover, contrary to Pritchard’s contention, the prohibition against indemnifying a party for its own negligence pursuant to General Obligations Law § 5-322.1 does not apply where, as here, the party seeking indemnification is found to be free of any negligence (see Davis v All State Assoc., 23 AD3d 607, 608 [2005]; Alesius v Good Samaritan Hosp. Med. & Dialysis Ctr., 23 AD3d 508 [2005]). Crane, J.E, Florio, Fisher and Dickerson, JJ., concur.

The plaintiff appeals from a nonsuit and dismissal of the complaint made at the close of his ease. The complaint of the plaintiff alleged that the defendants had a joint interest in the maintenance and operation of the filling station here involved and further alleged it was operated by them in a negligent and improper manner, particularly in that an air compressor in the filling station was maintained without adequate, proper or reasonable notices, warnings, instructions or supervision pertaining to operation of inherently dangerous equipment, as the result of which plaintiff sustained serious personal injuries. The answer of the Socony Mobil Oil Co., Inc., denied the allegations of the complaint and pursuant to section 286 of the Civil Practice Act interpleaded against the tenant defendant Mojzis, contending that under the terms of the lease the tenant was in complete and exclusive control of the premises and praying that in the event of a judgment against Socony, judgment over be granted against the tenant. The tenant in his answer referred to the complaint of the plaintiff, particularly the allegation that the equipment was inherently dangerous and which disclosure he alleged was not made known to him by Socony and upon the further grounds that under the terms of the lease Socony was to keep the equipment in repair. The proof was undisputed that Socony was the owner of the station where the accident happened and it was occupied by the tenant Peter Mojzis under a written lease which included as part of the personal property an air compressor with one outlet inside the building and a standard outlet with pressure gauge outside the building and which was used primarily by the public for inflating tires on automobiles. It was further shown that as part of the service to its filling station operators, Socony distributed pamphlets which gave instructions and advice about the use, among other things, of the air compressor and which contained instructions that if the operators experienced any trouble with the compressor equipment, they were to notify the company. The plaintiff testified that on the morning of December 18, 1954, he came to the service station here involved with a flat tire taken from his mother’s automobile to have it repaired. He was advised by the defendant tenant that they were too busy to do the work and plaintiff requested permission to make the repairs himself. It was further shown that the father of the plaintiff worked for a tire concern and his duties were to recap, mount, dismount, vulcanize and change all types of tires and from which it might be assumed the plaintiff had some general knowledge of such type of work. He further testified that the defendant tenant informed him he could use the tools and fix the tire and thereafter left to go on an errand. One of his employees was present and *546working inside the station when the accident happened but he testified he did not see what caused the accident and was first attracted by the explosion. The plaintiff testified that in the course of repairing the tire he took it off the rim, removed the old tube and replaced it with another which he had brought with him, put the tire back on the rim and that he used the air outlet inside the building to put air into the tube and thereafter allowed it to become partly deflated by letting the air out which he testified was necessary to remove the “ wrinkles ”. The last thing he remembers was putting air into the tire tube. It was undisputed that this air hose equipment did not have an air gauge attached to it so that the amount of air pressure would not be recorded. It was testified, however, that there was such a gauge in close proximity to the hose which could be used. The rest of the testimony was somewhat cumulative but shed no further light on the happening of this particular accident, including the testimony of the consulting engineer. The plaintiff, appealing from a nonsuit and dismissal of the complaint, is entitled on this appeal to the benefit of any and all evidence, direct and circumstantial, and any fair inferences which might be deduced therefrom to show negligence on the part of the defendant Socony, the order having been made in its favor. The plaintiff contended that the defendant having reserved the control and right to inspection was thereby liable to a third party under the circumstances herein. Assuming, without conceding that to he the rule under certain circumstances, there was no evidence in this record of any failure on the part of the defendant Socony. The plaintiff himself admitted that the hose he was using was in good condition and that there was “ nothing the matter with the equipment ”. The testimony showed that the primary purpose of the air hose inside the building, and which was being used by the plaintiff, was for such work as operating a ear lift, cleaning spark plugs, motors and other equipment and was not recommended nor ordinarily used for inflating tires; that the air hose outside the building and which was equipped with an air gauge was for that purpose, We are unable to find or assume under the testimony herein that the defendant Socony had the duty and responsibility to foresee such an eventuality as took place herein. There was no showing that it was the customary practice of the tenant to allow the use of the air hose by customers and there was no showing of any act which would constitute negligence by the defendant Socony or that the air hose outlet here involved was an inherently dangerous piece of equipment. In the appellant’s brief for the first time it is argued that the facts herein establish a prima facie case of negligence and that the doctrine of res ipsa loquitw is applicable. There was no showing from the testimony at the trial of such ownership or exclusive control as was necessary for application of this doctrine. The defendant Soeony’s duty was limited to occasional inspection visits and the making of repairs upon notice from the tenant. The plaintiff testified there was no defect in the equipment and that it was in good repair. Por all practical purposes the filling station was under the control and operation of the tenant. The facts herein do not warrant finding that the defendant Socony was in a position superior to that of the plaintiff to explain what went wrong on this particular occasion. (Koch v. Otis Elevator Co., 10 A D 2d 464, 466.) After a reading of the record the only inference that can he drawn therefrom is that this unfortunate accident was caused by the acts of the plaintiff in using the air hose. There was a failure to show negligence on the part of the defendant Socony and the dismissal of the complaint was justified. Judgment unanimously affirmed, without costs.

In an action, inter alia, to recover damages for malicious prosecution, the defendant Comp USA, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Weiner, J.), dated March 30, 2006, as, in effect, denied those branches of their motion which were to dismiss the causes of action alleging malicious prosecution, defamation, and false arrest. Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion which were to dismiss the causes of action alleging malicious prosecution, defamation, and false arrest are granted. As the plaintiffs conceded at oral argument, the causes of action alleging defamation and false arrest were interposed after the expiration of the applicable one-year statute of limitations (see CPLR 215 [3]; Bonanno v City of Rye, 280 AD2d 630 [2001]; Losco Group v Yonkers Residential Ctr., 276 AD2d 532, 533 [2000]). Accordingly, those causes of action should have been dismissed. The tort of malicious prosecution has four elements: (1) commencement of a criminal proceeding, which (2) terminated in *752favor of the accused, and which (3) lacked probable cause, and (4) was brought out of actual malice (see Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; Cantalino v Danner, 96 NY2d 391, 394-395 [2001]). The record contains a Justice Court certificate of disposition dated March 10, 2004, which indicates that on March 5, 2004 certain criminal charges brought against the plaintiff Ruben Roman were dismissed. The one-year statute of limitations applicable to a cause of action for malicious prosecution (see CPLR 215 [3]; Syllman v Nissan, 18 AD3d 221, 222 [2005]) does not begin to run until favorable termination of the underlying criminal proceeding (see Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; Roche v Village of Tarrytown, 309 AD2d 842, 843 [2003]). This action was commenced in September 2005. Assuming the March 2004 disposition was a “favorable” termination of the criminal proceeding (see Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]), this cause of action was untimely as well. In an effort to avoid the statute of limitations on the malicious prosecution cause of action, in their brief on appeal, the plaintiffs state that it is “not clear if the [pertinent accusatory instrument] has been dismissed in its entirety.” If that is the case, then an essential element of the tort of malicious prosecution (termination of the underlying criminal proceeding) is absent, and the cause of action should be dismissed for that reason. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was to dismiss the cause of action alleging malicious prosecution. The plaintiffs’ remaining contentions are without merit. Miller, J.P, Spolzino, Goldstein and McCarthy, JJ., concur.

Appeal by the employer and its carrier from a decision and award of the Workmen’s Compensation Board, The claimant was working *547as a carpenter on June 24, 1957 when a saw which he was using kicked back, making a 4%-inch laceration in his left thigh and causing him to fall backwards on his left hip and back. An operation was performed on the laceration and the claimant was discharged from the hospital on June 28, 1957. Dr. Maglio testified that the claimant returned to work on July 15 for financial reasons although he remained under his care. Dr. Maglio stated that the claimant was experiencing pain in his “ left thigh proximal to the healed laceration and from patella to the inner aspect of groin and left hip.” The claimant worked until he could no longer stand the pain and he was hospitalized on September 19, 1957. He was then examined by Dr. Hare on September 20 and his report shows the claimant experiencing pain in the hip and groin but this history was obtained from Dr. Maglio. The claimant was discharged from the hospital and thereafter referred to Dr. Nickerson who examined him on October 3 and found him complaining of persistent pain from the hip to the knee but no pain in the back. Dr. Nickerson thereafter performed myelographic studies, determined that the claimant had a herniated disc and performed an operation which confirmed the diagnosis. Dr. Hare again saw the claimant in the hospital after his operation and this time obtained a history from the claimant through an interpreter which indicated he had experienced pain in his back radiating down his left leg from the time of the accident. Dr. Hare’s report also indicated that upon reviewing the hospital records the history there showed the claimant experiencing back pain since the accident. Dr. Wingebach who examined the claimant on October 10, 1957 with an interpreter present stated the history he got showed the back pain beginning for the first time five weeks prior to his examination. The claimant’s testimony is not clear because it was taken through an interpreter. He stated that he struck his back when he fell, which was confirmed by a coemployee, and further that he had pain in his back from the beginning and that he had told Dr. Maglio about it. Dr. Maglio had received no history of back pain and he was not questioned as to causal relationship. Dr. Nickerson stated there was causal relationship between the accident and the herniated disc, this happening when he fell backward twisting his back. He stated that leg pain is a symptom of a herniated disc and that back pain does not necessarily have to be present. Dr. Wingebach testified that there was no causal relationship because of the lapse in time between the accident and the complaints of pain in the back radiating down the leg but he stated if such pain had occurred right after the accident his opinion would be different. Dr. Hare testified that assuming the history of back pain radiating down the leg which he got from the claimant and which appeared in the hospital records that there was causal relationship but that if such complaints did not appear until some time after the accident there was no causal relationship. The Referee found causal relationship and the board affirmed stating that medical opinion was in agreement that if the symptoms appeared early enough the disc was caused by the accident. The appellants contend that there is no evidence indicating that the symptoms occurred at the time of the accident and that therefore the award cannot be upheld. Although the record is confusing as to just when the symptoms of back pain radiating into the leg first occurred it would appear that there is sufficient evidence indicating they appeared right after the accident so that the board could so find. Although the claimant’s attending physician and others received only complaints of pain in the leg originally this can be explained in several ways. One is the language difficulty since the claimant needed an interpreter to be understood. Another could be that his pain in his leg was so great or the pain was so generalized that he might not have been aware of at times the pain in his back. There is evidence indicating that such symptoms were present such as the claimant’s own testimony, the history received by Dr. *548Hare and the history taken by an intern and appearing in the hospital records. There is further here the fact that Dr. Nickerson apparently testified that hack pain would not necessarily have had to appear particularly in view of the consistent pain in the leg. It would therefore appear that the board’s decision is supported by substantial evidence. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Appeal by a self-insured employer from an award for reduced earnings. Claimant was employed by the employer as an outside and inside salesman of plumbing and heating supplies for about three months prior to his accident. He was paid a base weekly salary of $55 plus commissions. His average weekly earnings during this period amounted to $105.44. On July 13, 1956, he injured his back in the employment. He returned to work for another employer on October 17, 1956, and stopped working (the reason not appearing) in December, earning a total of $650. He went to work for still another employer in August, 1957, on a part-time basis, earning $3.50 per hour. The record adequately sustains the factual determination that claimant suffered from a causally related partial disability after his return to work, and that he was unable to do heavy lifting or pushing. However, the board has determined that claimant’s actual earnings subsequent to the accident represent his earning capacity, without proof that any impairment of claimant’s earnings was due to his disability. We find no proof as to why claimant’s first employment subsequent to the accident was terminated; why he was unemployed for a time, or why he worked only part time on his second employment subsequent to the accident. It does not appear that any heavy lifting or pushing was required in either employment. In fact, the record is silent as to the nature of the work. Moreover, we think the board employed an unrealistic method in arriving at claimant’s average weekly wage before the accident. It does not appear (although there was ample opportunity for either party to offer evidence on the subject) that claimant worked for substantially the whole year prior to his injury in the employment in which he was working at the time of injury, either for the same or a different employer. It only appears that claimant worked for this employer for three months. Therefore, the board was justified in declining to base his average weekly wage solely on his own earnings, under subdivision 1 of section 14 of the Workmen’s Compensation Law. The board apparently used subdivision 2 of section 14 and took the average wage of three outside-inside salesmen to arrive at an average weekly wage of $182 for claimant, although his actual earnings averaged $105.44 weekly. The annual earnings of the three “ similar ” employees were $12,387, $9,250 and $6,753, respectively. In the first place, subdivision 2 of section 14 does not authorize using an average of several employees, but calls for the use of “ an employee ” in similar employment. That feature may not be crucial, but we do not think subdivision 2 was intended to be used in the case of salesmen whose income is largely dependent upon commissions and varies so drastically. It would seem quite apparent that the commissions earned by a salesman of nine years’ experience in the same line would not offer a fair comparison with the earnings of a much less-experienced salesman. Acquaintance, the development of sales methods, the hours, aggressiveness and ingenuity of the individual play such an important part that no fair comparison may be made. The very disparity in the incomes of the three employees used here demonstrates that the income of one individual from commissions offers no accurate method of determining the income of another, and does not reasonably represent the annual earning capacity of an injured employee. While no hard and fast rule may be laid down as to all cases, we think this record requires a determina*549tion that neither of the methods provided for in subdivisions 1 and 2 can “ fairly and reasonably be applied ”, and all of the factors provided for in subdivision 3 should be given consideration, including the actual earnings of claimant, in arriving at a figure which “shall reasonably represent the annual earning capacity of the injured employee.” (Matter of Sorenson v. Queensboro Corp., 249 App. Div. 359; Matter of Birch v. Budd, 256 App. Div. 53.) Award reversed, with costs to appellant against the Workmen’s Compensation Board, and the matter remitted to the board.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated October 25, 2005, as granted the motion of the defendant Dutchess County Agricultural Society, Inc., for summary judgment dismissing the complaint insofar as asserted against it, and granted that branch of the motion of the defendant Century Decorations, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is modified, on the law, by deleting the *753provision thereof granting the motion of Dutchess County Agricultural Society, Inc., for summary judgment dismissing the complaint insofar as asserted against it and substituting therefor a provision denying that motion; as so modified, the order is affirmed insofar as appealed from, without costs and disbursements. “A defendant who moves for summary judgment in a slip- and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” (Yioves v T.J. Maxx, Inc., 29 AD3d 572 [2006]; see Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436 [2005]; Joachim v 1824 Church Ave., Inc., 12 AD3d 409, 410 [2004]; Stumacher v Waldbaum, Inc., 274 AD2d 572 [2000]). Only after the movant has satisfied this threshold burden will the court examine the sufficiency of the plaintiffs opposition (see Britto v Great Atl. & Pac. Tea Co., Inc., supra; Joachim v 1824 Church Ave., Inc., supra). The defendant Dutchess County Agricultural Society, Inc. (hereinafter Dutchess), failed to make a prima facie demonstration that it had no actual or constructive notice of the condition (see Jean-Pierre v Touro Coll., 23 AD3d 524 [2005]). Accordingly, the Supreme Court should have denied the defendant Dutchess’s motion for summary judgment dismissing the complaint insofar as asserted against it. The defendant Century Decorations, Inc. (hereinafter Century), established, as a matter of law, that it neither created nor had actual or constructive notice of any dangerous condition that allegedly caused the plaintiffs injuries (see Piacquadio v Recine Realty Corp., 84 NY2d 967 [1994]). The plaintiffs’ vague and conclusory deposition testimony failed to raise a triable issue of fact as to whether the stairs were defectively constructed (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Accordingly, the Supreme Court properly granted summary judgment dismissing the complaint insofar as asserted against Century. Crane, J.E, Goldstein, Lifson and Garni, JJ., concur.

Defendant appeals from a judgment of conviction of burglary, third degree, alleged to have taken place in the Town of Hunter, County of Greene on or about the 2d day of April, 1957 upon certain premises owned by Edward C. Delafield. He was found not guilty of grand larceny, first degree. The facts concerning the crime of burglary were sufficiently estab*550listed at the trial. The defendant became involved when he was found on the property late at night on April 11, 1957 by law-enforcing officers. After questioning he signed a written confession as to the crime for which he was convicted and which statement also included admissions of breaking and entering other premises in the county. The alleged error on which the defendant relies was the introduction of the written confession in evidence and which related to other alleged crimes aside from the one for which he was being tried and which was claimed to be prejudicial and constituted reversible error. The confession was received in evidence after the court had overruled an objection to its admission made by the attorney for the defendant but which was not germane to the issue raised herein. The District Attorney then started to read the confession to the jury and after some time came to a part which read “ Q. Were you in any other places up in Onteora Park?”, to which without objection he answered in the affirmative. After some further questions and answers concerning other matters, the attorney for the defendant objected to any testimony not relating to the crime for which he was being tried and which objection was sustained by the court with instructions to the jury to disregard any testimony “ relating to any other premises or any other actions ” not on trial. No further irrelevant part of the confession was read by the District Attorney and no other motions as to this facet of the case were made on behalf of the defendant. The jury did not see or read the alleged confession. We do not consider from the facts herein that the alleged error was of such a substantial nature as to grant a new trial. The confession was in question and answer form and when the objection was raised, the District Attorney immediately refrained from reading any other irrelevant parts and the court properly instructed the jury to disregard the testimony. Further mention was made in Ms charge to the jury that they were to consider only the testimony relating to the crime for which he was being tried. It has long been the established rule that a confession, relevant and competent as to the crime charged, is not rendered inadmissible because it also relates to other crimes. (People v. Loomis, 178 N. Y. 400, 405.) We do not have here the admission of an examination of a police officer and in which there was no admission or confession of the crime and it could only be used for the purpose of attempting to prejudice the jury (People v. Infantino, 224 App. Div. 193), nor do we have the creation of an atmosphere of prejudice throughout the trial such as was found in People v. Carborano (301 N. Y. 38). Here, the nature of the proof adduced, claimed to be prejudicial, was in a very limited zone, the objection to it was sustained by the court with instructions to the jury to disregard it and was not of such a substantial nature as to be prejudicial. There were no other motions made by the defendant as to this phase of the case. From a reading of the record the conclusion is inescapable that the defendant had a fair and impartial trial and that the resultant verdict was proper. Judgment of conviction unanimously affirmed.

Appeal by an employer and its insurance carrier from a decision and award of the Workmen’s Compensation Board made on the basis of reduced earnings for continuing partial disability from March 15, 1955 due to a myocardial infarction sustained October 30, 1952, the carrier having paid awards for the period prior to March 15, 1955 and asserting here that there is no substantial evidence of any causally related disability after that date. Appellants seem to attach compelling weight to the fact that claimant’s cardiologist, who testified to continuing disability, did not examine claimant from a time prior to the March 15, 1955 award date until some 26 months after it, and to the fact that hospital records indicated that claimant went through a prostatectomy without cardiac symptoms or medication; but the weight and significance of this evidence was in each case for the board. The evidence supporting the award seems to us substantial. Dr. Bernstein in his 1952 and 1953 reports expressed his opinion that a permanent defect and permanent partial disability existed and on July 20, 1954 testified to permanent partial disability. (Cf. Matter of Matthews v. Inter-Chemical Corp., 5 A D 2d 914.) Dr. Boas on November 16, 1954 testified to permanent heart damage. Dr. Rothman, who had examined claimant prior to March 15, 1955 examined him again on May 10, 1957 (and examined and prescribed for him on May 23, 1957 after a heart episode intervening those dates). Upon the May 10 examination he found that the condition resulting from the 1952 infarction was permanent, progressive and disabling. He testified on September 19, 1957, that in his opinion claimant was disabled in March, 1955 and continued to be disabled, basing his opinion on “ the normal course of events in these eases * * * the average course of events, plus the observations * * * made on May 8, 1957 and May 23, 1957 ”. Appellants’ experts attributed disability to an underlying sclerotic condition (one of them assigning “ most of the disability ” to that disease and “ slight disability ” to the heart attack) and both stated that claimant could resume his work in the management of an apartment house, although his duties included making repairs and climbing flights of stairs. Each expert did, however, concede some limitation on his ability to work. Claimant said that he had not worked since 1955. Appellants cite Matter of Galvin v. Bethlehem Steel Co. (9 A D 2d 564) in support of their position but in that case there was no medical evidence of any continuing disability nor, indeed, any medical or other evidence from which such might be inferred, and the point of the decision was the holding that no legal presumption of continuing disability exists. In this ease no such theory is asserted. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

*754In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated July 14, 2005, as denied their motion for summary judgment dismissing the complaint, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied their cross motion for summary judgment on so much of their first cause of action as alleged a violation of Labor Law § 240 (1). Ordered that the order is modified, on the law, by deleting the provision thereof denying those branches of the defendants’ motion which were to dismiss so much of the first cause of action as alleged a violation of Labor Law § 200 and common-law negligence, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements. The plaintiff Ramlochan Seepersaud (hereinafter the injured plaintiff) allegedly was injured when, after inspecting work that had been performed on a bulkhead roof that was raised 10 to 12 feet above the main roof, he fell when he placed his left foot on a ladder in order to descend to the main roof, and his right foot became caught in a gutter adjacent to the ladder. The defendants established their entitlement to judgment as a matter of law with respect to so much of the plaintiffs’ first cause of action as alleged a violation of Labor Law § 240 (1) on the basis of the plaintiffs’ admission that the ladder was not defective (see generally Blake v Neighborhood Hous. Servs. of NY. City, 1 NY3d 280 [2003]). In opposition, the plaintiffs raised a triable issue of fact by demonstrating the placement of the ladder in proximity to the rain gutter, and the absence of any device protecting a worker descending the ladder from tripping on the gutter (see Cunningham v Alexander’s King Plaza, LLC, 22 AD3d 703, 706 [2005]; Karapati v K.J. Rocchio, Inc., 12 AD3d 413, 415 [2004]). However, since the plaintiffs did not establish in support of their cross motion for summary judgment that in these circumstances the ladder did not provide proper protec*755tion, the cross motion was properly denied (see Taglioni v Harbor Cove Assoc., 308 AD2d 441, 442 [2003]; Chan v Bed Bath & Beyond, 284 AD2d 290 [2001]) without regard to the sufficiency of the defendants’ response (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The Supreme Court correctly denied that branch of the defendants’ motion which was for summary judgment dismissing so much of the first cause of action as alleged a violation of Labor Law § 241 (6) predicated upon a violation of 12 NYCRR 23-1.7 (f), since the defendants failed to establish that the roof upon which the injured plaintiff was working was not accessible by alternate means such as stairways, ramps, runways, ladders, or other safe means of access (see Gonzalez v Pon Lin Realty Corp., 34 AD3d 638 [2006]; Sponholz v Benderson Prop. Dev., 273 AD2d 791, 792 [2000]). The Supreme Court erred, however, in denying those branches of the defendants’ motion which were for summary judgment dismissing so much of the first cause of action as alleged a violation of Labor Law § 200 and common-law negligence. Essential to liability pursuant to Labor Law § 200 is the defendants’ ability to control or supervise the plaintiff’s work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Lombardi v Stout, 80 NY2d 290, 295 [1992]), or actual or constructive notice of the dangerous condition (see Brown v Brause Plaza, LLC, 19 AD3d 626, 628 [2005]; DeBlase v Herbert Constr. Co., 5 AD3d 624 [2004]; Yong Ju Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2000]). Here, there is no claim that the defendants exercised any control or supervision over the injured plaintiffs work, and the defendants demonstrated in support of the motion that they had no notice, actual or constructive, of the placement of the ladder in close proximity to the gutter, which is the alleged dangerous condition at issue. In opposition, the plaintiffs failed to raise a triable issue of fact. Miller, J.P., Spolzino, Goldstein and McCarthy, JJ., concur.

Appeal by the relator from an order of the Supreme Court, Clinton County, which dismissed a writ of habeas corpus. The relator was indicted in March, 1955 for violation of the Public Health Law with respect to narcotic drugs. During the course of his trial thereon in June, 1955 a mistrial was declared on the motion of relator’s counsel. Thereafter on November 3, 1955 a motion for the dismissal of the indictment was granted with permission to submit the matter to another Grand Jury. An order dismissing the indictment was thereafter signed on November 14, 1955. In the meantime the Grand Jury returned another indictment charging relator with the same crime as did the first. The relator was tried, convicted and sentenced under this second indictment. The petition *551for the present writ of habeas corpus was based on the allegation of double jeopardy. On the return date the Attorney-General was granted time in which to produce the decision granting permission to resubmit the relator’s case to the Grand Jury. Thereafter that was done and the court below dismissed the writ. There is no merit in the relator’s claim of double jeopardy. This is not a situation where the first trial was terminated without legal and justifiable cause nor without the relator’s consent. The relator moved for the mistrial and he may not now complain that his motion was granted. The matter was resubmitted to the Grand Jury with the relator being tried on the indictment resulting therefrom. There is further no merit in relator’s contention that he was denied a proper hearing on the return of the writ. Order unanimously affirmed, without costs.

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from a judgment of the Supreme *756Court, Suffolk County (Baisley, J.), entered January 23, 2006, which, upon so much of a prior order of the same court dated June 9, 2004, as granted that branch of the plaintiffs motion which was for summary judgment on the cause of action to recover damages for breach of contract against the defendants Marie Drago and Mary Jo Drago, and after an inquest, is in favor of the plaintiff and against the defendants Marie Drago and Mary Jo Drago in the principal sum of $46,223. Ordered that the appeal by the defendant Christopher Drago is dismissed, as he is not aggrieved by the judgment appealed from; and it is further, Ordered that the judgment is reversed, on the law and as a matter of discretion, that branch of the plaintiffs motion which was for summary judgment on the cause of action to recover damages for breach of contract against the defendants Marie Drago and Mary Jo Drago is denied, and the order dated June 9, 2004 is modified accordingly; and it is further, Ordered that one bill of costs is awarded to the defendants Marie Drago and Mary Jo Drago. In the early 1980’s the defendant Marie Drago, a Michigan resident, and her two then-minor children, the defendants Christopher Drago and Mary Jo Drago, inherited from Marie’s mother-in-law an unimproved waterfront lot (hereinafter the property) in the Town of Southampton. In or about 1985 the plaintiff, James Tierney, allegedly claiming that the property was worth very little, approached Marie Drago and offered to purchase it for the sum of $13,000. A contract of sale was signed, but Marie Drago later refused to close after realizing that the property was in fact worth considerably more than what Tierney had offered. Tierney subsequently commenced an action against the defendants, which was eventually settled on December 3, 1991 by the execution of a stipulation of settlement (hereinafter the stipulation). The stipulation provided, in relevant part, that the property would be “immediately placed on the market for sale” by Tierney and the Dragos at an initial offering price of $110,000 and for an initial period of 18 months. If the property remained unsold thereafter, the price would be reduced by $10,000 every six months until such time as the property was sold or until the price was reduced to $70,000. It was further agreed that Tierney and the Dragos would each receive 50% of the net proceeds of sale. The Dragos remained solely responsible for paying all real property taxes until the property was sold, and the parties agreed that the stipulation would be filed and indexed against the property. *757Although there is some evidence that Tierney initially contacted real estate brokers and may have briefly listed the property for sale, it is undisputed that the parties did not follow the detailed procedure set forth in the stipulation, and that the stipulation itself was never recorded. Approximately nine years later, in November 2000, the Dragos, upon receiving an unsolicited offer, sold the property to a third party without informing Tierney and without paying him 50% of the net proceeds of sale. Tierney thereafter commenced this action to enforce the terms of the stipulation. Christopher Drago was never served with process and the complaint was dismissed insofar as asserted against him for lack of personal jurisdiction. Marie Drago and Mary Jo Drago asserted various affirmative defenses, including abandonment. In an order dated June 9, 2004 the Supreme Court, inter alia, granted that branch of Tierney’s motion which was for summary judgment on the cause of action to recover damages for breach of contract against Marie Drago and Mary Jo Drago, and denied that branch of the defendants’ cross motion which was pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against Marie Drago and Mary Jo Drago. Although the Dragos appealed from the June 9, 2004 order, their appeal was later dismissed by this Court for failure to prosecute. After an inquest, the Supreme Court entered judgment in favor of Tierney and against Marie Drago and Mary Jo Drago. This appeal followed. Under the particular circumstances of this case, in the exercise of our discretion, notwithstanding the prior dismissal for failure to prosecute of the appellants’ appeal from the order upon which the instant judgment is predicated (see Bray v Cox, 38 NY2d 350 [1976]), this Court shall determine the issues raised on the appeal of the defendants Marie Drago and Mary Jo Drago (see Faricelli v TSS Seedman’s, 94 NY2d 772, 774 [1999]; Aridas v Caserta, 41 NY2d 1059, 1061 [1977]; Podbielski v KMO-361 Realty Assoc., 294 AD2d 552, 553 [2002]; cf. Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 756 [1999]). The Supreme Court erred in granting summary judgment in favor of Tierney on the breach of contract cause of action. “[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms” (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). By contrast, where an agreement is ambiguous, “[e]xtrinsic evidence of the parties’ intent may be considered” (Greenfield v Philles Records, 98 NY2d 562, 569 [2002]). In this case, the stipulation is ambiguous both as to its intended dura*758tion, and as to whether the parties contemplated the possibility that it might expire without any sale taking place. Additionally, the evidence tendered by Tierney left unresolved material issues of fact as to whether, through his own affirmative conduct or failure to act during the nine years following the execution of the stipulation, he abandoned his rights thereunder (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 104 [2006]; General Motors Acceptance Corp. v Clifton-Fine Cent. School Dist., 85 NY2d 232, 236 [1995]; Sub10k, Inc. v National Mktg. Servs., Ltd., 31 AD3d 744 [2006]; Dutch v Basile, 170 AD2d 966 [1991]). Therefore, on this record, Tierney failed to establish his prima facie entitlement to judgment as a matter of law (see Ayotte v Gervasio, 81 NY2d 1062 [1993]). Accordingly, the judgment appealed from must be reversed and Tierney’s motion for summary judgment denied. The parties’ remaining contentions are without merit. Crane, J.E, Florio, Fisher and Dickerson, JJ., concur.

Appeal by the employer and its carrier from a decision of the Workmen’s Compensation Board making an award of death benefits. The deceased employee was in' charge of the maintenance of the employer’s airplanes. In November, 1955 he discovered that one of the airplanes had developed corrosion on a wing and it was necessary to take the plane out of service and send it to Texas to be repaired. The employer was paying for corrosion prevention and the decedent was in charge of such matters. The employer’s president was disturbed by the incident and made his feelings known to the claimant and others. At a Christmas party in December, 1955 in the presence *552of the decedent and others he made remarks to the effect that he did not like amateurs working for him (apparently referring to the decedent) and further that if the airplane was not repaired by February 26, 1956 some employees would be looking for new jobs. The record indicates that as a result of the airplane incident the decedent became very upset and worried. It appears that he made several trips to Texas to check on the progress of the work in addition to which he did other things such as expediting parts necessary for the repair of the airplane. The decedent was scheduled to make a final trip to Texas to get the plane and to approve the bills on Monday, March 5, 1956 but at direction of the employer’s vice-president he left early on Saturday, to avoid a scene with the employer’s president who was returning from Europe on Monday. The decedent “ was concerned ” when he left for Texas and he was more upset when he got there and found that the plane was not ready. The extent of the decedent’s mental distress was shown through the testimony of his wife and the pilot who was in Texas with him and a letter which he wrote to his wife. On Wednesday, March 7 the decedent received the bill for the repair of the plane in the amount' of $266,000 and the pilot testified that when he saw him afterwards he was “ white ” and very disturbed. The decedent then began to check the bill in detail seeking to have it reduced, working until 1:30 a.m. on Thursday, all day Friday and going out to dinner with a representative of the repairing compiany on Friday night. On Saturday he went to the airport early to again work on the bill but was unable to do anything and he returned to his motel. He telephoned the employer’s vice-president concerning the bill and felt somewhat relieved after doing that and reporting that he was making some progress. That afternoon while sitting by a swimming pool he experienced a pain in his chest and later expired from what was diagnosed as a myocardial infarction. The claimant presented two medical witnesses, Dr. Curley the family doctor and Dr. Wally a specialist in internal medicine, who definitely stated that the emotional stress which the decedent was subjected to from November until the time of his death and particularly the last week in Texas was a precipitating factor in his death. The appellants’ expert stated that the emotional stresses and strains played no part in the decedent’s death. The Referee found accident and causal relationship and made an award. On review the board referred the case to an impartial specialist, Dr. Sehlamowitz, who was of the opinion that the “anxieties, fears and insecurity, frustrations and guilt feelings ” brought on by the plane incident were causally related to the decedent’s death and the board so found. The appellants contend that an accident within the meaning of the Workmen’s Compensation Law has not been established and that such cannot be made out when as here there is a lack of a showing of any physical strain or exertion. There is substantial medical testimony in this record connecting the decedent’s heart attack to the emotional stress of his work and this is not challenged by the appellants. Matter of Lesnik v. National Carloading Corp. (285 App. Div. 649, affd. 309 N. Y. 958) appears very close to the present case. There the claimant was an executive who for five months had been under great tension in attempting to build up the company revenues which had fallen off and of which he was in charge. The heart attack occurred while the claimant was entertaining customers at the race track. The board made an award finding “ physical and emotional strain” but this court reversed, stating there was “no incident of physical or emotional impact occurring at the race track ”, that it was “ not accidental because no eventful happening can be demonstrated to have caused it ” and that: “ To affirm this award we must be ready to hold that if a man increases the tension of the administrative work and later suffers a heart attack while at rest, this is a compensable accident. We are not ready to go that far in the case before us ” (p. 652). The Lesnik case was cited in Matter of O’Rourke v. State Ins. Fund *553(2 A D 2d 616) where a heart attack was ruled noncompensable when brought on by an executive’s increased work load which was wholly of an executive and administrative nature. The heart attack occurred during a vacation. The one possible distinction between those cases and the present one is that in them the attacks occurred at rest while here, it could be argued that even though the decedent was sitting by a swimming pool he was still in the midst of the very problem, the strain and tension of which the board could find caused his attack. The doctors were questioned here as to whether any particular incident precipitated the attack and while one mentioned the receiving of the bill on Wednesday and another the disappointment of being unable to accomplish anything, together with the telephone call to the superior on Saturady their opinions as to causal relationship were really based on the continuance of the emotional stress and anxieties from November to the date of death. While the court spoke of a particular event being a necessary requirement in Lesnik (supra), it may be that such an “ event ” is no longer necessary for in Matter of Schechter v. State Ins. Fund (6 N Y 2d 506) the heart attack was brought on by increased trial work over a period of seven weeks. While the Schechter case is somewhat akin to the present ease, which would seem to meet its requirement that the conditions of performing the work impose a strain which damages the heart, nevertheless there is a distinction in that in Schechter some actual physical strain was involved and the board based its award on “ emotional and physical strain ”. None of the doctors who testified herein based their opinions on physical strain nor did the board so find. Therefore we have a heart attack found compensable solely on the basis of mental disturbances and emotional strain resulting from the employment. Decision and award reversed and claim dismissed, with costs to the appellants against the Workmen’s Compensation Board.

This appeal by the employer and carrier brings up for review a decision of the Workmen’s Compensation Board holding that the record supports a finding of “ accident and/or occupational disease ”. We have previously disapproved of such an alternative finding. (Matter of Conroy v. Rupert Fish Co., 8 A D 2d 553.) No clear-cut determination is presented for review, and the matter would have to be remitted for a clarified decision in any event. However, we are of the opinion that the evidence fails to establish either accident or occupational disease. Concededly claimant has suffered a hiatus hernia. The medical testimony is to the effect that claimant had a pre-existing condition and probably had the weakness from birth. The theory of the claim is that the work aggravated the condition. Claimant operated a “hand screw machine” which he could do from either a standing or sitting position. He had to place a piece of stock in the machine and lock it in place by operating a lever, which he said sometimes had a jarring effect on his body. Claimant does not describe any accident or any single identifiable event. He says that sometime in June or July of 1952 he felt a sudden pain in his chest. He does not attribute the pain to any single incident or describe what he was doing except that he was operating the machine. Moreover, the medical testimony negatives the theory of accident and is to the effect that claimant’s condition is not attributable to any one episode or single event. An aggravation of a pre-existing condition incurred in the course of usual work is not an “accident”. (Matter of Kobinski v. George Weston, Ltd., 302 N. Y. 432; Matter of Steindel v. Gordon Baking Co., 9 A D 2d 798; Matter of Meyer v. Hollander & Son, 285 App. Div. 195; Matter of Deyo v. Village of Piermont, 283 App. Div. 67.) The most that the record discloses on the question of occupational disease is the aggravation by usual work of a pre-existing condition. This does not constitute an occupational disease. (Matter of Detenbeck v. General Motors Corp., 309 N. Y. 558.) Award reversed, with costs to appellant) against the Workmen’s Compensation Board, and the matter remitted to thi Workmen’s Compensation Board.

In an action, inter alia, to enjoin the defendants from using or occupying a structure on their premises and to direct that the structure be demolished, the defendants appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County, dated September 30, 2005, as granted the plaintiffs motion for summary judgment, and the plaintiffs separate cross motion to dismiss the defendants’ affirmative defenses and counterclaims, and denied the defendants’ motion for an award of costs and the imposition of a sanction against the plaintiff and the plaintiffs attorneys, and the defendant’s separate motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) based upon the affirmative defense of lack of personal jurisdiction. Ordered that the appeal from so much of the order and judgment as denied the defendants’ motion for an award of costs and the imposition of a sanction is dismissed, without costs or disbursements, for failure to perfect the same in accordance with the CPLR and the rules of this Court (see 22 NYCRR 670.9; CPLR 5528 [a] [5]); and it is further, Ordered that the order and judgment is affirmed insofar as reviewed; and it is further, *759Ordered that one bill of costs is awarded to the plaintiff. The plaintiff commenced this action, inter alia, for an injunction after the defendant Joseph Mascia was found guilty in the District Court, Suffolk County, of constructing a residence without a permit as required by local law (see Brookhaven Town Code § 85-17 [A]). Although a permit had initially been issued in 1998 for the construction of the residence the permit was later revoked on August 26, 1999 on the ground that the construction did not conform to the approved plan. The defendants did not contest the revocation of the building permit, but nevertheless continued the construction without a permit. The defendants since completed the construction and presently reside in the premises without a certificate of occupancy, also in violation of local law (see Brookhaven Town Code § 85-20 [A]). A town is entitled to a permanent injunction to enforce its building and zoning laws upon demonstrating that the party sought to be enjoined is acting in violation of the applicable provisions of local law (see Town Law §§ 135, 268; Town of Huntington v Albicocco, 256 AD2d 330 [1998]; Town of Islip v Clark, 90 AD2d 500, 501 [1982]). In support of its motion for summary judgment seeking such relief here, the Town established its prima facie entitlement to judgment as a matter of law by demonstrating, on the basis of the prior criminal conviction of the defendant Joseph Mascia and the affidavits of the Town’s building officials, that the defendants constructed the residence and were residing in it in violation of local law. In opposition, the defendants failed to raise a triable issue of fact and did not establish that summary judgment should have been denied because discovery remained outstanding (see CPLR 3212 [f]). The denial of summary judgment pursuant to CPLR 3212 (f) requires a showing that the request for additional discovery is calculated to yield facts that would warrant the denial of summary judgment (see Min Whan Ock v City of New York, 34 AD3d 542 [2006]; Downey v Schneider, 23 AD3d 514, 517 [2005]). The defendants made no such showing here. The Supreme Court correctly granted the Town’s cross motion to dismiss the defendants’ affirmative defenses and counterclaims and correctly denied the defendants’ motion to dismiss the complaint based on the affirmative defense of lack of personal jurisdiction (see Public Adm’r of County of N.Y. v Markowitz, 163 AD2d 100 [1990]; Ralph C. Sutro Co. v Valenzuela, 113 AD2d 793, 794 [1985]). The defendants’ arguments that the grounds upon which the building permit was revoked were insufficient are precluded by their failure to challenge the revocation in a timely fashion (see Grgecic v Town of Bedford, *760264 AD2d 465 [1999]; Solow v Liebman, 202 AD2d 493 [1994]; Curtis Case, Inc. v City of Port Jervis, 150 AD2d 421 [1989]; see generally Stage v Village of Owego, 39 NY2d 1017 [1976], affg 48 AD2d 985 [1975]). This action is not barred by reason of Joseph Mascia’s prior criminal conviction on the basis of the constitutional prohibition against double jeopardy since it seeks civil, rather than criminal, relief (see Hudson v United States, 522 US 93, 95-96 [1997]). Further, the defendants’ remaining constitutional claims, first raised more than three years after the revocation of the building permit, are barred by the applicable statute of limitations (see 423 S. Salina St. v City of Syracuse, 68 NY2d 474, 482 [1986], cert denied 481 US 1008 [1987]; Mompoint v City of New York, 299 AD2d 527, 528 [2002]). The remaining defenses are either unsupported by any facts (see Citibank, N.A. v Walker, 12 AD3d 480, 481 [2004]; Petracca v Petracca, 305 AD2d 566, 567 [2003]), not properly interposed in an answer (see Jacobowitz v Leak, 19 AD3d 453, 455 [2005]), or otherwise without merit. The defendants’ appeal from so much of the order of the Supreme Court as denied their motion for an award of costs and the imposition of a sanction against the plaintiff and the plaintiffs attorneys must be dismissed since the appendix filed by the defendants does not contain any of the papers filed by the plaintiff in opposition to their motion. As a result, we are unable to render an informed determination on the merits of the defendants’ claims (see Lucadamo v Bridge To Life, Inc., 12 AD3d 422 [2004]; Kuriakose v Gray, 4 AD3d 454, 455 [2004]). Spolzino, J.E, Florio, Lifson and Covello, JJ., concur.

Appeal by two employers and carriers from an award of the Workmen’s Compensation Board assessed equally against them for reduced earnings. The sole contention of appellants is that the board erroneously excluded commissions from renewal premiums received by claimant, an insurance salesman, during the period of the award, in determining that he had reduced earnings. If the commissions received by claimant on renewal premiums are considered as current earnings as of the time received, claimant would have had no reduced earnings, and hence there would be no basis for an award. The board has considered these renewal commissions as relating back to the original policies, and has declined to consider such commissions as earnings during the award period. The record is clear that if, upon renewal of a policy, any change or alteration of the original policy was requested, it was claimant’s duty to service the policy by interviewing the policyholder and making the requested changes. The record is not clear as to just how frequently such servicing of renewal policies was required of claimant. However, we do not think that the actual quantum of work done by claimant in servicing renewal policies is controlling. Claimant had a contract with the insurance agency which employed him providing, in part: “ On renewal premiums on policies written by second party [claimant] and collected by him or by the first party while this contract is in force second party will be entitled to a service fee of 5% for servicing such policies.” It is not realistic to regard these renewal commissions as gratuities relating back to the original policies because the parties have bargained for and agreed upon claimant’s compensation for his services, which by the terms of the agreement was to include commissions upon renewal premiums payable at the time of renewal. Consequently, by agreement they were current earnings as of the time received, and should have been so considered in reaching a determination *554as to claimant’s reduced earnings, if any. Respondent’s contention that this appeal is not proper and that the abandonment of an earlier appeal renders the previous decision of the board final, is without merit. Following the abandonment of the previous appeal new evidence was taken and a new award made. This appeal, taken from the last and final determination of the board, is properly taken. Award reversed and the claim dismissed, with one bill of costs against the Workmen’s Compensation Board to be divided between the appellants.

Appeal from a judgment in a negligence ease in favor of plaintiff. Plaintiff was employed as a laborer for W. R. Ferguson and Company and while working on a construction job, for the purpose of holding the chute, climbed on defendant’s cement mixer which was mounted on an automobile cab truck. The driver of the truck knew plaintiff was on the rear thereof and allegedly started the truck with a “jerk”, causing plaintiff to be thrown to the ground and injured. The testimony presented a factual question as to negligence, contributory negligence and other contested issues and was properly submitted to the jury after a charge to which there were *555no exceptions and where the various requests to charge made by the defendant were granted by the court. Several instances which took place during the trial, alleged to be prejudicial, have been called to our attention, and which after examining the record we find to be without substance or merit. The record as a whole is convincing that the defendant had a fair trial and that the verdict arrived at by the jury was proper. Medically it was established that the plaintiff sustained a herniated disc at the level of the fifth lumbar — first sacral interspace, a contused elbow and other less serious injuries. As a result of the back condition he has had several episodes of acute pain. His doctor stated that the condition from which he was suffering was permanent. He incurred special damages for doctor and other items of approximately $300, together with several weeks of lost earnings. A verdict of $10,000 under such circumstances is not excessive. Judgment unanimously affirmed, with costs.

*761In an action to permanently enjoin alleged violations of the Code of the Village of Westhampton Beach, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated March 15, 2005, as granted those branches of the plaintiffs motion which were for summary judgment dismissing their first and second counterclaims, and the plaintiff cross-appeals, as limited by its notice of appeal and brief and representations upon oral argument, from so much of the same order as denied that branch of its motion which was for a preliminary injunction compelling the defendants to remove additions to the subject premises and place the remainder of the subject premises on pilings 11 feet above sea level. Ordered that the order is affirmed insofar as appealed from and cross-appealed from, without costs or disbursements. The plaintiff, Village of Westhampton Beach, seeks to compel the defendants to correct violations of the Code of the Village of Westhampton Beach (hereinafter the Village Code) at the defendants’ premises. The defendants alleged in their first and second counterclaims that they had vested rights in the alteration of the premises, in that their renovation of the premises, allegedly pursuant to a building permit, was substantially completed before the Village issued a stop-work order. The defendants raised the issue of vested rights in an administrative appeal to the Village of Westhampton Beach Zoning Board of Appeals, in which they challenged the stop-work order. They further contended that their renovations complied with the building permit and the Village Code. While the administrative appeal was pending, the defendants completed the work, claiming further proceedings against them were stayed pursuant to Village Law § 7-712-a (6). Once the work was completed, the defendants withdrew their administrative appeal. By withdrawing their administrative appeal challenging the stop-work order, the defendants relinquished any rights to administrative review of the stop-work order they may have had, their claims that the renovations complied with the terms of the building permit and the Village Code, and their claim of vested rights. Further, by failing to exhaust their administrative remedies, they relinquished any right to judicial review of those *762issues (see Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]; Matter of Jordan’s Partners v Goehringer, 204 AD2d 453, 454-455 [1994]; Matter of Padar Realty Co. v Klein, 60 AD2d 533, 534 [1977]). Thus, the Supreme Court properly granted those branches of the Village’s motion which were for summary judgment dismissing the defendants’ first and. second counterclaims on the ground that the defendants failed to exhaust their administrative remedies. With respect to the plaintiffs motion for a preliminary injunction, upon oral argument, counsel for the Village stated that it was not seeking to enjoin the defendants’ use and occupancy of the premises pending resolution of this matter. Therefore, the denial of that branch of the plaintiff’s motion which was to enjoin use and occupancy pendente lite is not before us. With respect to the remaining branches of its motion for a preliminary injunction, the Village demonstrated a likelihood of success on the merits and a balancing of the equities in its favor, and is thus entitled to injunctive relief. Thus, the only remaining issue is what form that relief should take, and what must be done to bring the defendants’ premises into compliance with the Village Code. The Supreme Court properly denied those branches of the plaintiffs motion which sought a preliminary injunction compelling the defendants to remove additions to the subject premises and place the remainder of the subject premises on pilings 11 feet above sea level. Mandatory injunctive relief should not be granted pendente lite without a showing of extraordinary circumstances where the status quo would be disturbed and the plaintiff would be granted the ultimate relief in the action (see St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 AD2d 347, 349 [2003]; Rosa Hair Stylists v Jaber Food Corp., 218 AD2d 793, 794 [1995]). Directing the defendants to attempt compliance with the Village Code before such a determination is made could cause the defendants to do unnecessary or inadequate work which later would have to be redone, and would deprive the plaintiff of an incentive to prosecute this action to its conclusion (see Town of Brookhaven v Pesinkowski, 288 AD2d 371, 372 [2001]; Town of Esopus v Fausto Simoes & Assoc., 145 AD2d 840, 842 [1988]). Accordingly, the order is affirmed insofar as appealed from and cross-appealed from. Crane, J.E, Rivera, Goldstein and McCarthy, JJ., concur.

Appeal by an employer and its insurance carrier from a decision and award of the Workmen’s Compensation Board for disability resulting from a myocardial infarction found to have been precipitated by the emotional stress of “ heated arguments ” between claimant, a proofreader, and his foreman, their dispute relating to the responsibility for uncorrected errors in certain proofs. Appellant’s medical expert attributed the heart attack to an underlying coronary condition and said that the excitement of the argument described was not sufficiently long or severe to precipitate the attack. Claimant’s physician, while assuming a pre-existing coronary arteriosclerosis and an episode of coronary insufficiency four days before and minor recurrences of pain thereafter, found that the emotional stress of the argument precipitated the disabling attack. Claimant testified to two arguments, one shortly after the other, the first lasting about six minutes and the other from four to eight minutes. He said that “by implication ”, the foreman called him untruthful and not competent at his job, but the actual words which he then quoted seem innocuous enough and certainly not inflammatory. Although claimant said that the foreman “shouted” and “hollered”, when asked. “Now, when you say Mr. Sullivan hollered, exactly what do you mean by that? Did he shout; is that what you mean”, claimant replied “He raised his voice above the normal speaking tone.” One of the coemployees called by claimant said that he “wouldn’t say it was shouting ”, that it “ wasn’t the normal tone” and that “ the voices were raised ”, and the other said that he was in another room and did not observe the argument. We find in this record no evidence of emotional stress more severe than that which was imposed upon the employee (who also engaged in an argument with his superior as to the performance of the work) in Matter of Santacroce v. 40 W. 20th St. (9 A D 2d 985), in which we said, “ Upon this record, however, we are convinced that in the common-sense viewpoint of the average man, accident would be denied and the argument as described by the only witness would be regarded as neither involving nor inducing emotional strain or tension greater than the countless differences and irritations to which all workers are occasionally subjected without untoward result.” (See, also, Matter of Ehrensal v. New York State Div. of Employment, 2 A D 2d 944.) Decision and award reversed and claim dismissed, with costs to appellants against the Workmen’s Compensation Board.

*763In an action, inter alia, to recover damages for injurious falsehood, the defendant appeals from an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated July 6, 2006, which denied her 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, which owns a restaurant, commenced this action against the defendant, Mary C. Wilson, a clerk in the Town of Shelter Island Building Department, alleging that she maliciously contacted the Suffolk County Department of Health Services for the purpose of triggering a wastewater review of the plaintiffs restaurant in order to injure the plaintiff. Thereafter, the defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff failed to serve a notice of claim in accordance with General Municipal Law § 50-e. The Supreme Court denied the motion, finding there were questions of fact, inter alia, as to whether the defendant was acting in her capacity as a Town employee. We disagree. The defendant established its entitlement to judgment as a matter of law by demonstrating that the plaintiff failed to serve a notice of claim before commencing the action and the conduct complained of occurred during the discharge of Wilson’s duties within the scope of her employment (see Zwecker v Clinch, 279 AD2d 572, 573 [2001]). In opposition, viewing the evidence in the light most favorable to the plaintiff and giving it the benefit of every favorable inference, the plaintiff failed to produce any evidence to raise a triable issue of fact as to whether Wilson was acting within the scope of her employment (see DeRise v Kreinik, 10 AD3d 381 [2004]; Smith v Collins, 221 AD2d 518 [1995]; McCormack v Port Washington Union Free School Dist., 214 AD2d 546 [1995]; Agins v Darmstadter, 153 AD2d 600 [1989]; Cioffi v Giannone, 56 AD2d 620 [1977]). Schmidt, J.E, Skelos, Lifson and Covello, JJ., concur.

The sole question on this appeal is whether the refusal of the claimant to submit to was unreasonable. The claimant suffered an umbilical hernia *556on March 10, 1952. On October 3, 1955 while working for the appellant as a cleaning woman she sustained a further aggravation of the original hernia. At that time she was 49 years of age and refused to undergo surgery to correct the condition. She has experienced a previous operation “ which went very badly”. As a result of the accident on October 3, 1955, the prior hernia condition became considerably aggravated and caused the daimant to become completely disabled. The medical testimony is in accord that surgery would be a proper procedure to attempt to remedy the hernia condition and if successful, would permit her to return to work and thus eliminate further claims for disability. At least one of the doctors testified she had a “mortal fear ” of another operation and that with the proper surgical garment, she would be able to do her work with the exception of heavy lifting which in all probability would not have been recommended even if she had undergone the operation. The medical testimony determined that it was unreasonable for claimant to refuse the operation and that by having it immediately she would avoid future complications. Such testimony does not justify delay in the performance of the operation because of reluctance or fear on the part of the claimant. (Matter of Palloni v. Brooklyn-Manhattan Tr. Corp., 215 App. Div. 634.) Decision and award of the Workmen’s Compensation Board reversed and the matter remitted, with costs to the appellants.

Appeal by employer and carrier from an award of death benefits in a heart case. Appellants contend that there is no substantial evidence to support the award. Decedent was employed as a caretaker in an office building in which he and his wife occupied an apartment on the second floor. On April 19, 1958, decedent polished three floors of the building, using an electric polisher weighing about 90 pounds. In addition to pushing and guiding the machine it is a fair inference from the record that decedent had to lift the machine on and off the elevator. When he arrived at the second floor his wife observed him staggering and leaning against a wall. He complained of pain in his left side and his left arm, and his wife observed that he was very ill and perspiring freely. With the aid of another tenant the Fire Department Inhalator Squad was. called, and decedent died while they were administering to him. While no autopsy was performed, the Coroner examined the body before rigor mortis had set in, and from the appearance of the body, from his examination of the body and from the circumstances surrounding decedent’s death, diagnosed the cause of death as a coronary occlusion. This constituted a proper and permissible expert opinion as to the cause of death, and it may not be said, as appellants urge, that there is no evidence that death was due to a coronary occlusion. Appellants seem to further contend that there must be evidence of pain at the exact moment when decedent lifted the machine. We know of no rule which requires such precise pinpointing of the pain with the exertion. Here it clearly appears that almost immediately following the moving of the machine from one floor to another decedent was suffering pain and was in great distress, with death following almost immediately. There is medical opinion that the exertion of the lifting brought about the attack and the resulting death. Appellants concede this but contend that the medical opinion is based upon the improper assumption that the cause of death was a coronary occlusion. This was not an improper assumption because, as above indicated, there was competent medical opinion that such was the cause of death. The case falls well within the pattern of a great many heart cases, and there is substantial evidence in the record to support the award. Award unanimously affirmed, with costs to the Workmen’s Compensation Board.

*764In an action for a divorce and ancillary relief, the plaintiff appeals (1) from an order of the Supreme Court, Westchester County (Donovan, J.), dated February 23, 2005, which, inter alia, granted the defendant’s motion to confirm the report of a referee dated September 28, 2004, made after a hearing, and (2), as limited by her brief, from stated portions of a judgment of the same court dated May 3, 2005, which, inter alia, awarded her child support in the sum of only $2,900 per month, and maintenance in the sum of $4,000 per month for a period of only five years from the date of the commencement of the action. Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is modified, on the law, the facts, and in the exercise of discretion, (1) by deleting from the fourth decretal paragraph thereof the words “until October 25, 2006 (a period of five years from the date of commencement of the action)” and substituting therefor the words “until October 25, 2009 (a period of eight years from the date of commencement of the action),” and (2) by deleting from the fifth decretal paragraph thereof the words “Defendant shall pay to Plaintiff, as and for child support, the sum of $2,900.00 per month, payable in semi-monthly installments of $1,450.00 each” and substituting therefor the words “Defendant shall pay to Plaintiff, as and for child support, the sum of $3,625 per month, payable in semi-monthly installments of $1,812.50 each”; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements. The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on appeal from the judgment (CPLR 5501 [a] [1]). During the course of a hearing on the economic issues involved in this divorce action, the parties and the referee realized that no written order of reference had been issued by the Supreme Court. When the plaintiff challenged the referee’s authority to proceed with the hearing, the defendant moved for *765an order of reference nunc pro tunc. The Supreme Court granted the motion, and issued a nunc pro tunc order appointing the referee to hear and report on the economic issues. Contrary to the plaintiffs contention, the court did not err in issuing the nunc pro tunc order of reference. The factual determinations required to be made were sufficiently complex to warrant a reference pursuant to CPLR 4212, and consent by the parties is only required where the reference is one to “hear and determine,” not “hear and report” (see Rosen v Rosen, 16 AD3d 398 [2005]; see also Schanback v Schanback, 130 AD2d 332 [1987]). However, the court improvidently exercised its discretion in confirming the referee’s determination to limit the plaintiffs award of spousal maintenance to a period of five years, retroactive to the date of commencement of the action. The evidence presented at the hearing reveals that the plaintiff is the primary caretaker of the parties’ three children, and that she stopped working shortly before the birth of the parties’ second child in 1995 in order to become a stay-at-home mother. The primary purpose of a maintenance award is to give the spouse economic independence (see O’Brien v O’Brien, 66 NY2d 576, 585 [1985]), and “[s]pousal support should be awarded for a duration that would provide the recipient with enough time to become self-supporting” (Bains v Bains, 308 AD2d 557, 559 [2003]). Taking into consideration all of the relevant factors, including the plaintiffs age, education and employment history, and the length of the marriage (see Domestic Relations Law § 236 [B] [6]), the award of maintenance should be extended by an additional three years. This will afford the plaintiff, who has been out of the work force for an extended period of time, and is the primary caretaker of the parties’ children, a sufficient opportunity to become self-supporting (see Wortman v Wortman, 11 AD3d 604 [2004]; Klein v Klein, 296 AD2d 533 [2002]). Furthermore, under the circumstances of this case, the court should not have confirmed the referee’s determination to impute an annual income of $40,000 per year to the plaintiff for purposes of calculating child support under the terms of the Child Support Standards Act (hereinafter the CSSA) (Domestic Relations Law § 240 [1-b]). Although the court may impute income based upon a party’s past income or demonstrated earning potential (see Brian v Brian, 36 AD3d 847 [2007]; Rand v Rand, 29 AD3d 976 [2006]), given the extended period of time during which the plaintiff has been out of the work force, and the necessity of affording her an additional period of time to become self-supporting, it was improper to impute income to *766her at this juncture. Accordingly, as an alternative to remitting the matter to the Supreme Court, Westchester County, for a de novo determination of child support, in the interest of judicial economy we have recalculated the parties’ support obligation by applying the CSSA formula solely to the defendant’s income. We therefore modify the judgment to require the defendant to pay child support to the plaintiff in the sum of $3,625 per month, payable in semi-monthly installments of $1,812.50 each. The plaintiff’s remaining contentions are without merit. Crane, J.E, Krausman, Fisher and Dickerson, JJ., concur.

Appeal by self-insured employer from a decision of the Workmen’s Compensation Board discharging the Special Fund under section 25-a from liability and holding it liable for the award. The claimant was employed as a millwright helper when on June 23, 1947 he fell fracturing his skull, his right scapula and several ribs. He was out of work until July 28, 1947 and an award of compensation was made. In 1950 the case was closed for nonappearance and lack of prosecution. In 1958 the case was reopened and a further award made to the claimant. When he returned to work in 1948 the claimant did not work as a millwright but as a painter. At a hearing in 1947 the claimant testified that he was back at work earning his regular salary while in 1958 he testified that he did not get his regular time and lost $1,000 per year. When the accident happened the claimant was earning $1.39 per hour as a millwright helper and averaging about $70 per week. It appears that when he returned to work he was classified as a painter-glazer at $1.44 per hour. He testified in 1950 that it was temporary work painting and that he was not able to go up on ladders as the other men did because he got dizzy. At a hearing in 1958 the claimant testified that he just “fiddled around” for about a year, after his return to work in 1947, did a little work, painted around, did odd work and did light work as a handyman. When the claimant retired in 1955 his average weekly wage was over $100. The payroll shows, however, that he received the same wages as other painters except those who may have received more because of seniority. When a representative of the employer was asked if the claimant did the same work as any painter-glazer, he stated that he did only ground level work because he had a medical limitation. The attorney for the employer conceded that the claimant “had a work limitation within Ms classification.” The Referee found that although the claimant received Ms full salary a job had been created to fit his disability and made the award after the reopening against the self-insured employer. The board affirmed finding that the assignment to lighter work at regular wages constituted an advance payment of compensation. The appellant contends that the claim*557ant’s services as a painter were fully worth what he was paid. The leading case on advance payment of compensation through the payment of salary not earned is Matter of Baker v. Standard Rolling Mills (284 App. Div. 433, 435-436) where it was stated: “Compensation does not include wages paid for value received. If any part of wages are to be deemed an advance payment, such part must necessarily be found gratuitous. If an injured employee returns to work and fully earns his hire there is nothing gratuitous in such an arrangement. In that case the employer gives him nothing; he merely pays for the worth of services performed. Of course an employer may furnish work to an injured employee in the nature of a sinecure at full wages, and doubtless in such a case the board may, within the range of its fact finding power, find the element of gratuity. * * * The test is whether the employer paid for something he did not get in the way of service.” The board cites four cases (Matter of Pollack v. Melville Shoe Co., 271 App. Div. 846; Matter of Lopa v. Brillo Mfg. Co., 271 App. Div. 846; Matter of White v. Marine Trust Co., 281 App. Div. 912; Matter of Sassano v. City of New York, 272 App. Div. 843) all of which were criticized by this court in Baker opinion. The recent ease of Matter of Golomb v. City of New York (8 A D 2d 874) is readily distinguishable. There the claimant returned to work at his regular salary but performed the work of one in a lower pay classification and there was evidence that he did not even perform the work of one in that classification. The court said the question was whether the work he performed" was worth the salary he received and it held that the board could find that it was not. There is no evidence here indicating that the claimant did not earn his wages. At one point he testified that he fiddled around for a year after he returned doing light work but he was apparently painting even then. It was conceded that he had a limitation within his classification, that is he did not go up on ladders, but this would not seem to necessarily mean that the painting which he performed on the ground level was not worth the salary he was paid. What makes the question difficult to determine is that the record is not really fully developed on this question and there is very little from which to draw a conclusion. In Matter of Puglia v. Sing Sing Prison (3 A D 2d 871) the court held that although the claimant returned to lighter work the record indicated that he earned his hire and that testimony supporting the theory of an advance payment was too tenuous to rise to the dignity of substantial evidence. In our view, upon this record there was no substantial evidence to support a finding that claimant was receiving any type of gratuity. There is nothing of substance which indicates that the employer did not receive full value for claimant’s wages. The board largely bases its decision on the fact that claimant did no scaffold painting. The fact is though that he did paint and that is what he was hired and paid for. It would be unduly harsh to charge an employer for having given consideration to claimant’s fear of height. The board’s finding of compensation payments is neither within the spirit nor the letter of the Baker case. Decision and award reversed and case remitted to the board, with costs to appellant against the Special Fund.

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from (1) a judgment of the Supreme Court, Queens County (Nelson, J.), entered November 3, 2005, which, upon a jury verdict on the issue of liability, is in favor of the defendants and against her, in effect, dismissing the complaint, and (2) an order of the same court dated March 21, 2006, which denied her renewed motion pursuant to CELR 4404 (a) to set aside the verdict and for judgment in her favor as a matter of law, or alternatively, to set aside the verdict as against the weight of the evidence and for a new trial. Ordered that the judgment and the order are affirmed, with one bill of costs. To conclude as a matter of law that a jury verdict is not supported by sufficient evidence, a court must determine that “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Contrary to the plaintiffs contention, viewing the evidence in the light most favorable to the defendants (see Alexander v Eldred, 63 NY2d 460 [1984]), a valid line of reasoning existed for the jury’s determination that the doctrine of res ipsa loquitur did not apply to this case and that the defendants were not negligent for the happening of the injury-producing event (see generally Morejon v Rais Constr. Co., 7 NY3d 203, 209 [2006]). Moreover, the verdict was not against the weight of the evidence (see Nicastro v Park, 113 AD2d 129 [1985]). Miller, J.E, Spolzino, Goldstein and McCarthy, JJ., concur.

Appeal by an employer and carrier from an award of death benefits made by the Workmen’s Compensation Board. Appellants raise the issues of accident and causal relationship. Decedent was a meat cutter who worked from 9:00 A.m. to 9:00 p.m. cutting meat for self-service counters. Ordinarily his work consisted of reducing sizable cuts of meat to smaller cuts and handling chickens. On April 10, 1958, in the forenoon, decedent lifted a hindquarter of beef weighing approximately 150 pounds from a hook and had to carry it a short distance to another location. Such an operation was not ordinarily a part of his job. At noon a eoworker observed the decedent sitting in a back room. He had not eaten his lunch and complained' that he did not feel good, and the coworker observed that he looked pale and moved slowly. Decedent remained on the job for the remainder of the workday, however, and on his way home told a neighbor about lifting the heavy piece of meat and mentioned that he did not feel good. He told his father-in-law about lifting the quarter of beef, of pain in his chest, and said the pain was getting worse. At 3:00 a.m. the following morning he told his wife that he had a “ terrific pain ” in his chest from lifting beef. He was hospitalized and died at 4:15 P.M. the following day. The final diagnosis was “ infarction of myocardium from coronary thrombosis.” Appellants argue that there are no circumstances or other evidence corroborating the above hearsay statements, and complain that decedent did not immediately report to any coworker or to the employer that he had suffered an accident. The record discloses that a coworker actually observed him lifting and carrying the quarter of beef, observed that he looked pale and moved slowly, did not eat his lunch, and that he complained of not feeling well. These direct observations at the scene of the. work are adequate corroboration, and there are no requirements in the law that the decedent accurately and immediately diagnose his ill feeling and report the details. There is substantial medical evidence that lifting the meat triggered the heart attack which was aggravated by the continuance of work and that the effort contributed to decedent’s death. Award unanimously affirmed, with costs to the Workmen’s Compensation Board.

*767In a support proceeding pursuant to Family Court Act article 4, the father appeals from an order of commitment of the Family Court, Suffolk County (Spinner, J.), dated December 19, 2005, which committed him to the custody of the Suffolk County Correctional Facility for a term of six months, unless he purged himself of his contempt by paying the sum of $12,000 to the Suffolk County Child Support Enforcement Bureau. Ordered that the order of commitment is affirmed, without costs or disbursements. Since the parties’ divorce in 2002 the mother has filed several petitions to enforce the child support obligations set forth in the stipulation settling the divorce action, which was incorporated but not merged into their judgment of divorce. In 2005 the father petitioned for a downward modification of support and the mother cross-petitioned for a judgment for arrears. The Support Magistrate dismissed the father’s petition for a downward modification of support, and found him in willful violation of his support obligation. The Family Court ordered the father incarcerated. We affirm. The mother made a prima facie showing of a willful violation by adducing evidence of the father’s failure to pay support as ordered (see Family Ct Act § 454 [3] [a]; Matter of Powers v Powers, 86 NY2d 63, 69 [1995]). In rebuttal, the father failed to provide sufficient proof of his inability to pay (see Matter of Chowanec v McDermott, 12 AD3d 441, 442 [2004]). Thus, the Support Magistrate properly found that the father’s violation of his child support obligations was willful (see Matter of Rawlins v Williams, 27 AD3d 757 [2006]). “Great deference should be given to the determination of the Support Magistrate, who is in the best position to assess the credibility of the witnesses and the evidence proffered” (Matter of Musarra v Musarra, 28 AD3d 668, 669 [2006]). Thus, we find that the Family Court properly rejected the father’s claims of unemployment and impoverishment (see Matter of Teller v Tubbs, 34 AD3d 593 [2006]). Because the father did not appeal from the Family Court’s order dated January 25, 2006, which dismissed his objections to the separate order of the Support Magistrate dated December 19, 2005 dismissing his petition for a downward modification of his support obligations, his challenge to that determination is not properly before this Court (see Matter of Rosato v Rosato, 21 AD3d 418, 419 [2005]). The father’s remaining contentions are without merit. Crane, J.E, Florio, Fisher and Dickerson, JJ., concur.

Appeal from decision of Workmen’s Compensation Board that determined work stoppage of the claimant was solely associated with the accident of November 24, 1952 and discharged the Special Fund for Reopened Cases. Claimant first suffered from dermatitis in 1946 while working for McCall Corporation when she was exposed to benzol, turpentine and ink. Thereafter in January, 1951, while working for Huyler’s she developed a skin irritation and a subsequent test determined she was allergic to chocolate to which she was exposed in the course of this employment. This *559condition was reportedly cured and the case closed on July 20, 1951. Subsequently while working in the employ of Park and Tilford she became disabled on November 24, 1952 from exposure to Tintex. Compensation was paid by the appellants from the above date until June 4, 1958 when a hearing was held at their request to determine whether the disability was associated with the prior exposures. The board determined there was no such association. The claimant testified when she went to work for the employer herein she had recovered from the prior attacks of dermatitis and worked for approximately seven months before it “flared up again”. Medical reports were filed monthly from December 12, 1952 until May 27, 1958 which showed a continuing condition of dermatitis. The doctor for the Special Fund testified in his opinion there was no relationship as to the different exposures as the condition in each claim was due to a different product. He expressed some uncertainty that Tintex alone was causing the rash to last seven years after exposure. Claimant’s physician testified in June, 1958, and stated .that he had treated claimant continuously since October, 1955 for contact dermatitis and which condition was related to her employment with Park & Tilford and that she became hypersensitized due to her previous exposures. Another doctor produced by the carrier was unable to express an opinion as to the relationship of the prior attacks but agreed that each attack added to this hypersensitivity and that the condition might be permanent. The medical testimony is pretty much in agreement that each claim was independent of the others as each exposure was associated with a different product. The board’s determination that the Special Fund should be discharged, each incident being separate of the others, was fully justified. The medical testimony as to the long duration of disability resulting from the last exposure was close but the record as a whole was sufficient to sustain this finding by the board. Decision and award unanimously affirmed, with one bill of costs to be divided between Workmen’s Compensation Board and Special Fund for Reopened Cases.

Appeal by the self-insured employer from a decision of the Workmen’s Compensation Board denying its claim for reimbursement from the Special Disability Fund under subdivision 8 of section 15. The claimant became disabled on April 18, 1955 as the result of an asthmatic condition developed from his employment. He had worked for the employer 38 years and was foreman in a slaughterhouse. The claimant was also suffering from loss of hearing and the issue here is whether the hearing condition was such as to entitle the employer to reimbursement under subdivision 8 of section 15. A Dr. Kopp examined the claimant on January 11, 1957 and reported that he had a loss of hearing of 54% in the right ear and 51% in the left ear which could be considered “ unserviceable hearing ”. The claimant testified that he began to notice the effects of his bad hearing in about 1945 when he would see people moving their lips but not hear anything. He stated that Ms employer had noticed he was hard of hearing in about 1952, asked him if he was and the claimant informed him that he was. The claimant stated that Ms hearing condition did not become any worse after April, 1955. The employer was unable to produce the men who had been the claimant’s superiors to verify this because they were no longer with the employer. A Dr. Sandvoss who was in charge of the employer’s medical department from 1946 through 1955 testified that he examined the claimant about 30 times in that period. Although he never examined him for loss of hearing nor noted such in his *560records he testified that he had noticed that the claimant was hard of hearing, that it had become increasingly hard for him to hear and that he had considered the condition permanent. A Dr. Harkavy who examined the claimant for the employer on July 6, 1956 testified that the loss of hearing made the claimant’s over-all disability materially and substantially greater. The Referee denied the appellant’s claim for reimbursement and the board affirmed stating in its decision that appellant’s doctor had not informed the appellant of the hearing condition, that there is no indication that the condition was considered a handicap to the claimant’s employment and therefore “ that the claimant was not hired or continued in his employment with knowledge by the employer that he had a permanent physical impairment in the nature of a hearing loss which was likely to be a hindrance or obstacle to employment.” The appellant contends that the board improperly discharged the Special Fund since there is evidence indicating knowledge by the employer of the hearing condition and also that it contributes to the resulting disability. There are two issues here — the employer’s knowledge of the permanency of the pre-existing impairment and whether that impairment may be considered as a hindrance to the claimant’s employment. Apparently the board determined both questions against the appellant since its decision mentions both without specifying either one as the reason for denying the claim for reimbursement. It would seem that the board could find that the employer did not continue the claimant in employment with knowledge that he had a permanent impairment which was a hindrance to his employment. Although the employer’s doctor knew the claimant was hard of hearing he never examined the claimant for that condition or communicated the fact that in his opinion it was permanent to his superior. While the claimant testified the employer was aware of the condition this, of course, does not mean he was aware of its permanency. There are several eases indicating that the employer must be in a position to make an “informed judgment” as to the permanency of the employee’s impairment and the board could certainly find that such was not the case here (Matter of Weinberger v. A. Zeibert & Sons, 2 A D 2d 908; Matter of Vance v. Ormsby, 6 A D 2d 960). The question of whether the hearing condition was such as to be a hindrance to the claimant’s employment would seem to be a close one but again it was a question of fact for the board. In Matter of Torelli v. Robert Hall Clothes (9 A D 2d 147) a loss of hearing was involved and it was pointed out that where the effect of the condition is fairly debatable the decision lies in the area of fact-finding. In our view the effect of the condition here was debatable and the board’s decision should not be disturbed. Decision unanimously affirmed, with costs to the Special Disability Fund under subdivision 8 of section 15, against the self-insured employer.

In two related proceedings pursuant to Social Services Law § 384-b to terminate the mother’s parental rights on the ground of mental illness, the mother appeals from two orders of fact-finding and disposition (one as to each child) of the Family Court, Kings County (Elkins, J.), both dated September 27, 2005, which, after a fact-finding hearing, inter alia, terminated her parental rights and transferred custody and guardianship of the children to the Commissioner of Social Services of the City of New York and Little Flower Children’s Services for purposes of adoption. Ordered that the orders are affirmed, without costs or disbursements. The petitioner agency established by clear and convincing evidence that the mother, presently and for the foreseeable future, will be unable, by reason of mental illness, to provide proper and adequate care for her children (see Social Services Law § 384-b [4] [c]; Matter of Michael W., 15 AD3d 670, 670-671 [2005]). After interviewing the mother and reviewing her medical records and case history, the court-appointed clinical psychologist testified that the mother suffers from “psychotic disorder NOS,” i.e., a psychotic disorder “not otherwise specified.” The psychologist opined that, if returned to the mother, the children would be at risk of being neglected in the present and foreseeable future, because of the mother’s mental illness, her lack of insight about it, and her refusal to seek treatment. This evidence supported the Family Court’s determination (see Matter of Dederia S.C., 26 AD3d 375 [2006]; Matter of Karyn Katrina D., 19 AD3d 592 [2005]; Matter of Julia P., 8 AD3d 389 [2004]). Crane, J.R, Florio, Fisher and Dickerson, JJ., concur.

Appeal from an order denying application for a writ of habeas corpus. On October 18, 1949, while represented by counsel, the defendant pled guilty to robbery, third degree, and was sentenced as a second offender to Sing Sing *561Prison for a term of 19-20 years. Prior to the sentence, he was charged by information with being a second offender and acknowledged through his attorney and himself that he was the same person as mentioned in the information and accordingly guilty. Upon an arraignment, pursuant to section 1943 of the Penal Law, the only issue to be determined is that of identity. After his plea herein and before sentence a colloquy took place between the court, defendant and his attorney, the reading of which leads to the inevitable conclusion that the defendant was well aware of the criminal procedure and what took place on this particular occasion. The Attorney-General raised among other defenses that the issue had been previously decided by the Bronx County Court. It is not necessary to reach that issue as we conclude the defendant was not entitled to the benefits of habeas corpus. We have determined prior hereto that failure to specifically follow the statute (§ 1943) is not a jurisdictional defect or a constitutional deprivation and that habeas corpus is not the proper remedy. (People ex rel. Zindelka v. McMann, 8 A D 2d 646, motion for leave to appeal denied 7 N Y 2d 706.) Order unanimously affirmed.

Appeal by the employer and carrier from an award of disability compensation based upon a finding of occupational disease, i.e., tuberculosis. There is substantial evidence that claimant sustained an occupational disease arising out of and in the course of her employment with causally related disability. The real contention of appellants is that the disease was not contracted within 12 months previous to the date of disablement, and that therefore the award is barred by section 40 of the Workmen’s Compensation Law. While the board agrees that more than 12 months elapsed between contraction and the date which it fixed as the date of disablement, it has held that the employer has waived the provisions of section 40, or is estopped from asserting them, because it knew or should have known from early X rays that claimant had contracted the disease and failed to advise her thereof. Claimant had worked for the employer off and on for about eight years, having resigned on several occasions for personal reasons, unrelated to the disease, and after a substantial interval was re-employed. She was therefore not in the continuous employ of the employer. Her last employment began on October 15, 1954, and ended on October 20, 1954, upon the discovery from X rays that she was suffering from tuberculosis. The board has fixed the last day of her employment, October 20, 1954, as the date of disablement. Upon viewing the very plain evidence of disease in the last X rays, the routine X rays taken in 1950 and 1951 were re-examined, and it was determined in retrospect that they too showed the presence of tuberculosis, although the spots were somewhat obscured by shadows of the sternum and ribs. It thus became apparent that claimant had contracted the disease well over 12 months prior to October 20, 1954, although both she and the employer were unaware of it. Unlike provisions relating to claim filing, waiver and estoppel have no application to the provisions of section 40. The provisions of that section are an absolute legislative jurisdictional prerequisite to compensation for an occupational disease, and may not be waived or ignored. (Matter of Cerame v. Midland Rochester Co., 276 App. Div. 243.) The award upon the present findings must therefore be reversed. Proper evidence may or may not show that actually the date of disablement was earlier than that fixed by the board. While ordinarily the date of disablement coincides with the cessation of work or inability to earn full wages, such is not the case under any and all circumstances. *562Section 37 of the Workmen’s Compensation Law is not that rigid. (Matter of Cole v. Saranac Lake Gen. Hosp., 282 App. Div. 626.) Award reversed, with costs to appellants against the Workmen’s Compensation Board, and the matter remitted to the board.

In related custody proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Richmond County (Porzio, J.), dated October 17, 2005, which, after a hearing, inter alia, denied his petition, in effect, for custody, or alternatively, unsupervised visitation, awarded custody of the parties’ children to the mother, and awarded him supervised visitation once per month. Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Richmond County, for further proceedings in accordance herewith; and it is further, Ordered that pending a new determination of the father’s petition for custody and unsupervised visitation, the subject children shall remain with the mother. “Family Court Act § 262 provides certain parties to particular Family Court proceedings with a statutory right to counsel. If the party in question falls within one of the enumerated subdivisions thereto, he or she must be advised by the court, before *770proceeding, that he or she has the right to representation, the right to seek an adjournment to confer with counsel and the right to assigned counsel if he or she cannot afford to retain counsel” (Matter of Wilson v Bennett, 282 AD2d 933, 934 [2001]). The deprivation of a party’s fundamental right to counsel in a custody or visitation proceeding requires reversed, without regard to the merits of the unrepresented party’s position (see Matter of Knight v Griffith, 13 AD3d 449 [2004]; Matter of Wilson v Bennett, supra; Matter of Dominique L.B., 231 AD2d 948 [1996]; Matter of Patricia L. v Steven L., 119 AD2d 221 [1986]; Matter of Orneika J., 112 AD2d 78, 80 [1985]). Here, the petitioner clearly fell within one of the enumerated subdivisions of Family Court Act § 262 since he sought custody, or alternatively, unsupervised visitation. The Family Court thus erred in failing to properly advise him of his right to counsel. Accordingly, we reverse the order appealed from and remit the matter to the Family Court, Richmond County, for a new hearing at which the father will be fully advised of his right to counsel pursuant to Family Court Act § 262 and for such further proceedings as may be necessary, including a new determination of the father’s petition. Mastro, J.E, Krausman, Florio and Balkin, JJ., concur.

Appeal by Special Fund for Reopened Cases from a decision of the Workmen’s Compensation Board which held that payments made by the carrier, for permanent partial disability during the period July 25, 1952-January 3, 1955, when claimant was actually employed at full wages, did not constitute payment of com*563pensation made within three years of the reopening of the ease on August 23, 1957, within the meaning of section 25-a of the Workmen’s Compensation Law; the decision thus relieving the carrier and imposing liability upon appellant Special Fund in accordance with subdivision 1 of section 25-a. A decision in 1950 made an award to June 16, 1950 and closed the case after establishing permanent partial disability. The carrier continued payments thereafter (cf. Workmen’s Compensation Law, § 25, subd. 1) until discovering that the claimant had been working whereupon it applied for permission to suspend payments (Rules and Procedure of the Workmen's Compensation Board, rule 22, subd. [c]) which was granted by decision of January 12, 1955. This was followed by a decision of February 18, 1955 which made an award for the period June 16, 1950-July 25, 1952, less payments made, found no reduced earnings after July 25, 1952 and again closed the case. In 1957 the ease was reopened because of a change of condition and there followed an award and the decision appealed from. “ Compensation ” is defined by subdivision 6 of section 2 as “ the money allowance payable to an employee ” as provided for in the act. The “ date of the last payment of compensation ”, from which the three-year limitation runs (§ 25-a, subd. 1) is defined by subdivision 7 of the same section as “ the date of actual payment of the last installment of compensation previously awarded”. Respondent carrier contends that its payments of compensation after June 21, 1950 were made “ in accordance with ” the decision of that date which rendered operative section 25 (subd. 1, par. [a]) requiring such payments “ without waiting for an award by the board, except in those eases in which the right to compensation is controverted by the employer.” By subdivision (e) of rule 22 the carrier was forbidden to suspend payments for permanent partial disability until the determination of an application for reopening to be made by it. Nevertheless, we do not consider that the decision, even when coupled with the statute and complemented by the rule, must he deemed an award, either within the intendment of subdivision 7 of section 25-a or with such effect as to stamp all payments thereunder as “ payment[s] of compensation ” until a formal redetermination, upon a changed factual situation, shall be made. The decision, while establishing partial disability, did not award future compensation; the actual award for the correct 1950-1952 period was made in 1955. Claimant’s entitlement to future “ payment[s] of compensation ”, therefore depended not on the decision but upon continued proof of the impairment of her earning capacity or, as this case eventuated, upon her actual earnings. Thus, it cannot be said that the payments made by the carrier after claimant commenced to earn full wages retained their character as compensation (i.e., for diminished earning capacity) by virtue of a prior decision or award valid until rescinded. The authorities upon which appellant relies seem not in point. Matter of Burns v. Anstice Co. (5 A D 2d 895), indeed, serves to emphasize one basis of our decision in this case, as there we said, “ Whatever might have been the effect of the 1952 payment standing alone, the 1953 payments were clearly of compensation for which an award had been made”. (Emphasis supplied.) Similarly, in Matter of Adams v. Aluminum Co. of America (282 App. Div. 1088) the critical payment was indisputably of compensation to which the claimant was entitled. Matter of Schneider v. Durst Mfg. Co. (265 App. Div. 1022) held nothing more than that the furnishing of a medical appliance constituted the payment of compensation. Matter of Reed v. Danz Constr. Co. (9 A D 2d 1004) was concerned with the meaning of the term “payment” as used in section 25-a and whether a “payment” was made, not, as here, with the problem of whether a payment, concededly *564made, was of compensation. Decision and award unanimously affirmed, with costs to respondents carrier and employer against appellant.

Proceeding pursuant to CPLR article 78 to review a determination of Patchogue-Medford Union Free School District dated March 23, 2004, which adopted the recommendation of a hearing officer, made after a hearing, finding that the petitioner committed misconduct, and terminated the petitioner’s employment. *771Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs. In June 2003 two adult students of the Adult Education Program conducted by Patchogue-Medford Union Free School District (hereinafter the UFSD), reported to their instructor that the petitioner, an employee of the UFSD, initiated sexually explicit conversations with them and offered to perform certain sexual acts. As a result, the UFSD charged the petitioner with 18 specifications of misconduct pursuant to Civil Service Law §75. After a hearing, 17 of the 18 charges were sustained, the hearing officer recommended that the petitioner’s employment be terminated, and the UFSD terminated the petitioner’s employment. The petitioner commenced this article 78 proceeding, contending that he was deprived of adequate notice of the charges against him, that the charges were not supported by substantial evidence, and that termination was too severe a penalty. Here, the statement of charges was sufficient to give the petitioner notice of the charges against him and allow him to present a defense. Civil Service Law § 75 requires that “[a] person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefore, [and] shall be furnished a copy of the charges preferred against him” (Matter of Fitzgerald v Libous, 44 NY2d 660, 660-661 [1978]). Additionally, the charges must be reasonably specific in light of the circumstances, which include “whether the interval ascribed for a particular offense is so excessive on its face that it is unreasonable; whether the respondent has exerted diligent efforts to state the time more specifically; and whether, under the circumstances, the designated period is reasonable” (Matter of Jeanotte v City of Rochester Police Dept., 110 AD2d 1081, 1082 [1985]). Given the petitioner’s repeated contacts and conversations with the students, the charges against the petitioner identifying the relevant time period as May to June 2003 and Fall 2002 were adequate. Because the UFSD also provided him with the content of these conversations, the exact nature of his alleged misconduct was known to him as well. There is substantial evidence in the record to establish that the petitioner, who held the position of custodial worker I, initiated sexually explicit conversations and offered to perform sexual acts with two adult students of the Adult Education Program conducted by the UFSD in the Fall of 2002, May 2003, and June 2003 (see Matter of Pell v Board of Educ. of Union *772Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230 [1974]). Additionally, it was the hearing officer’s role “to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject” (Matter of Sahni v New York City Bd. of Educ., 240 AD2d 751, 751 [1997]). In this regard, it was proper for the hearing officer to find the testimony of the two students to be credible, while finding the petitioner’s testimony and that of his wife to be less than credible. Prior to the preferment of the charges against the petitioner, he had an unblemished 19-year record with the UFSD. His evaluations were good to excellent over his years of service, and he received letters of commendation from the UFSD’s superintendent of schools. Additionally, his conduct, while inappropriate and embarrassing to the adult students, did not endanger any minor children. His conduct also did not prevent them from attending class, nor did it involve any physical assault. Nonetheless, we are constrained by the Court of Appeals’ decisions in Matter of Waldren v Town of Islip (6 NY3d 735 [2005]), and Pell v Board (supra) not to disturb the UFSD’s determination, as it cannot be said as a matter of law that the penalty imposed on the petitioner herein, termination, is “so disproportionate to the offense as to be shocking to one’s sense of fairness” (Waldren, supra at 736-737, quoting Pell v Board, supra at 237). In Waldren, the Court of Appeals held that, in the context of a 30-year career that was otherwise unblemished, an employee’s use of his office computer to view internet pornography was sufficient to warrant termination. In view of such precedent, we cannot conclude that termination of the petitioner’s employment was so disproportionate to the offense as to be shocking to one’s sense of fairness (see Matter of Waldren v Town of Islip, supra at 736-737; Matter of Schnaars v Copiague Union Free School Dist., 275 AD2d 462, 463 [2000]). Schmidt, J.E, Skelos, Lifson and Covello, JJ., concur.

Appeal from orders of the Supreme Court, Clinton County, denying a motion for permission to file an amended notice of claim and denying a motion for reargument. The appellant Bertha Ayotte is alleged to have sustained injuries in a fall on a stairway in a building owned by the respondent Board of Education on June 28, 1958. On July 8, 1958 her son reported the accident to a Mrs. Goff, the secretary to the Superintendent of Schools. He did this orally giving her his mother’s name, address, the place of the accident, the nature of injuries as bruises and the name of the doctor to whom his mother was taken after the accident. This information was written down by Mrs. Goff who notified the respondent’s insurance carrier. The accident was investigated by the insurer and its representative called on Mrs. Ayotte but did not find her home and left his card. Mrs Ayotte then contacted the investigator who was to call on her again but never did. Sometime thereafter Mrs. Ayotte’s son was informed that the insurance company was not going to pay anything. In February, 1959 the appellant moved to amend the notice of claim which was alleged to have been served on July 8, 1958. The court below denied the motion holding that the papers did not reveal that any actual written notice of claim was served. On the motion for reargument the court stated that the information given to Mrs. Goff was at best a report of an accident and held that neither the existence of a written notice of claim nor service on a proper party was demonstrated. As a condition precedent to suit against a municipal corporation such as the respondent a written notice of claim must be served within 90 days after the accident in accordance with section 50-e of the General Municipal Law. Subdivision 6 of section 50-e provides that mistakes or irregularities in a notice of claim which do not pertain to the manner or time of service may be corrected, supplied or disregarded. Here the irregularities clearly evolve from the manner of service and the difficulty with the appellants’ position is the lack of a notice of claim which could be amended. A primary requisite is that the claim be in writing and the oral accident report certainly falls short of this. The appellants cite no ease in which an oral notice of claim has ever been sustained. Even this oral accident report gave no indication that it was a claim or that the appellants intended to file a claim. In addition the notice of claim must be served on a member of the board of education, a trustee or the clerk. Not only was there no service here, there being nothing in writing to serve, but further the person to whom the alleged notice was given was not a proper person to receive service. While this result may seem harsh since an investigation was made by the respondent’s insurer shortly after the accident, nevertheless, there has been such a complete failure to follow the statutory requirements that it is not possible to hold that a proper notice of claim was served. Orders unanimously affirmed, without costs.

Appeal by the relator from an order of the Clinton County Court which dismissed a writ of habeas corpus. The relator was indicted for the crimes of assault, second degree, abduction and rape, first degree, tried, convicted of all three and sentenced respectively on those counts on June 24, 1946 to 5 to 10 years, 10 to 20 years, and 20 to 40 years as a second offender with the sentences to run consecutively. The relator based his petition on the ground that the consecutive sentences imposed double punishment for what constituted a single act. The indictment charged that the assault in violation of subdivision 3 of section 242 of the Penal Law was committed in Albany on March 27, 1946 by imposing grievous bodily harm upon one Marian Williams by striking her about the head and face with his fist. The abduction in violation of subdivision 3 of section 70 was alleged to have been committed by taking the same person on the same day from Albany to the Town of Colonie with the intent to compel her against her will and by force to be defiled and the rape was alleged to have been committed on the same person the same day in the Town of Colonie, her resistance being prevented by fear of bodily harm which she had reasonable cause to believe as a result of the assault previously committed and threats then made to inflict further harm with a knife. The relator’s petition is clearly premature in that he does not question the court’s power to sentence him for one crime, the highest grade of offense charged, and accordingly his maximum sentence for the crime of rape will not expire until 1986. Additionally habeas corpus is not this relator’s remedy at this time. If he feels the sentence is excessive he can apply to the sentencing court. Order unanimously affirmed.

Appellants appeal from award which assessed 50% liability against the employer and carrier, it being their contention the record fails to substantiate that claimant sustained a second accident on their premises on October 8, 1957. The claimant was president of both the appellant and respondent corporation employers and in complete charge of various businesses. 'The Raymac Cabinet Company was the manufacturer and the Filray Corporation the selling agency. On the record as developed before the board, it was justified in finding against both carriers. Through a series of errors on the part of appellant employer, reports were made that the accident occurred on October 8. Various doctors either through the claimant’s reports or otherwise testified that the accident or accidents involved happened on that date. Although letters were written by the appellant to disregard the earlier reports, it was not until a hearing held on December 5, 1958, subsequent to the medical testimony, that the claimant in his testimony attempted to clarify the situation. As a result of this testimony it seems reasonable to assume that the correct sequence of events was that the claimant was first injured on October 1 while moving some cabinets at the respondent Filray premises, as a result of which he developed severe pain in his back which necessitated his going home. Several days thereafter, to wit, October 8, while still confined to his bed, he received a call from the appellant Raymac Cabinet Company requesting that he come there to aid in straightening out some orders and samples. He went to the premises where he remained for two or three hours; that he was suffering pain when he arose from bed and that *565after being at the appellant premises for some time he developed further pain which necessitated his returning home to bed and thereafter the services of his attending physician. There was substantial evidence to sustain the board’s memorandum as to the October 1 accident. The testimony as to the accident on October 8 is very limited due primarily to the confusion as to the dates of the accidents but we are satisfied that the evidence is sufficient to sustain the board’s memorandum that he sustained his second injury to his back on October 8 while employed at the premises of appellant Raymae Cabinet Company. Decision and award unanimously affirmed, with cost to the respondents against the appellants.

Appeal 'by the employer Benjamin Di Corrado, doing business as Di Corrado Construction Co. and its carrier from a decision of the Workmen’s Compensation Board. The sole issue involved in this appeal is who was the claimant’s employer at the time of the accident. Although the issue is clear we are presented with a rather confusing record. The claimant in filing his claim stated that when the accident happened on March 5, 1956 he was employed by the Comeau Building Corp. The Comeau Building Corp. was made up of Charles W. Comeau and Charles M. Comeau and Benjamin Di Corrado. Claimant testified he was working on a job building a fence around the house of one Nicholas Cusenza, a brother-in-law of Charles M. Comeau. He stated that he had been hired by Charles M. Comeau and his brother-in-law who had paid him for the previous week’s work. A eoemployee, one Eddie Capone, testified that he was working for Charles M. Comeau and that the brother-in-law had paid him. It appears that the Comeau Building Corp. stopped doing business in January or February, 1956 when it got into financial difficulties and lawsuits between the Comeaus and Di Corrado arising out of the corporation were constantly popping up in the compensation hearings and interfering with the orderly hearing of the claim. Charles M. Comeau testified that he had not hired the claimant but that he had been hired by Di Corrado. Cusenza testified that he had hired Di Corrado to do the work and had paid him $200 on account. Di Corrado testified that although the claimant worked for him after his accident, he was not working for him at the time of the accident. He stated that he himself was hired as a laborer by Cusenza but denied receiving any money. The Referee pointedly commented, “ One is lying ”. The Referee eventually determined that Benjamin Di Corrado doing business as Di Corrado Construction Co. was the employer and the board affirmed. The appellants contend that substantial evidence does not support the 'board’s decision. The claimant himself maintained that he had been hired by Comeau and Cusenza although his testimony is very confusing due at least in part to language difficulty. At one point he admitted having worked for Di Corrado between February 6 and March 6, 1956. Cusenza testified that he hired Di Corrado to do the job and made a partial payment on account to him and it would seem that this was sufficient to create a question of fact for the board. This pure question of fact has been determined by the board upon the evidence they found to be credible and its decision should not be disturbed. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

In a proceeding, inter alia, pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of North Salem dated April 14, 2005, which granted the application of the respondents John Pezzillo and Michele Pezzillo for area variances, the petitioners appeal from a judgment of the Supreme Court, Westchester County (Dillon, J.), entered August 29, 2005, which denied the petition and dismissed the proceeding. Ordered that the judgment is affirmed, with costs. “Local zoning boards are vested with broad discretion in considering applications for area variances, and judicial review of their determinations is limited to whether the action taken was illegal, arbitrary and capricious, or an abuse of discretion” (Matter of Shokrian v Zoning Bd. of Appeals of City of Long Beach, 32 AD3d 961, 961 [2006]). A zoning board’s determination is to be upheld if it has a rational basis (see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]). We note, as did the Zoning Board of Appeals of the Town of North Salem (hereinafter the Zoning Board), that no appeal was taken from the merger determination of the Zoning Board dated December 9, 2004. Contrary to the appellants’ contention, the Zoning Board properly applied Town Law § 267-b (3) (b) in considering the application of the respondents John J. Pezzillo and Michele Pezzillo for area variances. Its determination granting the area variances had a rational basis and was not illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Sasso v Osgood, 86 NY2d 374, 384 [1995]; Matter of Shokrian v Zoning Bd. of Appeals of City of Long Beach, supra at 962). The appellants’ remaining contentions are without merit. Crane, J.P, Goldstein, Fisher and Lifson, JJ., concur.

Appeals by plaintiffs from judgments of the Supreme Court, Fulton County, entered upon verdicts for plaintiffs (for $1,500 in the case of Arthur Brooker and for $200 in the case of Gerald Brooker, Jr.) in personal injury negligence actions, and from orders denying motions to set aside said verdicts as inadequate. *566Plaintiff Arthur Brooker’s right hand was caught in the car door. His attending physician found a fracture of the thumb, to which a splint was applied for about four weeks; he “assumed” a fracture of one rib which was strapped for 10 or 12 days and bandaged for a time thereafter; and found an injury in the metacarpal area of the hand which he treated with injections between the joints and with diathermy for an extended period. Four months after the accident, the physician referred plaintiff to an orthopedist who found swelling of the entire metacarpal area, some restriction of intra-metacarp al motion and (upon X-ray) an avulsion fracture involving a very small segment of bone adjacent to the first bone in the middle finger. He recommended repeated injections of hydrocortisone and exercise. On re-examination 17 months after the accident, his objective findings were the same, he noted weakness of the finger muscles and testified to permanent partial disability consisting of limitation of ability to straighten the middle and ring fingers and weakness of abduction or finer hand movements. The attending physician testified on the trial (a few days after the specialist’s re-examination) that there remained nothing radically wrong with the hand except a grip less than that of the left hand. Although defendants’ medical expert three months after the accident found no permanency he offered little specific factual contradiction of the clear and convincing findings of the orthopedist and, indeed, contented himself largely with the observation that the hand was “ functionally fairly normal ”. In our view, it could not properly be found, as suggested by respondents, that the condition was due to one of the other accidents disclosed on the trial. There was, however, a substantial issue as to whether plaintiff was actually or regularly employed as a weaver in a carpet factory, such work apparently paying substantial wages and, also, requiring frequent use of the hand in cutting with scissors. At the time of the accident he had been laid off for some time and he offered no evidence as to his earnings from the odd jobs at which he worked after the accident. The finding, implicit in the verdict, of no substantial loss of earnings cannot, therefore, be disturbed. Otherwise, however, the verdict was clearly inadequate. Plaintiff’s medical expenses were $408. In our view, he was fairly entitled to recover $3,000. Plaintiff Gerald Brooker, Jr. sustained an injury to his ankle; he was directed by his physician to use crutches and did so for two or three weeks. The jury was not bound to find the back strain which was alleged. His medical expenses were $178. His supposed loss of earnings is questionable. A verdict of less than $750 seems to us inadequate. We have considered appellants’ contentions, additional to that of inadequacy, and find no error of sufficient substance to require a new trial in any event. Judgment and order in each action reversed, on the law and the facts, and a new trial ordered, with costs to appellants, unless, within 20 days after service of a copy of the order to be entered hereon in each appeal, the defendants shall (in either or both actions) stipulate to increase the verdict, that in the Arthur Brooker action to the sum of $3,000 and that in the Gerald Brooker, Jr., action to the sum of $750, in which event the judgment in each action in which the verdict is so increased is affirmed, with costs to appellant.

*774Proceeding pursuant to CPLR article 78 to review a determination of the respondents, dated May 2, 2005, which, after a hearing, terminated the petitioner’s employment. Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs. The petitioner, Annmarie Considine, had been employed as a word processing office assistant by the District Attorney, Westchester County (hereinafter the County), for eight years, and worked in its Mount Vernon office since the end of 2002. On July 19, 2004 she was served with a notice of discipline charging her with two specifications of misconduct and incompetence by the County. Specification 1 alleged misconduct based on Considine’s excessive absenteeism since February 1, 2003. Specification 2 alleged that Considine abandoned her job on or about April 19, 2004, by failing to report to work after the conclusion of her four-month leave of absence. Considine claimed that she was physically unable to work because of several operations she had to relieve carpal tunnel syndrome. A hearing was held. Considine failed to demonstrate any efforts to avail herself of any rights she may have had pursuant to Civil Service Law §§ 71, 72, and 73. Moreover, she failed to show any authorization for her absences after April 19, 2004. After the hearing, the charges were sustained, and Considine’s employment was terminated. After a Civil Service Law § 75 hearing, a municipal employee may be terminated for incompetence and misconduct due to excessive absences caused by physical incapacity (see Cicero v Triborough Bridge & Tunnel Auth., 264 AD2d 334, 336 [1999]; Matter of Garayua v Board of Educ. of Yonkers City School Dist., 248 AD2d 714 [1998]). Considine’s contention that Civil Service Law § 72 barred this proceeding because her absenteeism was caused by her physical incapacity is without merit. Civil Service Law § 72 requires a finding that the employee is medically incapable to perform his or her job functions. Once such a find*775ing of unfitness has been made, the employee is given a leave of absence. In order for Civil Service Law § 72 to apply, Considine would be required to demonstrate that she was physically or mentally incapable of performing her duties after a medical examination. Since there was no such finding of unfitness, the statute is not applicable (see Matter of Abdalla v Fulton County, 208 AD2d 1168 [1994]). Rather, the issue was “whether [the employee’s] unreliability and its disruptive and burdensome effect on the employer rendered [the employee] incompetent to continue his [or her] employment” (Matter of Romano v Town Bd. of Town of Colonie, 200 AD2d 934 [1994]; see also Matter of McKinnon v Board of Educ. of N. Bellmore Union Free School Dist., 273 AD2d 240, 241 [2000]). Therefore, the Civil Service Law § 75 hearing was the proper means to adjudicate the incompetency charges based on Considine’s excessive absences. The findings were supported by substantial evidence (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230 [1974]). It is undisputed that Considine never returned to work after her leave of absence ended on April 18, 2004 and never requested any extension of the leave of absence. She also never communicated directly with the County to inform her supervisor as to when she would return. Additionally, she reported to work a total of only 50 days between February 1, 2003 to July 19, 2004, which equaled an 85% absentee rate for that period. The penalty of dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness (id. at 233). Considine’s remaining contention is without merit. Mastro, J.E, Goldstein, Lifson and Garni, JJ., concur.

Appeal by Ruberoid and its carrier from decision of the Workmen’s Compensation Board which found them partly liable for compensation payments to claimant. The claimant sustained injuries to his back on July 21, 1953 and March 30, 1954 while working for A. O. Smith Corp., respondent herein. Subsequently, while working for the appellant Ruberoid on June 12, 1955 and on December 8, 1955, he allegedly sustained further back injuries. The Referee determined the subsequent injuries were all associated with the original injury of July 21, 1953 but, on review, the board *567modified that .decision and found the disability was causally related to each of the accidents and assessed 25% against each. The claimant testified at considerable length to the various happenings to his back commencing in 1953 and culminating in December, 1955. He was asked on cross-examination: “ Q. And after the December [1955] incident both legs were much worse? A. And my neck and arms, upper back, lower back.” While there was some variance as to the medical reports filed, the record supports the factual finding of a fourth accident and medically that each accident caused further complaints relating to his back condition. One of the doctors stated that all of the incidents were incidental and that he could not say that any one of them was entirely responsible for the complaints of the claimant following the December, 1955 incident. In a recent ease, Matter of Hogan v. Weldmaster Co. (11 A D 2d 557) we discussed back injury cases and the difficulty which arises as to whether subsequent incidents are new accidents or aggravations associated with the primary injury and the category applicable is usually governed by the factual situation in the individual cases. Here, while the fourth accident (Dec. 8, 1955) was not reported by the claimant as such, he was never thereafter able to return to his work, except for one day, of which the employer had knowledge and his testimony as to accident and resulting physical complaints amply supported the findings of the board. If there is substantial evidence to support such factual findings, the determination of the board is final. (Matter of Palmero v. Gallucci, 6 A D 2d 911, affd. 5 N Y 2d 529.) Decision and award of the Workmen’s Compensation Board unanimously affirmed, with costs to the respondent A. O. Smith Corp. and Employers Mutual Liability Insurance Company against the appellants.

In a proceeding pursuant to General Municipal Law § 50-e, inter alia, for leave to serve a late notice of claim, Nassau *776County Health Care Corporation, Nassau University Medical Center, Elsie Santana-Fox, Dr. White, and Maiquel Carrasco appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered October 6, 2005, as granted that branch of the petition which was for leave to serve a late notice of claim on behalf of the infant petitioner. Ordered that the order is affirmed insofar as appealed from, with costs. The infant petitioner allegedly sustained severe brain damage during her delivery on August 10, 2001 at the hospital of the appellant Nassau University Medical Center. The petitioners did not serve a notice of claim until July 14, 2003 and they waited until February 2005 before seeking an order, inter alia, for leave to serve a late notice of claim. In determining whether to grant an application for leave to serve a late notice of claim, a court should consider, inter alia, (1) whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, (2) whether the claimant is an infant or physically or mentally incapacitated, (3) whether the claimant demonstrated a reasonable excuse for the delay in serving a notice of claim, and (4) whether the delay would substantially prejudice the municipality in maintaining its defense on the merits (see General Municipal Law § 50-e [5]; Matter of Narcisse v Incorporated Vil. of Cent. Islip, 36 AD3d 920 [2007]; Nardi v County of Westchester, 18 AD3d 521, 522 [2005]). Whether to grant a petition for leave to serve a late notice of claim is committed to the sound discretion of the Supreme Court (see Matter of Presley v City of New York, 254 AD2d 490 [1998]). Here, the Supreme Court providently exercised its discretion in granting the infant petitioner’s application for leave to serve a late notice of claim. The appellants possessed the infant petitioner’s medical records, which documented her injuries at birth, the care given to her, the procedures performed, and the time of the alleged malpractice. Therefore, the appellants had actual notice of the essential facts underlying the claim (see Nardi v County of Westchester, supra; Montero v New York City Health & Hosps. Corp., 17 AD3d 550 [2005]; Matter of West v New York City Health & Hosps. Corp., 195 AD2d 517, 518 [1993]; Matter of Tomlinson v New York City Health & Hosps. Corp., 190 AD2d 806 [1993]; cf. Williams v Nassau County Med. Ctr., 6 NY3d 531 [2006]). Moreover, in light of the appellants’ actual knowledge of the essential facts constituting the claim, *777there is no substantial prejudice to their maintaining a defense (see Matter of Vasquez v City of Newburgh, 35 AD3d 621 [2006]; Matter of Tapia v New York City Health & Hosps. Corp., 27 AD3d 655, 657 [2006]). Furthermore, the infant petitioner provided a reasonable excuse for the delay (see Matter of McLaughlin v County of Albany, 258 AD2d 778, 779 [1999]). The appellants’ remaining contentions on appeal do not require a different result. Crane, J.P., Florio, Fisher and Dickerson, JJ., concur.

Appeal by an insurance carrier from a decision of the Workmen’s Compensation Board which imposed an award upon respondent employer Office Temporaries and relieved respondent Oxford Paper Company. Respondent Office Temporaries argues in support of the decision which its carrier contests. Office Temporaries is in the business of furnishing temporary workers to businesses. It pays all wages, making all tax, disability, unemployment and social security deductions and provides workmen’s compensation insurance as well as certain voluntary benefits. The customer agrees not to appropriate to his own employment persons thus furnished. The employee furnishes time sheets to Office Temporaries which bills the customer weekly. Office Temporaries has the right to discharge, to transfer and otherwise to control the persons furnished. Respondent Oxford Paper Company had about 95 employees of its own but sometimes obtained temporary workers from Office Temporaries who furnished claimant for temporary work as a secretary for about two days per week. Claimant had previously been assigned by Office Temporaries to some 50 other customers. Claimant was injured while at work on Oxford Paper Company’s premises. The case is directly in point with Matter of Meyer v. Tops Temporary Personnel (286 App. Div. 1048). Decision and award unanimously affirmed, with one bill of costs to respondents filing briefs.

In a proceeding pursuant to Election Law article 16, inter alia, to compel the respondents to provide the petitioners with copies of all absentee ballot applications in advance of the special election to be held on February 6, 2007, for the public office of Member of the New York State Senate from the 7th Senatorial District, and to afford the petitioners the opportunity to interpose and preserve objections to those applications prior to February 6, 2007, the petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated January 23, 2007, as denied those branches of their petition which were to compel that relief. Ordered that the order is affirmed insofar as appealed from, without costs or disbursements. “An ‘appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment’ ” (Wisholek v Douglas, 97 NY2d 740, 742 *778[2002], quoting Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). However, appellate courts “have discretion to review a case if the controversy or issue involved is likely to be repeated, typically evades review, and raises substantial and novel questions” (Wisholek v Douglas, supra at 742, citing Matter of Hearst Corp. v Clyne, supra at 714-715; see Iafrate v Suffolk County Bd. of Elections, 42 NY2d 991, 992 [1977]; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556, 559 [1976]; Matter of Avella v Batt, 33 AD3d 77, 80 [2006]; Matter of Brown v Appelman, 241 AD2d 279, 282 [1998]; Matter of Robison Oil Corp. v County of Westchester, 236 AD2d 542, 543 [1997]; Matter of Angell v Ferris, 227 AD2d 475, 476 [1996]). While the special election at issue occurred on February 6, 2007, we decline to dismiss the appeal as moot, as the issue presented is likely to recur, it will typically evade review, and it is an issue that has not been considered previously by this Court and its determination may have far-reaching implications for the manner in which challenges to absentee ballots are issued, and applications therefor are reviewed (see Iafrate v Suffolk County Bd. of Elections, supra at 992; Matter of Carr v New York State Bd. of Elections, supra at 559; Matter of Avella v Batt, supra at 80; see generally Wisholek v Douglas, supra at 742; Matter of Hearst Corp. v Clyne, supra at 714-715; Matter of Brown v Appelman, supra at 282; Matter of Robison Oil Corp. v County of Westchester, supra at 543; Matter of Angell v Ferris, supra at 476). “Any action Supreme Court takes with respect to a general election challenge must find authorization and support in the express provisions of the [Election Law] statute” (Matter of Delgado v Sunderland, 97 NY2d 420, 423 [2002] [internal quotation marks omitted]; see Matter of Flood v Schopfer, 20 AD3d 417, 419 [2005]; Matter of Mondello v Nassau County Bd. of Elections, 6 AD3d 18, 21 [2004]). Contrary to the contention of the petitioners, who are the Chairman of the Nassau County Democratic Committee and a candidate for the office of Member of the New York State Senate from the 7th Senatorial District, there is no express provision in the Election Law providing for the relief they seek. Election Law § 8-402 (7) provides for the production and disclosure, upon request, of “a complete list of all applicants to whom absentee voters’ ballots have been delivered or mailed, containing their names and places of residence . . . including the election district . . . and in the city of New York and the county of Nassau, the assembly district.” As the Supreme Court found, this provision is both specific and limiting in the disclosure contemplated, and it does not authorize the dissemination to the petitioners of copies of all absentee *779ballot applications submitted in this special election. Contrary to the petitioners’ contention, the provision of Election Law § 16-106 (1) which authorizes a challenge to original absentee voter’s ballot applications does not implicitly provide them with the right to review or acquire copies of all absentee voter’s ballot applications; as previously stated, any action taken by the Supreme Court with respect to a general election challenge must find support and authorization in the express provisions of the Election Law (see Matter of Delgado v Sunderland, supra at 423; Matter of Flood v Schopfer, supra at 419; Matter of Mondello v Nassau County Bd. of Elections, supra at 21). Fisher, J.E, Dillon, Garni and McCarthy, JJ., concur.

Appeal from decision of the Workmen’s Compensation Board which found claimant to be widow of deceased employee. The marriage between the claimant and decedent took place in 1952 and the parties lived together until January, 1958, when the claimant separated from her husband because he would get drunk almost every weekend and come home and beat her. There was no decree or agreement as to the separation and albeit the decedent had sought a reconciliation, the claimant had refused to return and live with him. At the time of the compensation hearing the claimant was pregnant as the result of illicit relations with another man which had occurred during the lifetime of her husband. The board determined claimant had not abandoned her husband within the meaning of subdivision 1-a of section 16 of the law but found she was justified in separating from him. The pertinent part of the above section reads as follows: “ the term surviving wife shall be deemed to mean the legal wife of the deceased but shall not include a wife who has abandoned the deceased, and (3) the term abandoned shall be deemed to mean such an abandonment as would be sufficient under section eleven hundred sixty-one of the civil practice act to sustain a judgment of separation on that ground.” The board has factually determined that there was justification for the claimant leaving decedent and although it appears she did not intend to return to him, that there was no abandonment. The acceptance or rejection of this testimony goes to the credibility of the witness, which determination is solely within the province of the board. Whether there was an abandonment under the facts was likewise a question for the board and with its factual determination we will not interfere. It should be noted the appellants offered no evidence as to any of the factual issues. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

In a proceeding pursuant to CPLR article 75 to confirm an arbitration award which, inter alia, directed the respondent, Lawrence Public Schools, to cease and desist from violating a provision of a stipulation between the parties dated May 23, 2002, which required the respondent to designate members of the petitioner’s bargaining unit to perform special education services outside of the geographical boundaries of the school district, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Palmieri, J.), entered April 3, 2006, which denied the petition and dismissed the proceeding. Ordered that the order and judgment is affirmed, with costs. The enforcement of the provision of the stipulation of settlement dated May 23, 2002 between the petitioner and the respondent Lawrence Public Schools, requiring the respondent to designate members of the petitioner’s bargaining unit for special education services delivered outside the geographical boundaries of the respondent was contrary to Education Law former § 3602-c (2) (L 1990, ch 53, § 49) in effect at the time of the al*780leged violations of the stipulation. That statutory provision required the respondent to “contract with the school district in which the nonpublic school attended by the pupil is located, for the provision of services pursuant to this section.” Since the arbitration award was contrary to well-defined statutory law, it violated public policy and therefore was unenforceable (see Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y, 1 NY3d 72, 80 [2003]; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 6-7 [2002]). Submitting the dispute to arbitration did not authorize the arbitrator to fashion an award which violated public policy (see Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 418 [1978]; Matter of Union Free Dist. #15, Town of Hempstead v Lawrence Teachers Assn., 33 AD3d 808 [2006]). Crane, J.E, Goldstein, Fisher and Lifson, JJ., concur.

Appeal from an order of the County Court of Clinton County which sustained a writ of habeas corpus “ to the extent that ” relator was directed to be remanded for resentence for the felony to which he pleaded guilty on May 14, 1941 and for which he was resentenced as a third felony offender; the order reciting as *569the basis for this relief its determination that relator’s resentence upon one of the prior convictions used to constitute him a multiple offender was invalid for failure of compliance with section 480 of the Code of Criminal Procedure and that such prior conviction “ should not be considered as a' prior felony conviction". The prior adjudication was properly considered as constituting relator a multiple offender and while it remains in force no infirmity in the sentence affords ground for an attack upon the sentence under which relator is presently held. (People ex rel. Emanuel v. McMann, 7 N Y 2d 342; People ex rel. Egitto v. Jackson, 7 A D 2d 808, motion for leave to appeal denied 5 N Y 2d 711, cert. denied 360 U. S. 906.) Order reversed, on the law and the facts, and writ dismissed, without costs.

Appeal from an order denying an application for a writ of habeas corpus. The relator sought to be resentenced as a first offender contending that at the time of his sentence in 1934 the court failed to comply with section 480 of the Code of Criminal Procedure in not asking him if there was any legal cause why sentence should not be pronounced against him. There is submitted a certified copy of the statement taken prior to sentencing on January 12, 1934 in the Kings County Court which after setting forth various answers to questions contained therein, there is the following: “Being asked and he having nothing to say why the judgment of the law should not be pronounced against him, the Court pronounced Judgment as follows”. It further appears that at the time of sentencing the defendant was represented by counsel. The stenographic minutes of the 1934 proceedings are not before this court. As we have stated on numerous occasions the failure of compliance does not vitiate the judgment of conviction but entitled the prisoner to resentencing after compliance. The record further disclosed that a prior application for a writ of habeas corpus on the same grounds (Code Crim. Pro., § 480) had been granted, a hearing held at which the prisoner was present, after which the writ was dismissed. Order unanimously affirmed.

In a proceeding pursuant to SCPA 2110 to fix an attorney’s fee, Robert J. Piterniak appeals from a decree and judgment (one paper) of the Surrogate’s Court, Suffolk County (Czygier, S.), dated September 9, 2005, which, upon, inter alia, fixing the petitioner’s attorney’s fee in the sum of $97,810 and its disbursements in the sum of $5,011.11, and directing the executor of the estate of Ellen Piterniak to pay the sum of $87,821.11 to the petitioner from Robert J. Piterniak’s share of the estate, is in favor of the petitioner and against Robert J. Piterniak in the principal sum of $87,821.11. Ordered that the decree and judgment is modified, on the law, by deleting the fourth decretal paragraph thereof, without prejudice to the petitioner’s right to seek such relief from the appellant as may be appropriate if the sums due to the petitioner cannot be satisfied from the estate; as so modified, the judgment and decree is affirmed, with one bill of costs to the appellant. The petitioner attorney represented Robert J. Piterniak in the underlying proceeding to probate the last will and testament of Ellen Piterniak. Thus, the Surrogate’s Court had jurisdiction to hear the petitioner’s application to fix and determine its attorney’s fees and recoverable disbursements for services rendered to Robert J. Piterniak in connection with that underly*781ing proceeding (see SCPA 2110 [1]; Leder v Spiegel, 31 AD3d 266 [2006]; Matter of Levine, 262 AD2d 80 [1999]). The Surrogate’s directive that the executor of the estate of Ellen Piterniak must pay, to the petitioner, such fees and recoverable disbursements from Robert J. Piterniak’s share of the estate was proper (see SCPA 2110 [2]). The Surrogate bears the ultimate responsibility of deciding what constitutes reasonable legal fees, regardless of the existence of a retainer agreement (Matter of Pekofsky v Estate of Cohen, 259 AD2d 702 [1999]; Matter of Schwartz, 235 AD2d 482 [1997]; Matter of Nicastro, 186 AD2d 805 [1992]). The Surrogate is in the best position to assess and consider the necessary factors in fixing and determining an attorney’s fee, such as the reasonable value time, effort and skill actually required and time expended (see Matter of Freeman, 34 NY2d 1; Matter of Gluck, 279 AD2d 575 [2001]; Matter of Nicastro, supra). Under the circumstances, we perceive no basis upon which to disturb the Surrogate’s determination with respect to attorney’s fees and recoverable disbursements. However, the fourth decretal paragraph of the judgment and decree, in effect entering a money judgment for that sum in favor of the petitioner and against Robert J. Piterniak, improperly permitted the petitioner to obtain a double recovery of its fees and disbursements, and must be vacated, without prejudice to the petitioner’s right to seek such relief from the appellant as may be appropriate if the sums due to the petitioner cannot be satisfied from the estate. The appellant’s remaining contentions are either unpreserved for appellate review or without merit. Schmidt, J.R, Skelos, Lifson and Covello, JJ., concur.

Appeal from a decision of the Workmen’s Compensation Board which found accident and causal relation in a heart case. On April 15, 1958 claimant went to work and early in the morning while climbing a ladder, slipped, falling to the floor and was struck in the chest “ pretty hard ” by the ladder and immediately thereafter felt chest pains. He left his employment, went home, a doctor was summoned who diagnosed Ms condition as “ acute myocardial, infarction The doctor testified the man was very sick and it was some time before he was able to know what happened but as soon as he was informed of the incident he filed a report which was dated April 30. The plant superintendent of the employer testified that several days after April 15 the son of the claimant came to Mm and reported that when his father was able to speak, he said something about falling. The record as a whole substantiates the happening of the accident. The medical testimony was in dispute but was ample to support the finding that the incident aggravated and was a contributing factor in the myocardial infarction suffered by claimant. The credibility of the witnesses was solely for the decision of the board and having decided the facts in claimant’s favor, there was substantial evidence to support such findings. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.