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Appeal from a judgment of the Supreme Court (Egan, Jr., J.), entered July 14, 2006 in Ulster County, which dismissed *1032petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules. During a visit with a female visitor, petitioner became disruptive and demanded that he be let out of the special housing unit visiting room. After a correction officer directed him to calm down and have a seat, he became further infuriated and threw chairs at the windows, causing the glass to break and to injure other officers. Petitioner then kicked out the broken glass and threatened to kill those outside the room. When the door was eventually opened, he pushed his way out and struck a correction officer with a chair. As a result, petitioner was charged in a misbehavior report with assaulting staff, making threats, creating a disturbance, engaging in violent conduct, refusing a direct order and damaging state property. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding challenging the determination. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensue. Upon reviewing the record, we find that petitioner’s procedural challenges are without merit. Contrary to petitioner’s claim, he was provided meaningful employee assistance insofar as he was given the requested documentation that existed (see Matter of Crosby v Selsky, 26 AD3d 571, 572 [2006]). Notably, at the hearing, the Hearing Officer gave petitioner an opportunity to review photographs and injury reports, which he did not request of his assistant. As far as his contention that his assistant failed to interview inmate witnesses present in the visiting room, petitioner withdrew this challenge at the hearing. In sum, petitioner has not established that his employee assistant was inadequate or that he was prejudiced by any alleged deficiencies (see Matter of Claudio v Selsky, 4 AD3d 702, 703 [2004]; Matter of Russell v Selsky, 305 AD2d 844, 844 [2003], lv denied 100 NY2d 510 [2003]). In addition, while petitioner asserts that he was denied the testimony of a mental health professional regarding his mental state, the Hearing Officer questioned this individual at length on this subject in camera. Petitioner’s remaining contentions, to the extent they are properly before us, are unavailing. Cardona, P.J., Peters, Spain, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

*1033Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner’s application for accidental disability retirement benefits. Petitioner worked as a senior court officer and was assigned to Supreme Court in Kings County. On April 5, 1995, he was escorting a handcuffed criminal defendant in the courtroom when the defendant had a seizure and fell to the floor causing petitioner, whose arm was interlocked with the arm of the defendant, to also fall and to injure his right shoulder and neck. Petitioner had surgery but eventually returned to work 22 months later. Then, on November 21, 2003, petitioner and other officers had to subdue another criminal defendant who had become unruly in the courtroom. As petitioner and another officer were escorting the struggling defendant down the hall and through a doorway, the defendant shoved petitioner against a fixed door, causing him to injure his shoulder, neck, arm and back. Petitioner did not return to work thereafter and filed an application for accidental disability retirement benefits claiming injuries to his neck, back, both shoulders and left elbow resulting from both incidents. Following a hearing, a Hearing Officer denied petitioner’s application on the basis that the incidents in question did not constitute accidents within the meaning of the Retirement and Social Security Law. Respondent Comptroller upheld the finding and this CPLR article 78 proceeding ensued. We confirm. Under the Retirement and Social Security Law, an accident has been defined as a “ ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ ” (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982], quoting Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 6 AD2d 97, 100 [1958], affd 7 NY2d 222 [1959]). Significantly, “[t]he precipitating event must emanate from a risk that is not an inherent element of the petitioner’s *1034regular employment duties” (Matter of Amadio v McCall, 2 AD3d 1131, 1132 [2003]). Here, petitioner’s regular job duties entailed, among other things, escorting criminal defendants in the courtroom and physically restraining unruly individuals. Petitioner was engaged in these duties during both of the incidents in question. The fact that the individual he was escorting on April 5, 1995 had an unexpected seizure does not make that incident an accident. Likewise, although there is evidence from which it could be inferred that petitioner was assaulted when shoved by the defendant on November 21, 2003, this does not negate the Comptroller’s finding that petitioner was injured while restraining a combative defendant (see Matter of Ammann v New York State Comptroller, 13 AD3d 858, 859 [2004], lv denied 5 NY3d 702 [2005]). Consequently, we find no reason to disturb the Comptroller’s determination. Mercure, J.P, Peters, Spain, Carpinello and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 13, 2005, which ruled, inter alia, that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct. Claimant worked as a medical secretary in the pathology department of a hospital. In August 2004, the employer approved her request to take the day after Thanksgiving off as a vacation day. Later, however, the employer rescinded the approval because claimant had used all of her vacation time. Claimant was warned that if she took that day off, her employment would be terminated and, when she did not report to work on that day, she was discharged. Following two hearings, the Unemployment Insurance Appeal Board ruled, among other things, that claimant was disqualified from receiving unemployment insurance benefits because she was terminated due to misconduct. Claimant now appeals. We affirm. The testimony provided by the employer’s representatives at the hearings establishes that claimant failed to report to work without authorization, which has been held to constitute disqualifying misconduct (see Matter of Graham *1035[Commissioner of Labor], 305 AD2d 926 [2003]; Matter of Albanese [Commissioner of Labor], 304 AD2d 945, 946 [2003]). There also is no merit to claimant’s assertion that she was improperly denied the opportunity to cross-examine her supervisor at the hearing in violation of 12 NYCRR 461.4 (c). The Administrative Law Judge (hereinafter ALJ) at the first hearing specifically asked claimant on two occasions if she wished to cross-examine the supervisor. Although the transcript states that claimant’s responses were inaudible, it is clear from the context of her exchange with the ALJ, and the fact that the ALJ proceeded to take her testimony, that claimant elected not to question the supervisor. Significantly, when the supervisor was recalled, the ALJ again asked claimant if she had any questions, to which claimant gave an unequivocal negative response. Claimant’s remaining claim that the ALJ at the second hearing did not properly develop the record is unpersuasive. Mercure, J.E, Crew III, Mugglin, Rose and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

Mugglin, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner’s application for accidental disability retirement benefits. Petitioner, a police officer, while searching a split-level private residence for a possible intruder, injured his lower back and right knee when he stumbled down a set of stairs leading to the lowest level of the residence. Petitioner testified that he stumbled because the edge of the landing protruded about three inches over the first step and this condition was disguised because the three-inch lip was painted the same color as the steps. A fellow officer, who followed petitioner into the area, testified that petitioner stumbled because the top step riser was only half the height of the remainder of the stairs. In his application for retirement benefits, petitioner states, “I started to walk into the basement and caught [my] right foot on short step landing.” In his workers’ compensation claim he reported that he “tripped [and] fell on [a] faulty interior stairway.” Moreover, *1036petitioner testified that in the performance of his routine duties over the years, he had encountered thousands of stairways, many of which were substandard or defective. The Hearing Officer, concluding that petitioner had failed to demonstrate that the incident constituted an accident within the meaning of the Retirement and Social Security Law, denied his application. Respondent upheld that determination, prompting this CPLR article 78 proceeding. We confirm. Pursuant to the Retirement and Social Security Law, an accident is a “ ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ ” (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982], quoting Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 6 AD2d 97, 100 [1958], affd 7 NY2d 222 [1959]). Therefore, an injury will not be considered accidental when it emanates from activities undertaken in the performance of regular job duties (see Matter of Kesch v Hevesi, 28 AD3d 1056, 1056-1057 [2006]; Matter of O’Shei v Hevesi, 26 AD3d 585, 586 [2006]; Matter of Lucian v McCall, 7 AD3d 905, 906 [2004]). On this record, we defer to respondent’s credibility determinations and find that substantial evidence supports the determination that petitioner was injured by his own misstep, and did not suffer an accident within the meaning of the Retirement and Social Security Law (see Matter of Hamilton v Hevesi, 28 AD3d 965, 966 [2006]). Cardona, PJ., Mercure, Carpinello and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Lahtinen, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner’s application for accidental disability retirement benefits. Petitioner, a police officer, suffered a fracture of his left knee following an April 1998 accident. He thereafter returned to *1037work in various restricted-duty positions, the most current of which was a property clerk. Alleging that he was not able to carry out all of his normal functions as a police officer, petitioner subsequently applied for accidental disability retirement benefits. Respondent, determining whether petitioner was permanently incapacitated from employment on the basis of his ability to perform his restricted-duty assignment, disapproved the application. Petitioner requested a hearing and redetermination resulting in the Hearing Officer’s conclusion that petitioner did not establish that he was permanently disabled. Respondent upheld that determination and this CPLR article 78 proceeding ensued. We confirm, as substantial evidence in the record supports respondent’s determination that petitioner was not incapacitated from performing his restricted-duty work. Petitioner’s focus at the hearing was on his inability to perform full-duty assignments although he had been on restricted duty continuously for more than three years prior to his May 2003 application for accidental disability retirement benefits. Significantly, the medical records submitted by petitioner in support of his application contained an opinion from an orthopedic surgeon that he was “able to do light duty” (see 2 NYCRR 364.3 [b]; Matter of Calisi v McCall, 289 AD2d 676, 677 [2001]; Matter of Zajdowicz v New York State & Local Police & Fire Retirement Sys., 267 AD2d 863, 865 [1999]). To the extent that the record contains conflicting medical evidence as to petitioner’s ability to perform his restricted duties, respondent was free to weigh the evidence and credit respondent’s proof (see Matter of Scheuring v New York State Comptroller, 32 AD3d 1127, 1128 [2006]; Matter of Hoehn v Hevesi, 14 AD3d 761, 762 [2005], lv denied 4 NY3d 708 [2005]). Petitioner’s remaining contention regarding respondent’s purported improper refusal to consider certain diagnostic test results has been examined and rejected. Crew III, J.P, Mugglin, Rose and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

*1038Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 9, 2005, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed. Claimant was the named president of WW Rebar Corporation, a contracting firm. He was also employed as a laborer by the company. He twice applied for and received unemployment insurance benefits. Ultimately, the Unemployment Insurance Appeal Board found claimant ineligible to receive unemployment insurance benefits on the ground that he was not totally unemployed. He was also charged with a recoverable overpayment of benefits and assessed a forfeiture penalty of benefit days upon a finding that he had made willful false statements to obtain benefits. It was noted that not only was claimant the president of the company, but also that he had taken business expense deductions on his personal income tax returns. On the question of willfulness, it was determined that when claimant certified that he was not working, he knew that he was the president of the company and had performed services for it. Claimant appeals. We affirm. It is well settled that a claimant who is a company officer and performs business-related activities on behalf of an ongoing corporation is not considered totally unemployed even if no income is received (see Matter of Singer [Commissioner of Labor], 30 AD3d 928, 929 [2006]). The issue is whether the claimant stands to benefit financially from the continued operation of the company (see Matter of Schmidt [Commissioner of Labor], 7 AD3d 899, 899-900 [2004], lv denied 3 NY3d 612 [2004]). The deduction of business expenses on a personal income tax return may constitute disqualifying income (see Matter of Singer [Commissioner of Labor], supra at 929). Here, even accepting that claimant received no direct compensation from the company, he did take business deductions on his income tax returns. Although claimant denied knowing that he took such deductions or that he performed services for the company, the Board refused to credit the denials. The evaluation of claimant’s testimony and the inferences to be drawn therefrom were within the exclusive province of the Board (see Matter of De Maria [Commissioner of Labor], 276 AD2d 1010, 1010-1011 [2000]). Under these circumstances, there is substantial evidence to support the Board’s decision that claimant was not totally unemployed. We also find substantial evidence to support the finding of willfulness. Claimant acknowledged that he had received and *1039read the Department of Labor’s handbook informing him that he had to report whether he was involved in a business or corporation. Even if claimant’s reasons for not reporting his involvement with the company could be accepted, it was still his responsibility to disclose all information that might be relevant to a receipt of benefits (see Matter of Gross [Hudacs], 195 AD2d 742, 742 [1993]). Finally, claimant’s contentions regarding the manner in which the hearings on his case were conducted have been examined and found unavailing. There was no denial of due process, nor did the Administrative Law Judge improperly assume the role of prosecutor (see Matter of Boudreau [Commissioner of Labor], 253 AD2d 939, 939 [1998]). As for any support for the argument that this Court should consider evidence not offered at the hearings or that it should order a rehearing, we note that claimant’s proper remedy is to apply to the Board, which may, in its discretion, hold further hearings (see Labor Law § 621 [3]; Matter of Miller [Commissioner of Labor], 9 AD3d 567, 568 [2004]). Claimant’s remaining contentions have been examined and found to be without merit. Spain, J.E, Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 24, 2005, which ruled that claimant was ineligible to receive unemployment insurance benefits because he did not comply with certification and registration requirements. Claimant was terminated from his position as a security officer on April 17, 2003 and, on September 15, 2004, applied for unemployment insurance benefits over the Internet. He claims to have used the Internet to certify for benefits on a weekly basis thereafter. The Unemployment Insurance Appeal Board, however, ruled that claimant was ineligible to receive benefits from April 20, 2003 through September 12, 2004, September 20, 2004 through September 26, 2004, September 27, 2004 through October 31, 2004 and December 13, 2004 through December 19, 2004 because he did not comply with registration and certification requirements required by Labor Law § 596. Claimant appeals. We affirm. “It is well settled that registering and certifying *1040for benefits in accordance with the Labor Law and the applicable regulations is a necessary prerequisite to. eligibility for benefits” (Matter of Newman [Commissioner of Labor], 23 AD3d 816, 816 [2005] [citations omitted]; see Labor Law § 596; 12 NYCRR 473.1, 473.2, 473.3; Matter of Weier [Commissioner of Labor], 30 AD3d 951, 952 [2006]). Whether a claimant has demonstrated good cause excusing noncompliance with these requirements is a factual issue for the Board to resolve (see 12 NYCRR 473.1 [g]; 473.2 [e]; Matter of Weier [Commissioner of Labor], supra at 952; Matter of Newman [Commissioner of Labor], supra at 816). Claimant’s preferred excuses for failing to comply with the registration and certification requirements were rejected by the Administrative Law Judge as incredible. As part of its fact-finding function, the Board was entitled to discount claimant’s testimony and conclude that he did not have good cause for failing to comply with the necessary requirements. Accordingly, substantial evidence supports its decision (see Matter of Larkin [Commissioner of Labor], 12 AD3d 829, 830 [2004]). Cardona, P.J., Mercure, Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

Lahtinen, J. Appeal from a decision of the Workers’ Compensation Board, filed November 21, 2005, which ruled that the death of claimant’s decedent was not causally related to his employment. Decedent, claimant’s husband, collapsed at work and died shortly thereafter of coronary artery disease. Because decedent was at work and the incident was unwitnessed, his death was presumed to have been causally related to his employment (see Workers’ Compensation Law § 21 [1]). The self-insured employer initially failed to rebut that presumption (see Matter of Babson v Finch Pruyn & Co. Inc., 25 AD3d 936, 937 [2006]), resulting *1041in an award, of benefits to claimant. Upon the employer’s application for review, however, that determination was rescinded by the Workers’ Compensation Board, which restored the case to the trial calendar for consideration of a report submitted by the employer’s medical expert. The subsequent uncontroverted testimony by the employer’s medical expert that “[t]here was no causal relation between decedent’s work activities and his death” provided the primary basis for a decision disallowing the claim. That decision was affirmed by the Board, prompting this appeal. We affirm. Where, as here, a presumption of compensability arises out of an incident that occurs during the course of employment, the employer is entitled to overcome that presumption through the submission of “substantial evidence to the contrary” (Matter of Pinto v Southport Correctional Facility, 19 AD3d 948, 949-950 n 1 [2005]). In addition to testimony offered by the employer’s medical expert, the record contains the affidavit of the pastor of the church where decedent was employed relating that shortly before he left for work on the morning he died, decedent had complained to claimant of dizziness, cold sweats and pain in his left shoulder to such an extent that claimant had asked him to go to the hospital. Furthermore, the evidence suggests that decedent performed little, if any, strenuous activity while at work on the morning of his demise and his autopsy report revealed no indication of new or acute damage to his heart. Inasmuch as the Board’s decision rests on medical evidence which includes the observation that decedent’s death “resulted from his underlying condition and could have occurred at any time under any circumstances,” we decline to disturb it (see Matter of MacDonald v Penske Logistics, 34 AD3d 967 [2006]). We have considered claimant’s remaining arguments and find them to be without merit. Crew III, J.E, Peters, Mugglin and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

Rose, J. Appeal from a judgment of the Supreme Court (Mc-Dermott, J.), entered March 7, 2006 in Madison County, which, in a combined proceeding pursuant to CPLR article 78 and plenary action, granted respondents’ motion to dismiss the petition/complaint. *1042In 2003, respondent Colgate University adopted a program requiring existing fraternities and sororities to sell their chapter houses to the university. Colgate also declared that if the houses were not sold by a stated deadline, it would withdraw recognition of the fraternity or sorority and prohibit its students from residing in them. When the local Mu chapter of Delta Kappa Epsilon (hereinafter DKE) failed to sell and Colgate withdrew recognition of that fraternity, petitioners commenced this combined CPLR article 78 proceeding and plenary action seeking annulment of DKE’s loss of recognition and money damages. Respondents moved to dismiss the petition/complaint for failure to state a cause of action and as time-barred. Supreme Court agreed with respondents as to both grounds for dismissal and granted their motion. Petitioners now appeal. Petitioners do not dispute that a four-month statute of limitations is applicable to their combined action/proceeding (see CPLR 217 [1]; Matter of Riverkeeper, Inc. v Crotty, 28 AD3d 957, 959 [2006]), and the record supports Supreme Court’s determination that their claims are time-barred. The four-month limitations period begins to run when the mandate being challenged becomes “final and binding” as to the complaining party (see Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005]). “[F]inal and binding” contemplates that the agency has reached a definitive position, there will be no further change of that position and the petitioner has no opportunity to avoid injury other than by complying with the agency’s demands (see id. at 34; Matter of Properties of New York, Inc. v Planning Bd. of Town of Stuyvesant, 35 AD3d 941, 942 [2006]). The record here reflects that Colgate took a definitive position as to the loss of recognition in June 2004, and DKE’s time to agree to a sale and avoid the loss of recognition expired on November 30, 2004. Thereafter, by a letter issued on December 9, 2004, Colgate notified petitioners that fraternities which had not conveyed their chapter houses would not be recognized and could no longer house university students following the end of the school year. We agree that this letter made Colgate’s determination to withdraw recognition final and binding as to DKE, inasmuch as no further administrative remedy was available and nothing short of DKE’s capitulation could have avoided it. Since petitioners did not commence this combined action/proceeding until November 9, 2005, it clearly was untimely. In view of this determination, petitioners’ remaining contentions are academic. Mercure, J.P., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, with costs.

Cardona, PJ. Appeal from an order and judgment of the Supreme Court (Kramer, J.), entered January 6, 2006 in Schenectady County, which awarded plaintiff $750,000 in punitive damages from defendant William J. Schady, III. Defendant William J. Schady, III (hereinafter defendant), a pharmacist, pleaded guilty to criminally negligent homicide based on his admission that he left an unsecured vial containing valium and codeine in a duffle bag on a floor where it was accessible to his girlfriend’s two-year-old child who found and ingested the substances, resulting in the child’s death. Plaintiff, the child’s father, commenced this action against defendant, among others, and, upon defendant’s default, Supreme Court awarded plaintiff $75,000 in compensatory damages, $250,000 for conscious pain and suffering and $1,000,000 in punitive damages. Defendant unsuccessfully moved to vacate the default judgment. On his appeal from that order, this Court reversed the punitive damages award and remitted the matter for a new inquest on that issue only (13 AD3d 1028 [2004]). Following the inquest, Supreme Court awarded plaintiff $750,000 in punitive damages. Defendant now contends that the award was unwarranted or, in the alternative, excessive. We disagree and affirm the award. Punitive damages may be awarded where a defendant’s conduct, even though unintentional, is “grossly negligent, or wanton or so reckless as to amount to a conscious disregard of the rights of others” (Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, 201 [1990]; see Trudeau v Cooke, 2 AD3d 1133, 1134 [2003]; Rinaldo v Mashayekhi, 185 AD2d 435, 436 [1992]). The purpose of punitive damages goes beyond simply punishing the perpetrator for the morally culpable act committed (see Home Ins. Co. v American Home Prods. Corp., supra at 203), but is also intended to deter repetition of such acts (see State Farm Mut. Automobile Ins. Co. v Campbell, 538 US 408, 416 [2003]; BMW of North America, Inc. v Gore, 517 US 559, 568 [1996]). Here, defendant’s recklessness in leaving narcotics unsecured *1044and within easy reach of a two-year-old child led directly to the child’s death, a consequence within defendant’s specialized knowledge as a licensed pharmacist. Although at the inquest he denied committing the acts to which he admitted in the criminal proceeding, the transcript of his plea allocution was received into evidence and credited over his self-serving contentions at the inquest. We find no reason to disturb Supreme Court’s credibility determination (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]). Furthermore, we note that after surrendering his license in New York, defendant continues to work as a pharmacist in New Jersey, placing him in continuing proximity to narcotics. Under all the circumstances, an award of punitive damages is appropriate to punish defendant and deter repetition of the conduct committed here. In evaluating the reasonableness of the award, we consider, as we must, “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded . . . and the civil penalties authorized or imposed in comparable cases” (State Farm Mut. Automobile Ins. Co. v Campbell, supra at 418; see BMW of North America, Inc. v Gore, supra at 575-576). On the first prong, we look again to the unconscionable, indeed criminal, negligence of a licensed pharmacist fatally exposing a two-year-old child to narcotics which, during his plea allocution, he admitted that he was fully aware would probably kill a child if ingested. This conduct unquestionably “evinced an indifference to or a reckless disregard of the health or safety of others” (State Farm Mut. Automobile Ins. Co. v Campbell, supra at 419). On the second prong, we note that the punitive damages award is less than three times the amount awarded for the actual harm suffered by plaintiff and the child; in our view, an acceptable ratio (see State Farm Mut. Automobile Ins. Co. v Campbell, supra at 425; BMW of North America, Inc. v Gore, supra at 581). And on the third prong, we are satisfied that the award is not so exorbitant as to show that it was “actuated by passion” (Nardelli v Stamberg, 44 NY2d 500, 504 [1978] [internal quotation marks and citation omitted]; see e.g. Brown v LaFontaine-Rish Med. Assoc., 33 AD3d 470 [2006]; Bondi v Bambrick, 308 AD2d 330, 331 [2003]; cf. Launders v Steinberg, 39 AD3d 57, 69 [2007]). Accordingly, we do not find the award to be excessive. Mercure, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the order and judgment is affirmed, with costs.

In an action for specific performance of an agreement to assign a patent (1st cause of action) and for a declaratory judgment or for reformation of an agreement and a general release (2d cause of action), plaintiff appeals: (1) from an order of the Supreme Court, Nassau County, dated March 29, 1960, granting defendant’s motion to dismiss the first cause of action pursuant to subdivision 6 of rule 107 of the Rules of Civil Practice, on the ground that the claim set forth in such cause of action has been released; and to dismiss the second cause of action pursuant to subdivisions 1 and 4 of rule 106 of the Rules of Civil Practice, on the ground that the complaint does not state facts sufficient to constitute a cause of action and on the ground that the court does not have jurisdiction of the subject of the action; and (2) from the judgment entered April 6, 1960, on said order, dismissing the complaint. Judgment and order reversed, with $10 costs and disbursements, and motion denied. On the record presented, it may not be determined summarily that the claim asserted in the first cause of action has been released. As to the second cause of action, in our opinion it is sufficient as a pleading, and the court has jurisdiction of the subject of the action. Nolan, P. J., Beldock, Ughetta, Pette and Brennan, JJ., concur.

Peters, J. Appeal from a judgment of the Supreme Court (Stein, J.), entered April 10, 2006 in Albany County, which dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Department of Correctional Services finding that petitioner Delores Coleman was not psychologically qualified for the position of a correction officer. Petitioner Delores Coleman (hereinafter petitioner), a correction officer with respondent Department of Correctional Services (hereinafter respondent), was injured on February 13, 2003 in an off-duty automobile accident. When her absence exceeded one year, respondent informed her that as of February 17, 2004, she would be terminated pursuant to Civil Service Law § 73. She was, however, permitted to apply for reinstatement within one year. On or about June 1, 2004, petitioner applied for reinstatement, proffering documentation from two physicians confirming that she was able to return to work without restriction. Pursuant to Civil Service Law § 73, petitioner had to be evaluated as to whether she was physically and mentally fit to perform the essential duties of a correction officer. The psychological component of that evaluation was performed by Law Enforcement Psychological Services, Inc. (hereinafter LEPS), a testing service used by respondent. While petitioner was initially determined to be both physically and mentally fit to return to her position, information later provided to LEPS by respondent resulted in a revised evaluation finding her “poorly suited.” LEPS opined that based upon its new information, petitioner’s responses to specific questions during that psychological interview raised significant concerns about her judgment and integrity. Petitioners appealed that decision without success. This CPLR article 78 proceeding was then commenced to vacate respondent’s determination. Supreme Court dismissed the petition and this appeal ensued. “ ‘[I]n a proceeding seeking judicial review of [an] administra*1046tive action, the court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the [determination] or whether it is arbitrary and capricious’ ” (Matter of 310 S. Broadway Corp. v McCall, 275 AD2d 549, 550 [2000], lv denied 96 NY2d 701 [2001], quoting Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363 [1987]; accord Matter of Fortune v State of N.Y., Div. of State Police, 293 AD2d 154, 157 [2002]). Here, Civil Service Law § 73 required petitioner to apply for a medical evaluation to determine her physical and mental fitness to perform the duties of her former position. Petitioner contends that, to make that determination, respondent incorrectly utilized the standard required of a new correction officer outlined in Correction Law § 8. We disagree. While prior to 2004, a correction officer seeking reinstatement was examined solely to determine whether the disability still existed, by January 2004, respondent changed the medical evaluation processing of correction officer reinstatements to mirror the processing of correction officer trainee candidates. Correction Law § 8 (2) states that all applicants for the position of correction officer must undergo a psychological evaluation to determine if they are “suffering from psychotic disorders, serious character disorders, or other disorders which could hinder performance on the job [and] may be deemed ineligible for appointment.” Hence, respondent had the statutory authority under Civil Service Law § 73 to determine if petitioner was mentally fit to return to her position as a correction officer and its use of the psychological standards detailed in Correction Law § 8 for that purpose was entirely proper (see Matter of Luscomb v New York State Dept. of Health, 27 AD3d 1038, 1040 [2006]; Matter of Diaz v New York State Off. of Mental Health, 188 AD2d 903, 904 [1992]). Nor do we find that respondent used petitioner’s prior disciplinary record to determine if she was psychologically fit. Instead, LEPS’s recommendation was based upon a review of her responses to certain questions during its evaluation which were now brought into question as a result of her disciplinary record. It found that she either intentionally denied that certain disciplinary actions had been taken or downplayed their significance. For this reason, petitioner’s integrity was questioned due to her lack of candor during that interview. As this determination was supported by record evidence, we decline further review. Finally, while petitioner failed to preserve her claim that she was denied due process (see Matter of Khan v New York State *1047Dept. of Health, 96 NY2d 879, 880 [2001]; Matter of Lamb v Goord, 27 AD3d 807, 808 [2006]), had we addressed the issue, we would have found no error. Once petitioner challenged the evaluation rendered, the record reveals that respondent fully complied with the process for appeals. As to any other contentions raised by petitioner, we find, after a full review, that they are either unpreserved or without merit. Cardona, EJ., Spain, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

In an action by the female plaintiff to recover damages for personal injuries sustained by her when she fell while alighting from defendant’s bus in a bus terminal maintained by defendant, and by her husband to recover *637damages for medical expenses and loss of services, the defendant appeals from a judgment of the Supreme Court, Nassau County, entered January 12, 1960, in favor of plaintiffs, after a jury trial, upon' a verdict of $40,000 for the female plaintiff and $20,000 for her husband. Judgment, insofar as it is in favor of the female plaintiff, affirmed, without costs. Judgment, insofar as it is in favor of the plaintiff husband, Abramo Burchianti, reversed on the facts, and as to said plaintiff the action is severed and a new trial granted, with costs to defendant to abide the event, unless, within 20 days after the entry of the order hereon, the plaintiff husband shall stipulate to reduce the verdict in his favor from $20,000 to $10,000, in which event the judgment, as so reduced, is affirmed, without costs. In our opinion, the verdict in favor of the plaintiff husband is grossly excessive. Kleinfeld, Christ, Pette and Brennan, JJ., concur; Ughetta, Acting P. J., dissents and votes to reverse the judgment and to grant a new trial as to both plaintiffs, on the ground that the verdict as to both is against the weight of the evidence.

Peters, J. Appeal from an order of the County Court of Clinton County (McGill, J.), entered March 30, 2006, which, inter alia, partially affirmed a judgment of the City Court of the City of Plattsburgh in favor of plaintiff. As here relevant, defendant had licensing agreements to operate food and beverage concessions at plaintiffs City Beach recreation complex. In such agreements, plaintiff reserved its right to hold special events or festivals at such complex and, in connection therewith, to allow the special events promoter to sell food and beverages for the duration of the special event without prejudicing defendant’s rights. After plaintiff granted Terrapin Presents, Inc. the right to hold a special event concert at the City Beach complex, a dispute arose between plaintiff and defendant regarding defendant’s rights under these agreements. Defendant alleged that he had an exclusive right to sell certain items and that plaintiff had placed, or allowed to be placed, various barriers preventing free and convenient access to defendant’s concessions. After the concert, defendant stopped all payments to plaintiff. *1048In July 1999, this breach of contract action was commenced by plaintiff in Plattsburgh City Court; defendant counterclaimed for breach of contract. After trial, City Court directed a verdict in favor of plaintiff regarding its collection of all outstanding payments under the agreements and the jury returned a verdict in favor of defendant concerning his breach of contract claim. Cross appeals were filed, resulting in County Court affirming the directed verdict, remanding the issues of counsel fees and interest to City Court for a hearing and reversing the jury verdict and award. Defendant appeals and we affirm. Defendant correctly contends that plaintiffs oral motion for a directed verdict pursuant to CPLR 4401 expressly excluded the issue presented by defendant’s counterclaim, to wit: whether plaintiff breached its contract with defendant. This was an implicit concession that such question was one for the jury (see Miller v Miller, 68 NY2d 871 [1986]). However, when plaintiff made another motion after the verdict, pursuant to CPLR 4404 (a), on the breach of contract claim, it properly preserved its ability to contest defendant’s claim as a matter of law (see CPLR 4404 [a]; Siegel, NY Prac § 405, at 685-686 [4th ed]). Left to assess the contracts at issue, it is settled that a clear and complete agreement will be enforced according to its terms (see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]) and that parole evidence may not be considered until a finding of ambiguity is made by the court (see CV Holdings, LLC v Artisan Advisors, LLC, 9 AD3d 654, 656 [2004]). Here, the “City Beach food, beverage concession license agreement” and the “City vendor licensing agreement for sale of beer, pizza, popcorn,” clearly stated that defendant had a “non-exclusive right” to sell specific goods and services with an “exclusive right to sell [beer, popcorn and pizza] at the Beach vendor pavilion.” Both agreements further contained a “City’s Rights” clause, which stated as follows: “[Plaintiff] maintains the right to hold special events or festivals on the Recreation Complex grounds and facilities without prejudicing the terms of this agreement. The licensee shall have the right to operate per the terms expressed herein during any special event or activity. [Plaintiff] does maintain the right to allow the sale and/or dispensing of food, beverage and/or souvenir items by other parties for the duration of the special event. The licensee has the right to negotiate with the special events promoter to sell/vend product during the special event.” In our view, County Court correctly concluded that the plain language of these agreements unambiguously limited defen*1049dant’s exclusive right to sell beer, popcorn and pizza only in the Beach vendor pavilion and not in the entire City Beach area as he contends. As there is no evidence or allegation that Terrapin used the Beach vendor pavilion for the sale of those items, County Court correctly determined that City Court should have granted plaintiffs motion for a judgment notwithstanding the verdict, as a matter of law, that there was no breach of contract when Terrapin sold those items in areas other than the Beach vendor pavilion. Consideration of any evidence outside of the contract’s clear and unambiguous terms was not appropriate (see CV Holdings, LLC v Artisan Advisors, LLC, supra at 657). Our review also supports a finding that plaintiffs motion for a judgment notwithstanding the verdict on the claim that plaintiff blocked access during this special event should have been granted under the principles enunciated in Cohen v Hallmark Cards (45 NY2d 493 [1978]; see Lolik v Big V Supermarkets, 86 NY2d 744 [1995]; Lawrence v Capital Care Med. Group, LLC, 14 AD3d 833 [2005]). The only evidence of obstruction was fencing permitted by the terms of the parties’ agreements. Testimony by defendant confirmed that the Beach vendor pavilion was unobstructed and that he effectuated sales for the duration of the event, including those to plaintiffs employees for which plaintiff established an account. Nor do we find any error in County Court’s affirmance of the directed verdict for moneys due plaintiff. There is no dispute that defendant occupied the space leased by the agreements, that the agreements established clear payment schedules and that only a partial payment was made by defendant, despite these terms. Viewing plaintiffs summons identifying the action as one for a breach of contract with the allegations in the amended complaint amplifying that claim (see Antokol & Coffin v Myers, 30 AD3d 843, 848 [2006]; see also Ascoli v Lynch, 2 AD3d 553, 555 [2003]), County Court properly affirmed City Court’s grant of plaintiffs motion for a directed verdict on this issue.* County Court’s remand of “the issues of attorney fees and interest” to City Court for “a hearing ... to determine the *1050reasonableness and amount of said claim,” is not ripe for our review. Cardona, EJ., Spain, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed, without costs. There is no merit to defendant’s claim that this award should be deemed abandoned pursuant to 22 NYCRR 210.33 (b). When City Court granted the directed verdict, it was not reduced to a written decision. Since the applicable 60-day time period to submit an order (see 22 NYCRR 210.33 [a]) does not begin to run until “after the signing and filing of the decision directing that the order be settled or submitted” (22 NYCRR 210.33 [a]), there is no violation of that section (see Funk v Barry, 89 NY2d 364, 367-368 [1996]; cf. Citibank v Velazquez, 284 AD2d 364, 364 [2001]).

In an action to recover damages for the wrongful death of plaintiff’s intestate, and for his pain and suffering prior to death, the plaintiff appeals from an order of the Supreme Court, Kings County, dated July 5, 1960, denying her motion to strike out certain items from defendant’s demand for a bill of particulars. Order modified by striking out from its second decretal paragraph the provision which directs plaintiff in the alternative, if she intends to rely on the doctrine of res ipsa loquitur, to state that such is her intention. As so modified, order affirmed, without costs. Plaintiff shall serve her bill of particulars within 20 days after entry of the order hereon. It does not clearly appear from the complaint that upon the trial plaintiff will rely on the doctrine of res ipsa loquitur (cf. Haines v. City of Newburgh, 234 App. Div. 389). The defendant, therefore, is entitled to particulars of the specific acts of negligence alleged in the complaint, as plaintiff will claim them to be (cf. King v. Craddock, 252 App. Div. 719). However, if plaintiff, because of lack of knowledge, is unable to furnish such particulars, she should not be compelled to elect, at this time, to rely on the doctrine of res ipsa loquitur (Haines v. City of Newburgh, supra), although she may do so, if so advised. Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.

In an action to recover damages for personal injuries, plaintiffs appeal from a judgment of the Supreme Court, Kings County, in favor of defendants, entered September 5, 1957, upon a dismissal of the complaint directed by the court at the close of plaintiffs’ case, during a jury trial. Defendants Weiner and defendant Birdoff owned adjoining premises on Clinton Avenue in the Borough of Brooklyn; defendant Capurso was the owner of adjacent premises on Waverly Avenue; and there was, to some extent, a common rear line between the three parcels. There was a fence in the rear of the Capurso property, between his premises and the Clinton Avenue premises, and there was a clothesline pole on the Clinton Avenue side of the fence. The Clinton Avenue properties had a *638common rear yard. The infant plaintiff allegedly was injured because both the fence and the pole swayed and shook and caused him to fall while he was attempting to climb over the fence to go from the Clinton Avenue yard to the Waverly Avenue yard and while he had one foot on a spike in the pole and one foot on the fence. Apparently, the complaint was dismissed against all the defendants on the ground that plaintiffs had failed to prove: (1) on whose property the fence and pole were located, or (2) that those structures were defective or unsafe, or (3) that defendants had notice of the dangerous condition. Judgment, insofar as it dismisses the complaint as against defendants Weiner and defendant Birdoff, affirmed, without costs. Judgment, insofar as it dismisses the complaint as against defendant Capurso reversed, the action severed, and a new trial granted, with costs to plaintiffs to abide the event. The complaint was properly dismissed as to defendant Birdoff, as there was a complete absence of proof that he owned the property on which the fence or the pole was located, or that he exercised any control over those structures. We are also of the opinion that the complaint was properly dismissed as to the defendants Weiner, although not for the reasons apparently assigned by the trial court. (Cf. Ward v. Hasbrouck, 169 N. Y. 407, 420; Erie R. R. Co. v. International Ry. Co., 209 App. Div. 380, 384, affd. 239 N. Y. 598.) As to the Weiner defendants, there was sufficient proof that the pole, at least in part, was on their property; that it was in a decayed and dangerous condition; and that they should have been aware of such condition (cf. Tuttle v. Gold, 3 A D 2d 760). However, the record also establishes that the infant plaintiff was a trespasser or bare licensee on their property, and it is devoid of any proof sufficient to' warrant a finding that they breached a duty owed to him. (Carbone v. Mackchil Realty Corp., 296 N. Y. 154; Nicoletti v. General Linen Supply Laundry Co., 285 App. Div. 957.) In our opinion, however, there was sufficient proof from which the jury could have found: (1) that defendant Capurso exercised dominion and control over the fence and, hence, he was responsible for its condition (cf. Cullings v. Goetz, 256 N. Y. 287, 290; Scudero v. Campbell, 288 N. Y. 328); (2) that the infant plaintiff, his grandson, who resided in said defendant’s building with his mother, was an invitee on the premises to whom said defendant owed the duty of maintaining the premises, including the fence, in a reasonably safe condition (cf. Murtha v. Ridley, 232 N. Y. 488; D’Angelo v. Luray Realty Corp., 272 App. Div. 821, motion for leave to appeal denied 297 N. Y. 1033); (3) that the fence was in a dangerous and defective condition (cf. O’Connor v. Kulerban Holding Corp., 152 Misc. 864, affd. 240 App. Div. 957, affd. 265 N. Y. 461; Brown v. City of New York, 253 N. Y. 552); and (4) that such condition was a proximate cause of the accident (cf. Sweet v. Perkins, 196 N. Y. 482). The complaint, therefore, should not have been dismissed as against defendant Capurso. Nolan, P. J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.

Rose, J. Appeals (1) from a decision of the Workers’ Compensation Board, filed March 18, 2005, which ruled that claimant did not sustain a causally related injury and denied his claim for workers’ compensation benefits, and (2) from a decision of said Board, filed September 19, 2005, which denied claimant’s request for reconsideration or full Board review. On July 14, 2003, claimant, a warehouse worker for a company that imports furniture, submitted a claim for workers’ compensation benefits which alleged that he sustained an occupational disease to his left knee and lower back on July 9, 2003 as a result of the repetitive movement associated with his position. His employer and its workers’ compensation carrier (hereinafter collectively referred to as the employer) controverted that claim, indicating on a C-2 form submitted to the Workers’ Compensation Board on August 7, 2003 that claimant was never injured during the course of his employment but, rather, he was terminated for insubordination and poor job performance on July 9, 2003. A hearing was held before a Workers’ Compensation Law Judge (hereinafter WCLJ) on May 12, 2004, at which time claimant testified that his injury occurred on June 20, 2003 while he was attempting to load a wall unit— which weighed between 400 and 500 pounds—onto a truck. Two of claimant’s coworkers, allegedly involved in moving the wall unit at the time that claimant was injured, were present and prepared to testify at the hearing. However, because no witnesses were present to testify on behalf of the employer, the *1051WCLJ determined that claimant’s uncontroverted testimony was sufficient to establish a work-related injury on June 20, 2003, found the claim to be compensable and awarded him benefits. Additionally, the WCLJ’s notice of decision emphasized the unexplained absence of any witness for the employer and denied the employer a further opportunity to present testimony. The employer’s subsequent application for review of the WCLJ’s decision included an explanation for the absence of its witness. The Workers’ Compensation Board, however, concluded that testimony from the employer’s witness was unnecessary and, based primarily upon inconsistencies between claimant’s testimony and the forms he filed for benefits regarding the date and nature of his injury, the Board reversed the decision of the WCLJ and disallowed the claim. Claimant’s request for reconsideration or full Board review of that determination was denied by the Board, prompting this appeal. Notwithstanding the deference accorded the Board’s assessment of witness credibility, we are unconvinced that the instant record contains substantial evidence supporting its decision (see Matter of Evans v Jewish Home & Hosp., 1 AD3d 736, 738 [2003], lv dismissed 2 NY3d 823 [2004]; Matter of Boone v Orange Steel Erectors, 273 AD2d 629, 630 [2000], lv denied 95 NY2d 769 [2000]). Despite the opportunity to develop a more complete, and, thus, more reliable record, neither the Board nor the WCLJ took advantage of available and relevant witness testimony. Furthermore, while it is certainly within the Board’s province to underscore the significance of claimant’s initial failure to properly designate his injury as the result of an accident on a specific date, as opposed to an occupational disease, the Board here based its decision on conflicting evidence as to when and how claimant was injured and ignored the uncontroverted evidence that he was injured during the course of his employment (see Matter of Flannery v Nassau County Police Dept., 26 AD3d 678, 679 [2006]; compare Matter of Peng Kim v Community Living Corp., 253 AD2d 911, 912 [1998], lv denied 93 NY2d 802 [1999]). Notably, the employer’s medical consultant conceded that claimant’s alleged injury might well have occurred as a result of a work-related incident on June 20, 2003. Inasmuch as the instant record lacks evidence sufficient to rebut the presumptions afforded an employee by Workers’ Compensation Law § 21, we must reverse (see eg. Matter of Camino v Chappaqua Transp., 19 AD3d 856, 856-857 [2005]). Peters, J.E, Mugglin and Lahtinen, JJ., concur. Ordered that the decisions are reversed, without costs, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this Court’s decision.

Per Curiam. Respondent was admitted to practice by this Court in 1963. He maintains an office for the practice of law in the City of Albany. As set forth in the petition of charges and in violation of the Appellate Division disciplinary rules (see Code of Professional Responsibility DR 1-102 [a] [4], [5], [7] [22 NYCRR 1200.3 (a) (4), (5), (7)]), respondent failed to file a proof of service in a personal injury lawsuit that he commenced on behalf of a client in 1993. The failure resulted in the automatic dismissal of the lawsuit under the predecessor to CPLR 306-b then in effect. When respondent discovered the failure in 1998, he misrepresented the status of the lawsuit to his client, and eventually paid her a purported settlement amount from his own funds in 2003. In view of the mitigating circumstances presented, especially respondent’s otherwise distinguished career in private practice and as a public servant and his hitherto unblemished disciplinary record, we conclude that respondent’s misconduct warrants a censure. Mercure, J.P, Peters, Spain, Carpinello and Rose, JJ., concur. Ordered that respondent is found guilty of the professional misconduct charged and specified in the petition of charges; and it is further ordered that respondent is censured.

In an action by the infant plaintiff to recover damages for personal injuries sustained by him, and by his father for medical expenses and for loss of companionship and services, the defendant appeals from an order of the County Court, Nassau County, dated April 21, 1960, granting plaintiffs’ motion for summary judgment and striking out defendant’s answer, pursuant to rule 113 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion denied. Defendant was 12 years of age at the time of the incident in question. The infant plaintiff was about the same age. They were part of a group of boys who were spending the weekend at a camp. Plaintiff and another boy were standing in the doorway of *639their bunkhouse. Defendant’s deposition on his examination before trial states that he ran into the two boys and “ knocked them both down.” His affidavit in opposition to the motion is in conformance with this statement, except that it characterizes the incident as an accident. It is undisputed that the infant plaintiff fell two or three steps to the ground and sustained a fractured wrist and other injuries. The papers do not show whether defendant’s act was committed in the course of a game, or whether it was simply a physical outburst which may or may not have been accompanied by any evil intent, or to just what cause it could be attributed. The theory of action, as limited by plaintiffs’ bill of particulars, is negligence. In determining whether the act of an infant was negligent, his age, intelligence and experience, and the circumstances under which the act was committed, must be taken into consideration (Briese v. Maechtle, 146 Wis. 89; Hoyt v, Rosenberg, 80 Cal. App. 2d 500; 67 A. L. R. 2d 570 et seq.; 173 A. L. R. 890 et seq.; Restatement, Torts, § 283, Comment e; cf. Gloshinsky v. Bergen Milk Transp. Co., 279 N. Y. 54, 58; Weidenfeld v. Surface Transp. Corp. of N. Y., 269 App. Div. 341). We do not regard Williams v. Hays (143 N. Y. 442); Conklin v. Thompson (29 Barb. 218); Bullock v. Babcock (3 Wend. 391) and Harvey v. Dunlop (Hill & Denio 193) as being to the contrary. In our opinion, the record presents triable issues of fact. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.

In an action to recover damages for conversion, defendant Stoll Packing Corp. appeals from an order of the Supreme Court, Queens County, dated December 3, 1959, denying its motion for summary judgment and granting plaintiff’s cross motion to amend its previously amended *640complaint. Order modified by striking out its second, third and fourth decretal paragraphs relating to the cross motion, and by substituting therefor a paragraph denying plaintiff’s cross motion to amend its complaint, without prejudice to the renewal of such motion upon proper papers. As so modified, order affirmed, without costs. The papers in support of the motion to amend the complaint are insufficient, in that they do not contain a copy of the proposed amended complaint in full (Hoisting Mach. Co. v. Elderfields Reservation, 195 App. Div. 893; Plitt v. Illinois Sur. Co., 165 App. Div. 973). Furthermore, the order in effect directs that the proposed amendment be deemed effectuated, without provision for service of a copy of the complaint as thus amended. Such procedure is not permissible. It engenders a question of whether it was intended that an answer to the new pleading was to be served or not, and a defendant should not be deprived of a right to answer a new pleading (Kelly v. Hilbert, 200 App. Div. 489). As to the motion for summary judgment, the record presents triable issues of fact. Nolan, P. J., Beldock, Christ and Pette, JJ., concur; Brennan, J., not voting.

Mugglin, J. Appeal from a judgment of the County Court of Madison County (DiStefano, J.), rendered February 16, 2006, upon a verdict convicting defendant of the crimes of criminal trespass in the second degree, unlawful imprisonment in the first degree, criminal possession of a weapon in the third degree and menacing in the second degree. In the early morning hours on May 14, 2005, defendant drove to a residence in the Town of Stockbridge, Madison County, where he had cohabited with his former girlfriend (hereinafter the victim) during the summer and fall of 2004. Finding the front door locked, defendant gained entry by forcing a sliding door—in the rear of the premises—out of its track. Upon discovering the victim in bed with another man, defendant took out a pocket knife, opened it and threatened the fives of both. After permitting the man to dress and leave, defendant continued to accost the victim. On this appeal, defendant contests only his convictions for criminal trespass in the second degree and criminal possession of a weapon in the third degree, arguing that the evidence was legally insufficient to support either of these convictions. First, with respect to the conviction for criminal trespass in the second degree, we note that defendant’s motion at the conclusion of the People’s case did not address the legal sufficiency of the evidence with respect to this crime, rendering this issue unpreserved for appellate review (see People v Gray, 86 NY2d 10, 19 [1995]; People v Cole, 35 AD3d 911, 912 [2006]; People v Silvestri, 34 AD3d 986, 986-987 [2006]; People v Riddick, 34 AD3d 923, 924-925 [2006]). In any event, by application of well-settled principles (see People v Cabey, 85 NY2d 417, 421 [1995]; People v Bleakley, 69 NY2d 490, 494 [1987]; People v Johnson, 24 AD3d 967, 968 [2005], lv denied 6 NY3d 814 [2006]), we find no merit to defendant’s argument. A prima facie case of criminal trespass in the second degree is established when the People produce evidence that a defendant “knowingly enter[ed] or remain[ed] unlawfully in a dwelling” (Penal Law § 140.15). One knowingly enters or remains unlawfully in a dwelling when he or she “is not licensed or privileged to do so” (Penal Law § 140.00 [5]). An individual is licensed or privileged *1054to enter a dwelling when “he [or she] has obtained the consent of the owner or another whose relationship to the premises gives him [or her] authority to issue such consent” (People v Graves, 76 NY2d 16, 20 [1990]; see People v Glanda, 5 AD3d 945, 950 [2004], lv denied 3 NY3d 640 [2004]). However, a person who “honestly believes that he is licensed or privileged to enter[ ] is not guilty of any degree of criminal trespass” (People v Bosch, 36 NY2d 154, 159 [1975]). Here, the victim and both of her parents (the owners of the premises) testified that defendant had no permission to enter. His claim of an honest belief in his privilege to enter was based on his personal belief that he still had an ongoing relationship with the victim (disputed by her), that he still had some personal belongings at the residence and that he helped the victim move a stove and couch into the residence several weeks prior to this occurrence. Viewed in the light most favorable to the People, it is evident that a reasonable person could conclude, as did this jury, that defendant entered unlawfully. A weight of the evidence analysis (see People v Bleakley, supra at 495)—although not argued by defendant—after according deference to the jury’s credibility determinations, yields no different result (see People v Luck, 294 AD2d 618, 619 [2002], lv denied 98 NY2d 699 [2002]). Defendant’s argument that his conviction for criminal possession of a weapon is not supported by legally sufficient evidence is dependent on acceptance of his argument that his knife was not a “dangerous knife” within the meaning of the statute (see Penal Law § 265.01 [2]). However, a knife “may be considered a ‘dangerous knife’ within the meaning of. . . Penal Law § 265.01 (2) when the circumstances of its possession, including the behavior of its possessor, demonstrate that the possessor himself considered it a weapon, even if the knife might not otherwise be defined as a ‘dangerous knife’ by reason of its inherent characteristics” (Matter of Sean R., 33 AD3d 925, 926 [2006]; see Matter of Jamie D., 59 NY2d 589, 591 [1983]). Moreover, defendant’s mere possession of the knife, while displaying it in an effort to instill fear, was itself presumptive evidence of his intent to use it unlawfully (see Matter of Sean R., supra at 926; Matter of Jesse QQ., 243 AD2d 788, 789 [1997], lv denied 91 NY2d 804 [1997]). The testimony of the male victim that defendant gave him the choice of leaving or being killed, while he stood over him with the knife in his hand, amply supports the jury’s determination. Mercure, J.P, Crew III, Spain and Rose, JJ., concur. Ordered that the judgment is affirmed.

Carpinello, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered April 24, 2006, convicting defendant upon his plea of guilty of the crime of petit larceny. Defendant was indicted for grand larceny in the fourth degree after he stole lottery tickets valued at $2,520. He subsequently waived his right to appeal and pleaded guilty, in satisfaction of the indictment, to petit larceny. County Court thereafter sentenced him to 30 days in jail and three years of probation. Defendant now appeals and we affirm. Initially, defendant contends that the prosecutor’s improper and unduly prejudicial remarks to County Court prior to sentencing enhanced his sentence. While such an allegation is not necessarily foreclosed by defendant’s waiver of appeal (see People v Hoeltzel, 290 AD2d 587, 588 [2002]), we note that defendant failed to preserve this issue by raising the appropriate objection (see CPL 470.05 [2]). Nevertheless, our review of the record confirms that defendant’s contention is without merit. Defendant concedes in his brief that the negotiated plea agreement did not provide for any sentencing promises. Further, it did not require the prosecutor to remain silent or abstain from taking a position at the time of sentencing. As such, we cannot conclude that the People violated the terms of the plea agreement or committed any other improprieties. Defendant next asserts that County Court erred by not adjourning the sentencing hearing in order to allow him to refute information in a letter that had allegedly been submitted to the court indicating that a substantially higher amount of restitution was owed by him. This matter, however, is unpreserved for our review inasmuch as the record is devoid of any objection by defendant or request for an adjournment (see CPL 470.05 [2]; People v Ebert, 18 AD3d 963, 964 [2005]). Defendant’s assertion is, in any event, unavailing given that, contrary to defendant’s representation, the record demonstrates that County Court did not read the letter. Finally, defendant’s claim that his sentence was harsh and excessive will not be reviewed in light of his valid appeal waiver, *1056unchallenged here (see People v Lopez, 6 NY3d 248, 255-256 [2006]; People v Jangrow, 34 AD3d 991, 992 [2006]). Mercure, J.E, Spain, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.

Crew III, J.P. Appeal from an order of the County Court of Schenectady County (Drago, J.), entered March 22, 2006, which denied defendant’s motion for resentencing pursuant to the Drug Law Reform Act of 2005. In September 1999, defendant was sentenced upon his plea of guilty of criminal possession of a controlled substance in the second degree to a term of imprisonment of three years to life. In April 2000, defendant was released on shock parole. In 2002, defendant was convicted of criminal possession of a weapon, thereby violating his conditions of parole, and was sentenced to three years in prison. Thereafter, defendant moved for resentencing with regard to his controlled substance conviction pursuant to the Drug Law Reform Act of 2005 (see L 2005, ch 643, § 1), which motion was denied, prompting this appeal. Initially, the People contend that defendant’s appeal is untimely and must be dismissed. The record reflects that defendant received the order denying his motion on March 30, 2006 but did not file a notice of appeal until May 15, 2006, well beyond the 30-day period required by statute (see CPL 460.10 [1] [a]). However, defendant sought permission from this Court to appeal from the order in question on April 24, 2006, within the 30-day period for the filing of a notice of appeal. We advised defendant, by letter dated May 10, 2006, that his motion was being denied because he was entitled to take an appeal as a matter of right. Unfortunately, by the time we rendered that advice, defendant’s time to appeal had expired. Under the unusual circumstances of this case, we will deem defendant’s motion for leave to appeal as a notice of appeal. Defendant contends that County Court’s denial of his motion for resentencing was an abuse of discretion and must be reversed. We disagree. In order to be eligible for resentencing under the Drug Law Reform Act of 2005, defendant must (1) be in the custody of the Department of Correctional Services *1057convicted of a class A-II felony and (2) have been sentenced to an indeterminate prison term with a minimum period of at least three years and be more than 12 months from being an “eligible inmate” as defined by Correction Law § 851 (2) (see L 2005, ch 643, § 1). We do not believe that the drug reform laws were intended to apply to offenders who have served their term of imprisonment, been released to parole supervision, violated their parole and, as a result, were subject to a subsequent period of incarceration (see People v Bagby, 11 Misc 3d 882, 887 [2006]). Under these circumstances, we do not perceive that County Court abused its discretion in denying defendant’s motion. Peters, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed.

In an action to recover damages for personal injuries resulting from an airplane accident, defendant appeals from an order of the Supreme Court, Nassau County, dated December 10, 1959, granting plaintiff’s motion to open his default, to vacate the dismissal of the action, and to restore it to the Trial Calendar. The accident occurred in May, 1952; the action was commenced in December, 1953; and issue was joined in January, 1954. On October 1, 1957 the action was struck from the calendar because of plaintiff’s failure to file a statement of readiness (see Rules App. Div. [2d Dept.], Special Rule, eff. Jan. 15, 1957, as amd.). One year later, on October 1, 1958, the action was dismissed pursuant to rule 302 of the Rules of Civil Practice. On November 25, 1959, plaintiff made the motion which resulted in the order appealed from. Order reversed, with $10 costs and disbursements, and motion denied. Almost six years elapsed between the date of the commencement of this action and the date of the making of plaintiff’s motion to open Ms default. In our opinion, no proper legal excuse was offered for the omission to file the requisite statement of readiness. The excuse presented is that plaintiff’s attorney was not aware of his noncompliance with the Special Rule requiring the filing of the readiness statement until June, 1959, when he received a postcard from the Calendar Clerk apprising him that on October 1, 1957, the action had been struck from the calendar. It was only when he got the postcard that he ascertained the fact as to the omission. Such casual supervision of the calendar status of a pending action may not serve to defeat the mandatory requirements of the rule calling for the filing of a statement of readiness (Abbey v. Trynin, 9 A D 2d 913). Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.

Spain, J. Appeals (1) from a judgment of the Supreme Court (Lamont, J.), rendered May 7, 2003 in Albany County, upon a verdict convicting defendant of the crime of burglary in the second degree, and (2) by permission, from an order of said court, entered December 5, 2003 in Albany County, which denied defendant’s motion pursuant to CPL 440.10 and 440.20 to vacate the judgment and set aside the sentence, without a hearing. Following a jury trial, defendant was convicted of burglary in the second degree stemming from his unlawful daytime entry into an apartment in the City of Albany in September 1998. The victim testified that she was home alone and, upon hearing noises, she came out of her bedroom and found defendant and another intruder in her living room holding large garbage bags. *1058They were hunched over her television disconnecting the electronic components, which were now in disarray. She replied in the negative when they asked if she had any empty cans, and they complied when she ordered them to leave. Shortly thereafter, defendant and another man were apprehended a few blocks away in a parking lot and the victim identified defendant as one of the intruders. Sentenced as a second felony offender to a prison term of IOV2 years with five years of postrelease supervision, defendant appeals from the judgment of conviction. He also appeals, with permission, from the denial of his CPL article 440 motion to vacate the judgment and set aside the sentence. There is no merit to defendant’s contention that the evidence was legally insufficient to establish that he knowingly and unlawfully entered this dwelling “with intent to commit a crime therein” (Penal Law § 140.25 [2]). Viewing the evidence most favorably to the People, the People established defendant’s general intent to commit a crime through the victim’s account of defendant’s culpable conduct inside the apartment and, moreover, defendant’s unauthorized presence supports the inference of his subjective intent to commit a crime therein (see People v Armstrong, 11 AD3d 721, 723 [2004], lv denied 4 NY3d 760 [2005]; People v Ferguson, 285 AD2d 838, 839 [2001], lv denied 97 NY2d 641 [2001]; see also People v Lewis, 5 NY3d 546, 552 [2005]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Porter, 35 AD3d 907, 909 [2006]). The People were not required to prove what particular crime was intended as they never expressly limited their case (see People v Lewis, supra at 552, 552 n 7). Defendant’s challenge to the verdict as contrary to the weight of the evidence focuses on the fact that he did not run when the victim (or, later, the police) encountered him, and upon his testimony that he announced his presence before entering and that he only intended to ask for cans and bottles to return for deposits to support himself as a homeless person. It was the jury’s function to resolve issues of credibility, and the jury reasonably rejected defendant’s implausible account, a determination to which we accord deference (see People v Griffin, 26 AD3d 594, 596 [2006], lv denied 7 NY3d 756 [2006]). Notably, defendant admitted that he took cans off the porch without permission, never rang the doorbell before entering the apartment, and had no permission to enter. Thus, we find that the verdict was amply supported by the weight of the credible evidence (see People v Romero, 7 NY3d 633, 643-644 [2006]; People v Bleakley, supra at 495; People v Porter, supra; People v Armstrong, supra at 723). *1059Next, defendant challenges Supreme Court’s imposition of a sentence for burglary in the second degree as a violent felony offense, which it is (see Penal Law § 70.02 [1] [b]). In effect, defendant challenges as unconstitutional or illegal the legislative classification of burglary in the second degree as a violent felony because no violence was used or proven in this case, arguing that he was denied due process because he was not allowed to contest this classification. However, it is the Legislature’s function to classify crimes and to “distinguish among the ills of society which require a criminal sanction, and prescribe, as it reasonably views them, punishments appropriate to each” (People v Broadie, 37 NY2d 100, 110 [1975]). Since the 1981 amendments to Penal Law § 140.25 (2) (L 1981, ch 361), the Legislature determined “to classify all burglaries of dwellings as class C or higher violent felonies . . . apparently based upon its assessment that the potential for violence was the same irrespective of the time of their commission,” abrogating the distinction between those committed at night and those committed during the day (People v Kepple, 98 AD2d 783, 783 [1983]; see People v Coleman, 135 AD2d 646, 647 [1987]). Defendant’s first hurdle is that legislative enactments are presumed to be constitutional (see Catholic Charities of Diocese of Albany v Serio, 28 AD3d 115, 120 [2006], affd 7 NY3d 510 [2006]; see also Dalton v Pataki, 11 AD3d 62, 89 [2004], mod 5 NY3d 243 [2005]). Secondly, “[d]ue process requires only a fair, just and reasonable connection between the law and the promotion of the health, comfort, safety and welfare of society” (People v Buyce, 97 AD2d 632, 632 [1983]). Since there is a rational basis for this classification, namely, the potential for violence in all home invasions, “[j]udicial review ends” (People v Kepple, supra at 784; see People v Buyce, supra at 632; see also People v Broadie, supra at 117-119). Defendant has neither overcome the presumption of constitutionality attaching to this legislative classification nor established any due process deprivation resulting from it. To the extent that defendant suggests that his sentencing was based upon a factor not proven at trial, i.e., his use of violence, in violation of Apprendi v New Jersey (530 US 466, 490 [2000]) and its progeny, he is incorrect. First, violence is not an element of burglary in the second degree. Second, a factual determination that defendant engaged in violence is not a prerequisite to classifying that crime pursuant to Penal Law § 70.02, as the conviction alone qualified defendant for the enhanced sentenc*1060ing provided by that statute.* Simply put, defendant’s meritless disagreement with the legislative classification of this crime does not raise a legitimate Apprendi issue, and Supreme Court correctly denied defendant’s CPL article 440 motion on this ground. Finally, we are not persuaded by defendant’s request for a reduction in his lOVs-year sentence. Supreme Court, cognizant of the factors cited in mitigation, imposed a sentence in the midrange (see Penal Law § 70.06 [6] [b]) and, given defendant’s extensive criminal history and his invasion of the sanctity of this home, we discern no extraordinary circumstances or abuse of discretion warranting a sentence reduction in the interest of justice. Cardona, P.J., Peters, Carpinello and Kane, JJ., concur. Ordered that the judgment and order are affirmed. Notably, the maximum sentence for a class C felony is 15 years, whether it is classified as a regular felony (see Penal Law § 70.00 [2] [c]), violent felony (see Penal Law § 70.02 [3] [b]) or where defendant is sentenced as a second felony offender for a regular class C felony (see Penal Law § 70.06 [3] [c]), or where a defendant, as here, is sentenced as a second felony offender for a violent class C felony (see Penal Law § 70.06 [6] [b]).

Crew III, J. Appeal from a judgment of the County Court of Delaware County (Becker, J.), entered November 22, 2004, upon a verdict convicting defendant of the crimes of gang assault in the second degree and criminally negligent homicide. Defendant was indicted for manslaughter in the first degree, manslaughter in the second degree and gang assault in the first degree based upon his participation in a group beating that ultimately resulted in the victim’s death. Following trial, defendant was convicted of gang assault in the second degree and criminally negligent homicide and was sentenced to concurrent terms of imprisonment of 11 years for the gang assault conviction and lVs to 4 years for the criminally negligent homicide conviction. Defendant now appeals, contending that the sentence imposed by County Court was harsh and excessive. Based upon our review of the record as a whole, we find neither an abuse of discretion on the part of County Court nor the existence of any extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Means, 35 AD3d 975, 976-977 [2006]). Simply put, despite defendant’s remorsefulness and his lack of a prior criminal history, under the circumstances presented here, we are unable to *1061discern any basis upon which to disturb the sentence imposed by County Court. Accordingly, the judgment of conviction is affirmed. Mercure, J.E, Spain, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed.

In a proceeding by a landlord, pursuant to article 78 of the Civil Practice Act, to review a determination of the State Rent Administrator that a housing accommodation is not self-contained *642and, therefore, is not subject to decontrol within the purview of subdivision 12 of section 9 of the State Rent and Eviction Regulations, the landlord appeals from an order of the Supreme Court, Kings County, dated November 24, 1959, which denies his petition and dismisses the proceeding. This proceeding involves a one-story frame bungalow which is one of two bungalows in the rear of two buildings facing West 22nd Street in Coney Island. It appears from the record that the four buildings are on one lot, that they are taxed as a single unit and that they always have been transferred as a single unit. The State Rent Administrator’s determination denying decontrol of the accommodation was based on the evidence in its records and on an inspection report which stated, inter alia, that hot water was piped into the subject accommodation from another unit. This statement was denied by the landlord. By a prior order, dated November 13, 1957, the Justice at Special Term sustained the determination and denied the petition and dismissed the proceeding. The landlord appealed, and this court, on May 18, 1959, reversed the said order and remitted the proceeding to the Special Term for a statement showing the basis of its conclusion that the Administrator’s determination was not arbitrary or capricious, and showing particularly the facts disclosed by the Justice’s personal inspection of the premises, made on the consent of the parties (Matter of Kahan v. Weaver, 8 A D 2d 738). On remission, the Justice at Special Term made another personal inspection of the premises, and, after a hearing, adhered to his former decision on the basis of the following findings, among others, which he made: (1) that all of the electric meters for the seven units in the four buildings were located in one of the front buildings; (2) that there is a common passageway or alleyway for access to the rear buildings which is located at the side of one of the front buildings; and (3) that water, although heated in the subject accommodation, is piped into it from one water line containing one valve located in the street, in front of one of the front buildings. Order affirmed, with costs. In our opinion, the facts and circumstances warrant the finding that the subject housing accommodation constitutes part of a multiple dwelling, and justify the conclusion that the Administrator’s determination in denying decontrol was not unreasonable, arbitrary or capricious. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.

In a proceeding under section 50-e of the General Municipal Law, the New York City Transit Authority appeals from so much of an order of the Supreme Court, Queens County, dated March 3, 1960, as grants to the infant claimant, 12 years of age, leave to serve a late notice of claim for personal injuries. The said order denies similar relief to the father individually with respect to his claim for medical expenses incurred as a result of such injuries, but no appeal is taken with respect to such denial. Order insofar as appealed from affirmed, without costs. (Cf. Biancoviso v. City of New York, 285 App. Div. 320; Matter of Rosenberg v. City of New York, 285 App. Div. 1085, revd. 309 N. Y. 304; Matter of Hogan v. City of Cohoes, 279 App. Div. 282.) Nolan, P. J., Ughetta, Pette and Brennan, JJ., concur; Christ, J., dissents and votes to modify the order so as to deny the motion as to the infant plaintiff as well as to the father, with the following memorandum: Section 50-e of the General Municipal Law requires a notice of claim to be served within 90 days after the claim arises. However, where the claimant is an infant and by reason of such disability has failed to serve a notice of claim within the time thus specified, the court, upon application made within one year after the happening of the event on which the claim is based, may grant leave to serve the notice within a reasonable time, The court should not exercise this discretion in *643favor of the claimant unless it is satisfactorily established: (1) that there is merit to the claim; (2) that the failure to serve a timely notice is attributable to the infancy; and (3) that the delay has not materially prejudiced the defendant (Biancoviso v. City of New York, 285 App. Div. 320). Here a 12-year-old boy is involved. He is old enough to testify under oath and he is presumably an essential witness in this ease. Tet, there is no affidavit by him as to the cause of the accident or as to the cause of the delay in serving the notice. The only affidavit submitted in support of the application is one by claimants’ trial counsel. This affidavit is obviously completely hearsay, even though such counsel does not profess to make it on information and belief. It is simply a sworn statement by a lawyer as to facts concerning which he has no direct knowledge. It does not even give the sources of such information as it does contain. It states that the infant did not give the full facts to the attorney of record; but it fails to state what facts were given or what facts were omitted. Moreover, the moving affidavit is absolutely silent about the prejudice to the defendant by reason of the delay. On the other hand, the defendant claims that the delay has resulted in prejudice to it. The very nature of the accident as now stated gives rise to the view that, because of the lapse of 11 months without service of a notice of claim, defendant will have difficulty in preparing its defense. The privilege of serving a late notice of claim may not be extended or withheld by the courts as a matter of whim or caprice. The statute (General Municipal Law, § 50-e) means that the limit of 90 days is to be enforced, save where a sound discretion would extend it for those under disability. That discretion must be exercised only upon the presentation of all the material facts and the application of sound reason. Here such facts are absent and, in my opinion, no sound reason is or can be assigned. An affirmance here is contrary to the design and the intent of the statute (General Municipal Law, § 50-e).

Mugglin, J. Appeals (1) from a judgment of the County Court of Columbia County (Nichols, J.), rendered October 14, 2003, convicting defendant upon his plea of guilty of the crimes of arson in the third degree, reckless endangerment in the first degree and assault in the third degree (two counts), and (2) by permission, from an order of said court, entered April 26, 2006, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing. Defendant started a fire on the back porch of his mother’s apartment in the City of Hudson, Columbia County. The fire destroyed or damaged several apartment buildings1 and resulted in injury to two volunteer firefighters. Defendant waived indictment and was prosecuted by superior court information. He pleaded guilty to arson in the third degree, reckless endangerment in the first degree and two counts of assault in the third degree. Defendant’s subsequent motion pursuant to CPL 440.10 to vacate the judgment of conviction on the grounds that his plea was not knowing and voluntary and his counsel was ineffective was denied. Defendant now appeals from the judgment of conviction and, by permission of this Court, from the denial of his CPL 440.10 motion. Here, defendant does not address his assault convictions, arguing only that his arson conviction should be reduced from *1062third degree to fourth degree and his reckless endangerment conviction should be reduced from first degree to second degree. In essence, defendant argues that a review of the entire record reveals that the arson in the third degree plea is baseless because his act of starting the fire was reckless (see Penal Law § 150.05 [1]) and not intentional (see Penal Law § 150.10 [1]). Also, he argues that his reckless endangerment conviction should be reduced because his conduct was not so reckless as to evince a depraved indifference to human life (compare Penal Law § 120.25 with Penal Law § 120.20). We are unpersuaded. During the plea proceeding, in the presence of his counsel and County Court, defendant executed a sworn document which, among other things, contained the following statements: “I plead guilty as follows: I was in Columbia County at all relevant times as alleged. I intentionally damaged a building by starting a fire. I knew by starting this fire I could have killed the residents of the building. I knew that firefighters could be injured when fighting the fire that I started. I started the fire anyway.” In addition, defendant orally admitted, intentionally setting the fire and that he knew or should have known that the building was occupied and that firefighters would be called to the scene. We are satisfied that the sworn affidavit and the plea colloquy, together, establish the elements of the crimes charged (see People v Kemp, 288 AD2d 635, 636 [2001]) and that nothing occurred during the plea process which would negate an essential element so as to trigger County Court’s duty of further inquiry (see People v Lopez, 71 NY2d 662, 666 [1988]). While defendant’s preplea statements2 to the police are inconsistent with his plea, defendant did not equivocate during the plea process itself. In sum, we are satisfied that defendant admitted to intentionally setting fire to an occupied building, an act which would evince a depraved indifference to human life. Finally, we find no merit to defendant’s argument that he was denied the effective assistance of counsel because counsel allowed him to plead guilty to crimes without factual support in the record, failed to raise an affirmative defense to the arson charge and failed to pursue youthful offender treatment. In support of this contention, defendant relies mainly on the state*1063ments that he made to the police during the investigation. Although these statements may have provided a basis to pursue avenues of defense, striking a plea bargain in the face of potential defenses does not necessarily equate to ineffective assistance of counsel. A defendant receives the effective assistance of counsel when the totality of the circumstances of the matter allow the conclusion that a defendant received meaningful representation (see People v Baldi, 54 NY2d 137, 146-147 [1981]). But meaningful representation does not require perfection (see People v Ford, 86 NY2d 397, 404 [1995]). Applying these principles, it is manifest that defendant did receive the effective assistance of counsel. Here, defendant openly acknowledged his satisfaction with his counsel’s representation and defense counsel successfully obtained a prison sentence far less than the permissible maximum. The length of the prison term imposed is particularly meaningful given the enormity of the damage caused by defendant’s conduct. Clearly, the plea agreement was advantageous to defendant. Crew III, J.E, Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment and order are affirmed. . More than 40 people were evacuated and damage in excess of $328,000 was caused. . Defendant gave three conflicting statements to the police. At first, he blamed the fire on three black men who were smoking marihuana on his mother’s back porch. In the second statement, he stated that grease on the outside of a pot he was using caught fire and he threw it out his back door, but it hit the railing and landed on his mother’s porch. In the third statement, he admitted starting the fire, but only to attract his paramour’s attention in a nearby apartment, not to damage the building.

In a proceeding, pursuant to section 12-a of the Lien Law, to amend a notice of lien, the lienor petitioner appeals, as limited by its brief, from so much of two orders of the Supreme Court, Westchester County, dated, respectively, January 29, 1960 and July 7, 1959, as reduce to $14,587 the amount of the lien heretofore filed and as reduce to $16,000 the amount of the bond heretofore fixed by order of the court. Orders insofar as appealed from affirmed, with one bill of costs. The orders appealed from were made pursuant to section 12-a of the Lien Law. In the exercise of the judicial discretion accorded by the statute, the provisions in the orders complained of were apparently inserted as conditions to the granting of the relief sought by petitioner, so as to prevent prejudice to purchasers in good faith and to possible subsequent lienors or mortgagees of the property affected by the notice of lien. We see no abuse of discretion in the conditional direction that the amount claimed in the notice of lien be reduced for the purpose stated, so as to limit it to the amount which the petitioner, in its petition dated August 7, 1959, had conceded to be the balance “ allowable under its lien ”, and so as to exclude therefrom claims for labor and material which were coneededly not furnished for the improvement of the property described in the amended notice. Neither do'we find any prejudice to petitioner, nor abuse of discretion by the Special Term, by reason of a provision that the amount of the undertaking necessary to bond the lien should be reduced. The orders insofar as they so direct do not purport to amend the bond heretofore filed; and, as we construe the orders, they can have no effect except as the basis for an application by the owner (respondent), if so advised, to substitute a new undertaking in the reduced amount for that heretofore furnished. Nolan, P. J., Beldock, Kleinfeld and Pette, JJ., concur; Brennan, J., not voting.

In an action to recover damages for conspiracy by defendants to take away plaintiff’s customers, the jury rendered a verdict (a) against the two corporate defendants for $50,000 compensatory and $35,000 punitive damages, and (b) in favor of the two individual defendants. The trial court granted the motion of the corporate defendants to set aside the verdict against them and ordered a new trial as to them on the ground: (a) that there was no competent proof of compensatory damages because the proof did not show that plaintiff had made a profit from its business prior to defendants’ wrongful conduct; and .(b) that, since there was no basis for compensatory damages, the award of punitive damages was also required to be set aside. The trial court denied the plaintiff’s motion to set aside the verdict in favor of the two individual defendants. Such verdict resulted from the trial court’s charge that the individual defendants could not be held liable for damages as conspirators unless the jury found that they profited individually from their acts. An order and judgment incorporating the foregoing were duly entered, respectively, in the Supreme Court, Nassau County, on January 30, 1958 and on February 21, 1958. Plaintiff appeals: (a) from the said order, which grants the motion of the corporate defendants to set aside the jury’s verdict as against them, which grants a new trial as to them, and which denies plaintiff’s motion to set aside the jury’s verdict in favor of the individual defendants; and (b) from the said judgment which, in effect, dismisses the complaint against the individual defendants. The corporate defendants cross-appeal from so much of said order as grants a new trial with respect to them. Their position is that the trial court should have dismissed the complaint instead of granting a new trial. Order modified on the law and the facts as follows: (1) by striking out its first decretal paragraph setting aside the jury’s verdict in plaintiff’s favor against the two corporate defendants and granting a new trial as to them “upon the ground that there is no competent proof of damage to sustain the award of the jury against said defendants ”; (2) by striking out its third decretal paragraph restoring the action for trial for a specific date; (3) by substituting therefor a paragraph setting aside the jury’s verdict in plaintiff’s favor against the two corporate defendants and granting a new trial as to them, unless, within 30 days after the entry of the order hereon, plaintiff shall file a stipulation consenting to reduce the verdict in its favor to $22,000 for compensatory damages and to $10,000 for punitive damages, in which event the corporate defendants’ motion to set aside the jury’s verdict in plaintiff’s favor against them and for a new trial, is denied; (4) by striking out its second decretal paragraph denying the plaintiff’s motion to set aside the jury’s verdict in favor of the individual defendants; (5) by substituting therefor a paragraph granting plaintiff’s said motion to set aside the jury’s verdict in favor of the individual defendants and granting a new trial as to said defendants; (6) by adding another paragraph severing the action as to said individual defendants in the event the plaintiff shall file such stipulation; and (7) by adding a further paragraph directing the entry of judgment accordingly in the event such stipulation be filed. As so modified, the order insofar as appealed from, is affirmed, with costs to plaintiff. The judgment appealed from is vacated on the law and the facts, with costs to plaintiff. The record is sufficient to sustain the finding of the jury that all the defendants conspired to and did take away plaintiff’s customers unlawfully and without plaintiff’s consent. This finding entitles plaintiff to recover as compensatory dainages the amount of loss sustained by it, including opportunities for profit on the'accounts diverted from it through defendants’ wrongful conduct (Duane Jones Co. v. *645Burke, 306 N. Y. 172; Keviczky v. Lorber, 290 N. Y. 297). Whether in prior years plaintiff had made profit from its business generally, is immaterial. Plaintiff is entitled to recover from defendants the profit lost on the customers diverted by them. This profit is computed by deducting from the gross income derived from these customers, the cost of delivering off to them and plaintiff’s overhead allocable to this income. In our opinion, the record is sufficient to sustain a finding that plaintiff’s loss, as thus computed, amounted to $22,000. Since this tort was committed maliciously and since the question of punitive damages was submitted to the jury without exception, defendants may not now question such submission (Gill v. Montgomery Ward & Co., 284 App. Div. 36, 40; Korber v. Dime Sav. Bank, 134 App. Div. 149). In view of the reduction in the compensatory damages, the punitive damages should be reduced to $10,000. As this action is one to recover damages arising out of defendants’ fraud, it was error to charge that the individual defendants (the agents and officers of the corporate defendants) are not liable to plaintiff if they had not profited from the fraud (Laska v. Harris, 215 N. Y. 554). It should be noted that, while a new trial is being granted unconditionally as to the individual defendants, the new trial will become unnecessary and will be rendered academic in the event plaintiff shall file the stipulation to reduce the verdict as against the two corporate defendants and in the event said defendants or either of them shall satisfy the judgment as thus reduced. Once plaintiff has been paid its damages it would not be entitled to any further recovery from the individual defendants. Beldock, Acting P. J., Ughetta, Kleinfeld and Pette, J., concur; Brennan, J., not voting.

Cardona, EJ. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered July 26, 2005, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree. While an inmate at Shawangunk Correctional Facility in Ulster County, defendant was involved in a physical altercation with a correction officer and subsequently indicted on two counts of assault in the second degree. Defendant pleaded guilty to the reduced charge of attempted assault in the second degree and was sentenced as a second felony offender in accordance with the plea agreement to a prison term of 2 to 4 years, to be served consecutively to a sentence he was then serving. Defendant’s challenges to the validity of his plea and to the effectiveness of defense counsel’s representation as it impacts the voluntariness of his guilty plea are unpreserved for our review given his failure to move to withdraw his plea or vacate the judgment of conviction (see People v Jones, 30 AD3d 633 [2006], lv denied 7 NY3d 849 [2006]). For the same reason, defendant’s challenge to the factual sufficiency of the plea is also not preserved for our review (see People v Masters, 36 AD3d 959, 960 [2007]). Nevertheless, were we to consider the forego*1064ing, we would find that defendant entered a knowing, voluntary and intelligent plea of guilty. Defendant’s contention that he was rushed and had no choice but to accept the plea is belied by his subsequent responses to County Court’s questioning, which demonstrate defendant’s understanding of and willingness to enter his plea (see People v Adams, 26 AD3d 597, 598 [2006], lv denied 7 NY3d 751 [2006]; People v Victor, 262 AD2d 872, 873 [1999], lv denied 94 NY2d 830 [1999]). Furthermore, his allocution sufficiently establishes the essential elements of the crime (see People v Williams, 35 AD3d 971 [2006]). Turning to defendant’s claim of ineffective assistance of counsel, given, among other things, the advantageous plea agreement which reduced his sentencing exposure, the record establishes that defendant received meaningful representation (see People v Ford, 86 NY2d 397, 404 [1995]; People v Decker, 32 AD3d 1079, 1080 [2006]). To the extent that defendant’s argument pertains to defense counsel’s alleged deficiencies in the preparation and investigation of defendant’s case, “such matters are outside the present record and are more properly the subject of a CPL article 440 motion” (People v Swartz, 23 AD3d 917, 918 [2005], lv denied 6 NY3d 818 [2006]; see People v Donaldson, 1 AD3d 800, 801 [2003], lv denied 2 NY3d 739 [2004]). We have reviewed defendant’s remaining contentions, including his claims that he was improperly denied a copy of his presentence investigation report and that the sentence imposed was harsh and excessive, and find them to be unpersuasive. Her cure, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.

Carpinello, J. Appeal from a judgment of the Supreme Court (Main, Jr., J.), rendered September 2, 2005 in Franklin County, upon a verdict convicting defendant of the crime of aggravated harassment in the second degree. Defendant stands convicted of aggravated harassment in the second degree stemming from evidence that he threatened his ex-girlfriend and their child during a telephone conversation. On appeal, he argues that he was denied a fair trial by Supreme Court’s Sandoval ruling, as well as the court’s “caustic remarks” to the jury. Unpersuaded by both arguments, we affirm. During the course of the Sandoval hearing, Supreme Court was presented with defendant’s numerous past arrests, convictions and violations of probation. While the court did not permit inquiry into many of them, it did permit inquiry into three prior convictions (attempted sexual misconduct, criminal mischief and unlawfully dealing with a child). To the extent that defendant claims that the court failed to properly exercise its discretion by considering all relevant factors before making this determination, we note that Supreme Court considered the arguments advanced by each side prior to its initial ruling. In addition, in response to concerns raised by the defense concerning admission of these convictions, the court made a commitment to conduct additional research on the matter. It also requested and received written Sandoval memoranda from both sides. Thereafter, Supreme Court adhered to its initial ruling but not without giving a more detailed explanation for doing so. The court explained that it was permitting inquiry into these particular prior convictions because none was too similar to the charged crime, none involved spontaneous violence on defendant’s part and each demonstrated his willingness to place his own interests ahead of those of society. Thus, contrary to defendant’s claim, the court’s Sandoval ruling was indeed a considered decision which took into account all relevant factors and further struck a proper balance between the probative value of these convictions on defendant’s credibility and the possible prejudice to him (see e.g. People v Hogencamp, 295 AD2d 643 [2002], lv denied 98 NY2d 697 [2002]; People v Layman, 284 AD2d 558, 558-559 [2001], lv denied 96 NY2d 903 [2001]; People v Coneen, 191 AD2d 839, 840 [1993], lv denied 81 NY2d 1012 [1993]; People v Noeth, 162 AD2d 724 [1990], lv denied 76 NY2d 942 [1990]; People v Emmons, 123 AD2d 475, 477 [1986], lv denied 69 NY2d 827 [1987]). Next, following Supreme Court’s preliminary instructions but *1066before opening statements, it briefly excused the jurors after informing them that “an issue [has just] arose which has upset me to a considerable extent.” The court expounded that it was “not going to say anything more about it than that,” and that it “need[ed] to give [the matter] some attention” before going further. The “issue” which arose concerned the admissibility of certain evidence by the defense. Defendant now claims that these remarks were caustic, revealed a bias on the court’s part which prejudiced him and distracted the jury. First, defendant never objected to these remarks or in any way raised the present allegation of bias or undue prejudice. Thus, the issue is not preserved for this Court’s review (see CPL 470.05 [2]; see e.g. People v McPherson, 182 AD2d 714, 714-715 [1992], lv denied 80 NY2d 835 [1992]; People v Dowdy, 154 AD2d 613, 614 [1989]; People v Morton, 117 AD2d 631 [1986], lv denied 67 NY2d 947 [1986]). In any event, there was nothing caustic nor indicative of bias about the remarks. To the contrary, they were innocuous and in no way revealed to the jury that it was an evidentiary issue pertaining to the defense which prompted the need for the brief delay in the proceedings. Cardona, EJ., Spain, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed, and matter remitted to the Supreme Court, Franklin County, for further proceedings pursuant to CPL 460.50 (5).

These two actions, which were consolidated and tried together, arise from an intersection collision between an automobile and a taxicab. The first action is by the automobile’s owner and operator against the taxicab’s owner and operator, to recover damages for injuries to person and property. The second action is by the taxicab’s passengers against the owners and operators of both vehicles, to recover damages for personal injuries. Defendant Lewis, the automobile’s owner and operator, appeals from a judgment of the Supreme Court, Westchester County, entered April 8, 1960, after a jury trial, which: (a) dismisses *646his complaint against the taxicab’s owner and operator, the defendants in Action No. 1; and (b) which grants recovery in various sums to the plaintiffs against all the defendants in-Action No. 2. Appeal by defendant Lewis, insofar as it is taken from the judgment dismissing his complaint, dismissed without costs. In his brief said defendant states that he is abandoning this portion of his appeal. Appeal by defendant Lewis from so much of said judgment as grants recovery to the plaintiffs against the defendants other than himself in Action No. 2, dismissed without costs. Defendant Lewis is not a party aggrieved by such portion of the judgment. On appeal by defendant Lewis from so much of said judgment as grants recovery to the plaintiffs against him in Action No. 2, judgment insofar as appealed from affirmed, with costs. No opinion. Nolan, P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.

Mercure, J. Appeal from an order of the County Court of Albany County (Herrick, J.), entered December 8, 2005, which denied defendant’s motion pursuant to CPL 440.30 (1-a) for the performance of forensic DNA testing on specified evidence. Defendant was convicted in 1987 of rape in the first degree *1067(two counts), rape in the second degree, rape in the third degree (two counts) and escape in the first degree. The facts underlying his convictions, which arose out of his sexual intercourse with a 15-year-old relative and a 12-year-old neighbor, are more fully set forth in this Court’s decision affirming the convictions (170 AD2d 710 [1991], lv denied 77 NY2d 997 [1991]). Defendant has since unsuccessfully moved several times to vacate the judgment of conviction. Pursuant to CPL 440.30 (1-a), he now seeks DNA testing on a “rape kit” that he alleges was prepared when his 15-year-old victim sought medical attention at Eastern Long Island Hospital. County Court denied the motion and defendant appeals. We affirm. An application for DNA testing of evidence must be granted when the defendant demonstrates “that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant” (CPL 440.30 [1-a] [a]; see People v Pitts, 4 NY3d 303, 310 [2005]). Here, defendant argues that because the victim initially provided a statement indicating that defendant ejaculated during intercourse and an Assistant District Attorney referred to medical reports at the suppression hearing, a rape kit must have been prepared. Although the Assistant District Attorney evidently referred to medical reports at the hearing, a special prosecutor provided an affidavit indicating that a thorough search of the files on defendant’s case did not reveal any such reports. In any event, such reports are not evidence that could be tested for DNA and defendant points to no physical evidence recovered from the victim. In addition, defendant concedes that the special prosecutors assigned to the case never possessed a rape kit or documents related thereto. Under these circumstances, the People met their burden of demonstrating that no evidence is available for testing (see People v Pitts, supra at 311). Moreover, even if a rape kit had been prepared, the People indicated at trial that there were no scientific tests showing the presence of semen and there would be no testimony by any witness that semen was present. Given that the victim waited two days before seeking medical attention and that there was no likelihood that the victim misidentified defendant, together with the People’s express affirmation to the trial court that there was no evidence regarding semen, there is no reasonable probability that DNA testing would have led to a different verdict and, thus, defendant’s motion was properly denied (see id.; People v Dearstyne, 305 AD2d 850, 853 [2003], lv denied 100 NY2d 593 [2003]; People v Pugh, 288 AD2d 634, 634-635 [2001]). *1068Defendant’s remaining argument has been rendered academic by our determination. Cardona, EJ., Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the order is affirmed.

In an action pursuant to article 15 of the Real Property Law to compel the determination of conflicting claims to the use of the water of Lake Tiorati in Orange County, defendant appeals, as limited by its brief, from two orders: (1) an order of the Supreme Court, Orange County, dated February 15, 1960, and entered in Rockland County on February 17, 1960, insofar as said order denies defendant’s motion, pursuant to rule 107 of the Rules of Civil Practice, to dismiss the second amended complaint on the ground that the cause of action did not accrue within the time limited by law for the commencement of an action thereon; and (2) an order of the Supreme Court, Rockland County, dated and entered April 27, 1960, insofar as it denies defendant’s motion for a change of venue from Rockland County to *647Orange County on the ground that under section 183 of the Civil Practice Act the latter county is the proper county for the trial of the action. Order dated February 15, 1960, modified, in the exercise of discretion, by adding thereto a provision that, if so advised, the defendant in its answer may plead the facts which it asserts establish that the action is barred by the time limitation provided by section 34 of the Civil Practice Act. As so modified, order affirmed, without costs. Defendant’s answer may be served within 20 days after service of a copy of the order entered hereon. In our opinion, the determination of the question whether an action, brought pursuant to article 15 of the Real Property Law, is barred by the Statute of Limitations, need not be deferred until trial by reason of subdivision 2 of section 500 of the Real Property Law. The provision of that subdivision, enacted by chapter 561 of the Laws of 1943, that the action “may be maintained, even though * * * the court may have to determine * * * any statutory limitation of time ”, merely removed any doubt that the remedy under article 15 was applicable to cases where the Statute of Limitations might be asserted as a bar to an adverse claim made by a defendant (see 1943 Report of N. Y. Law Rev. Comm., pp. 243, 244, 273-274). It was not intended to, and does not affect the power of the court, on motion, to dismiss a complaint under that article, where the record establishes that the plaintiff did not commence the action within the time limited by law. Moreover, we find no basis for a claim that defendant is estopped to plead the defense of the Statute of Limitations. We believe, however, that the question whether this action is barred by the statute may be better decided after a trial at which the facts with respect to plaintiff’s assertion of rights to and its use of the waters of the lake may be more fully explored, and at which the nature of its interest in such waters may he determined. Order dated April 27, 1960, insofar as appealed from, reversed, without costs, and motion for a change of venue from Rockland County to Orange County granted on the ground that, under section 183 of the Civil Practice Act, Orange County is the proper county for the place of trial. The action being one to compel the determination of a claim to real property must be tried in the county in which the subject of the action or some' part thereof is located (Civ. Prac. Act, § 183). The subject of this action is the right to use the waters of Lake Tiorati, which is situated entirely in Orange County. The controversy does not involve any claim to real property situated elsewhere. Consequently, the motion to change the venue of the action to Orange County should have been granted. Rolan, P. J., Beldock, Kleinfeld and Pette, JJ., concur; Brennan, J., not voting.

Appeal from a judgment of the County Court of Franklin County (Main, Jr., J.), rendered December 20, 2005, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree and burglary in the third degree. Defendant removed a safe from a private home and, as a result, was charged in an indictment with burglary in the second degree. He was charged in a second indictment with burglary in the third degree and attempted grand larceny in the fourth degree after he took a safe from a used car dealership and attempted to extort money from the owner. Defendant pleaded guilty to burglary in the second degree and burglary in the third degree in satisfaction of both indictments and a number of other pending charges. Under the terms of the plea agreement, County Court promised to sentence him as a second felony offender to not more than 10 years in prison, to be followed by an unspecified period of postrelease supervision, upon his conviction of second degree burglary. Upon his conviction of third degree burglary, the court advised him that he could be sentenced to a maximum of 3V2 to 7 years in prison, but agreed that the aggregate maximum sentence for both crimes would not exceed 10 years. In addition, the court indicated that it would direct defendant to pay restitution in the amount of $14,151.95. Under the terms of the plea agreement, defendant agreed to waive his right to appeal all issues except for those pertaining to his sentence and his constitutional rights. County Court subsequently sentenced defendant upon his conviction of burglary in the second degree to 10 years in prison, to be followed by five years of postrelease supervision, and upon his conviction of burglary in the third degree to 3V2 to 7 years in prison, with the sentences to run concurrently. In addition, the court ordered defendant to pay restitution in the amount of $14,151.95, a 10% restitution surcharge of $1,415.20, a mandatory felony conviction surcharge of $250 and a crime victim assistance fee of $20. Defendant now appeals. Initially, we find no merit to defendant’s challenge to the severity of his sentence. Defendant has a lengthy criminal record characterized by many theft-related crimes. Notably, he appears *1069to have been on a crime spree prior to pleading guilty as the plea agreement encompassed 13 other arrests for burglary and related offenses. Moreover, defendant could have received consecutive sentences for the crimes to which he pleaded guilty as they involved different victims. In view of the foregoing, we do not find any extraordinary circumstances or an abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v Strauss, 16 AD3d 707, 708 [2005]). Defendant further contends that the amount of restitution ordered is not supported by the record and that County Court erroneously imposed a 10% restitution surcharge. However, inasmuch as defendant did not request a restitution hearing or otherwise contest the amount of restitution ordered during the proceedings before County Court, his challenge to the amount of restitution awarded is not preserved for our review (see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Williams, 28 AD3d 1005, 1011 [2006], lv denied 7 NY3d 819 [2006]; People v Melino, 16 AD3d 908, 911 [2005], lv denied 5 NY3d 791 [2005]). To the extent that defendant failed to object at sentencing to County Court’s imposition of the 10% surcharge, this claim is also not preserved. Nevertheless, were we to consider it, we would find it unavailing given that the enhanced surcharge was supported by the affidavit of the appropriate official as required by Penal Law § 60.27 (8) (cf. People v Simonton, 244 AD2d 1004 [1997], lv denied 91 NY2d 930 [1998]). Therefore, we find no reason to disturb the judgment of conviction. Crew III, J.P, Carpinello, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.

. In an action, pending in the Supreme Court, Nassau County, to recover damages for injuries to the person, defendant appeals from an order of said court, dated June 6, 1960, denying his motion: (a) to remove to the Supreme Court an action pending in the District Court of Nassau County, to recover damages for injury to property, brought by the female plaintiff against said defendant; and (b) to consolidate the District Court action with the Supreme Court action. Order reversed, with $10 costs and disbursements, and motion granted. In our opinion, it was an improvident exercise of discretion to deny consolidation. The personal injuries for which recovery is sought in the Supreme Court action, and the property damage for which recovery is sought in the District Court action, both resulted from the same accident between two automobiles. The female plaintiff, who is the owner of one of the automobiles involved, is the plaintiff who was injured. 'She is seeking to recover damages for injuries to her person and property. Her husband, plaintiff Michael McNichols, seeks to recover damages (in the Supreme Court action) for the loss of her services. By bringing the two separate actions, the plaintiffs are in effect splitting their claims and unnecessarily subjecting the courts and the defendant to separate trials with a possibility of inconsistent awards. Under the circumstances, multiplicity of actions should be avoided and all the claims should be tried in one action in the Supreme Court. Nolan, P. J., Kleinfeld, Christ and Pette, JJ., concur; Brennan, J., not voting.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule. After a correction officer observed petitioner acting in an unusual manner, petitioner was ordered to take a drug test. When a sample of his urine twice tested positive for opiates, he was charged in a misbehavior report with using a controlled substance. Petitioner was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued. *1070We confirm. The misbehavior report, together with the positive urinalysis test results and. related documentation as well as the testimony adduced at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Molina v Selsky, 21 AD3d 1238, 1238-1239 [2005]; Matter of Paige v Goord, 19 AD3d 908, 908 [2005]). Petitioner’s claim that the correction officer who administered the drug test altered the result in retaliation for the dismissal of a prior drug charge presented an issue of credibility for the Hearing Officer to resolve (see Matter of Silverstein v Selsky, 32 AD3d 1100, 1100 [2006]). Moreover, there is nothing in the record to substantiate petitioner’s claim of hearing officer bias or to establish that the determination flowed from any such bias (see Matter of Boatwright v McGinnis, 24 AD3d 1136, 1137 [2005]). Petitioner’s remaining contentions, to the extent they are properly before us, are unavailing. Crew III, J.P., Peters, Carpinello, Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 26, 2005, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct. Claimant worked for the employer as an insurance consultant at a telephone call center from October 2003 until February 2005. After she had previously received both verbal and written warnings concerning her tardiness, she was late returning from her lunch break and was terminated. The Unemployment Insurance Appeal Board disqualified her from receiving unemployment insurance benefits on the ground that she lost her employment due to misconduct, prompting this appeal. An employee’s failure, despite repeated warnings, to comply with an employer’s policy regarding tardiness has been held to constitute disqualifying misconduct (see Matter of Chapman [Commissioner of Labor], 275 AD2d 857 [2000]; Matter of Wayne [Commissioner of Labor], 261 AD2d 768, 769 [1999]). Here, claimant received verbal coaching for tardiness in September *10712004, a documented verbal counseling memo in November 2004 detailing numerous instances of tardiness during the preceding 12 months and a final written warning in December 2004. Nevertheless, in February 2005, she admittedly failed to timely return to her job following a lunch break. In view of this, substantial evidence supports the Board’s finding that claimant was terminated for misconduct. Cardona, EJ., Crew III, Feters, Carpinello and Mugglin, JJ., concur. Ordered that the decision is affirmed, without costs.

In an action to recover a balance claimed to be due under a written contract, defendant appeals from a judgment of the Supreme Court, Queens County, entered January 26,1960, upon a directed verdict for plaintiffs, after a jury trial. Judgment reversed on the law and the facts and a new trial granted, with costs to abide the event. There was testimony by defendant and additional circumstantial evidence: (a) that in 1955, the parties orally agreed that, in consideration of defendant’s promise not to file a petition in bankruptcy, but to liquidate the business in which he was engaged, *649he would be released from any obligation to make further payments under the written contract executed in-1953; and (b) that said oral agreement was performed. Such surrender of a privilege of which defendant had a legal right to avail himself, was a sufficient consideration for the modification of the written agreement (Knit Goods Exch. v. Kresoff, 102 Misc. 156; see Weiss v. Weiss, 266 App. Div. 801). If it be assumed that defendant’s testimony is true, then the question of such oral modification agreement not being in writing is not involved, since it has been executed (Frankel v. Knickerbocker Ice Co., 248 App. Div. 757). Nor is subdivision 2 of section 33 of the Personal Property Law applicable here. That statute, by its terms, applies only where there is an absence of consideration. Accordingly, if defendant’s evidence be accepted as true, it would appear that the proof is sufficient to support his contention that the written agreement of 1953 had been modified and that such modification defeats plaintiffs’ action based on the original agreement. Under the circumstances, the direction of a verdict for the plaintiffs is error (Wearever Upholstery & Furniture Corp. v. Home Ins. Co., 286 App. Div. 93, 94-95; Dalton v. City of New York, 283 App. Div. 1104). Beldock, Acting P. J., Ughetta, Christ and Pette, JJ., concur.

Mugglin, J. Appeal from an order of the Supreme Court (Ceresia, Jr., J.), entered March 24, 2006 in Rensselaer County, which granted plaintiffs motion for partial summary judgment on the issue of liability. In this personal injury action, following joinder of issue, plaintiff sought and was granted partial summary judgment on the issue of liability. Her evidence, affidavits of two eyewitnesses—one who was following her vehicle and one following the vehicle of defendant Joshua A. Lajeunesse—and an affidavit from the investigating State Trooper, established a prima facie entitlement to judgment by proving that the vehicle operated by Lajeunesse crossed over the double yellow lines and struck plaintiffs vehicle head-on, thereby causing her serious personal injury. Defendants appeal, claiming that summary judgment is precluded since further discovery is necessary and genuine triable issues of fact exist regarding defendants’ affirmative defense of a medical emergency and the comparative negligence of plaintiff arising from her inadequate response to Lajeunesse’s vehicle crossing into her lane of travel. We affirm. In our view, the evidence submitted by plaintiff in support of her motion for partial summary judgment establishes the absence of any genuine material issue of fact, thereby shifting the burden to defendants to come forward with any competent admissible evidence which may create an issue which would preclude summary judgment (see Spiratos v County of Chenango, 28 AD3d 863, 863 [2006]; Chisholm v Mahoney, 302 *1072AD2d 792, 793 [2003]). Initially, we note that unexcused violations of the Vehicle and Traffic Law, such as crossing a double yellow line, constitute negligence per se (see Baker v Joyal, 4 AD3d 596, 597 [2004], lv denied 2 NY3d 706 [2004]; Gadon v Oliva, 294 AD2d 397, 397-398 [2002]). However, violations which give rise to negligence per se may be excused if the accident clearly results from an unforeseen and unexpected medical emergency (see Cook v Garrant, 27 AD3d 984, 985 [2006]; State of New York v Susco, 245 AD2d 854, 855 [1997]). Lajeunesse’s self-serving affidavit in which he asserts a belief that he “blacked out,”1 unsupported by any corroborating medical evidence, is simply insufficient to create any issue of fact regarding an unforeseeable emergency situation (see Commercial Union Ins. Co. v V. Garofalo Carting, 288 AD2d 154, 155 [2001]; Chiaia v Bostic, 279 AD2d 495, 496 [2001]). Further, defendants’ present assertion regarding the conduct of plaintiff after Lajeunesse’s vehicle crossed the yellow line is simply speculation and conjecture and wholly insufficient to preclude summary judgment. Finally, defendants’ assertion that partial summary judgment is precluded by the necessity for further discovery is without merit.2 The record reveals that defendants have had between 18 and 24 months in which to pursue whatever discovery they believe necessary to ascertain the facts. Under these circumstances, we find no abuse of discretion in Supreme Court’s conclusion that defendants have had ample opportunity to pursue discovery and that further discovery based upon the speculative assertion that facts sufficient to defeat plaintiffs motion for partial summary judgment may be discovered are simply insufficient. Moreover, no evidence exists that Lajeunesse was not operating the vehicle in the course of his employment and with the express permission of the owner. Cardona, EJ., Mercure, Carpinello and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs. . We note that, although Lajeunesse denies any memory of being interviewed at the scene by the State Trooper, he told the investigating Trooper that he may have fallen asleep. . Defendants assert that discovery is necessary to determine whether any foreign objects were in Lajeunesse’s lane of travel, whether their truck experienced mechanical difficulties, and whether the nonparty witnesses’ ability to observe was affected by their line of sight, the position of the sun or medication that they may have ingested. These contentions are all speculative and could have been pursued by defendants in the time frame between the institution of the action and the motion for partial summary judgment.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule. Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for cannabinoids. He was found guilty of the charge following a tier III disciplinary hearing and the determination was confirmed on administrative appeal. This CPLR article 78 proceeding ensued. Initially, petitioner claims that the request for urinalysis test form did not properly establish the chain of custody because it failed to set forth who had possession of the sample after it was removed from the refrigerator, between testings and before the sample was destroyed. Our review of the form indicates that it adequately complied with the regulatory requirements insofar as those correction officers who handled the sample made the appropriate notations on the form (see 7 NYCRR 1020.4 [e] [1] [i]; see e.g. Matter of Cooper v Selsky, 20 AD3d 832, 833 [2005]; Matter of Satchell v Coughlin, 178 AD2d 795, 796 [1991]). Thus, the Hearing Officer properly determined that the form established an unbroken chain of custody. Because petitioner declined the Hearing Officer’s repeated offers to call those correction officers as witnesses so that petitioner could question them as to their custody and control of the sample, his contention that the Hearing Officer circumvented his right to call them as witnesses is belied by the record. Accordingly, the misbehavior report, together with the positive test results and related documentation, provide substantial evidence supporting the determination of guilt (see Matter of Dziedzic v Goord, 305 AD2d 826 [2003]). Finally, there is no merit to petitioner’s claim that the Hearing Officer was biased or that the determination at issue flowed from any alleged bias (see Matter of Boatwright v McGinnis, 24 AD3d 1136, 1137 [2005]). *1074Spain, J.P, Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules. While a correction officer was attempting to frisk petitioner with a handheld metal detector, petitioner kept moving his head and ignored the officer’s directive to stop, ultimately falling to the floor. As a result, he was charged in a misbehavior report with refusing a direct order and failing to comply with frisk procedures. He was found guilty of these charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued. We confirm. Substantial evidence, consisting of the misbehavior report and videotape of the incident, supports the determination of guilt (see Matter of Brown v Goord, 9 AD3d 646, 647 [2004], lv denied 3 NY3d 612 [2004]; Matter of Montcrieft v Goord, 308 AD2d 648, 648 [2003]). Contrary to petitioner’s claim, the hearing was conducted in a timely manner as valid extensions, necessitated by petitioner’s request for documentation, were obtained within 14 days of the writing of the misbehavior report (see Matter of Farrell v Selsky, 32 AD3d 1103, 1104 [2006]; Matter of Cornwall v Goord, 284 AD2d 763, 764 [2001]). Petitioner’s remaining contentions are unpreserved for our review due to his failure to raise them at the hearing or in his administrative appeal. Peters, J.P, Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Crew III, J.E Appeal from an order of the Family Court of Ulster County (Mizel, J.), entered May 12, 2006, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody. Respondent Mercedes E Mori (hereinafter respondent) is the biological mother of four children, two of whom, Solomon and Isaiah (born in 1995), are the subject of this proceeding. By order entered August 30, 2001, Family Court (Hummel, J.) granted respondent Louis Ciampa Sr., respondent’s father, custody of Solomon, Isaiah and their older brother, Adam. Upon respondent’s appeal, this Court affirmed (Matter of Ciampa v Ciampa, 301 AD2d 876 [2003]). At the time that Ciampa was granted custody of his grandchildren, he had been divorced from petitioner, respondent’s mother, for some time. After Ciampa was awarded custody, however, petitioner began to travel from her home in Connecticut on weekends to help care for her grandchildren. In 2002, Ciampa and petitioner reconciled, and petitioner moved back into Ciampa’s home. In October 2003, Ciampa and petitioner remarried, at which time petitioner assumed responsibility for the day-to-day care of her grandchildren. Additional proceedings between the parties ensued including, insofar as is relevant to the instant appeal, an application filed by respondent in May 2003 seeking custody of her children. By order entered December 11, 2003, Family Court (Nichols, J.), upon stipulation of the parties, again awarded Ciampa custody of Adam, Solomon and Isaiah and, additionally, increased respondent’s visitation periods with the children. Ultimately, in December 2005, petitioner commenced the instant modification proceeding seeking joint custody of Solomon and Isaiah.* Following a hearing, Family Court (Mizel, J.), granted petitioner’s application and awarded petitioner and Ciampa joint custody of Solomon and Isaiah. This appeal by respondent ensued. We affirm. As a preliminary matter, although petitioner’s application sought to modify the original August 2001 custody order, Family Court treated it as one to modify the resulting December 2003 order, apparently electing to overlook the irregularity in petitioner’s pleading (see CFLR 2001). As we perceive no prejudice or abuse of discretion in this regard, Family Court’s decision on this point will not be disturbed. *1076Turning to the merits, we reject respondent’s contention that petitioner failed to demonstrate a sufficient change in circumstances to warrant modification of the December 2003 custody order. While it is true that petitioner and Ciampa remarried shortly before entry of the December 2003 order, the resulting stability the couple has established for the children as a family unit, together with petitioner’s now daily influence over and presence in the children’s lives, is sufficient to demonstrate the requisite change in circumstances. As for whether modification of the prior custody order is in the children’s best interests, we agree with Family Court that the record as a whole fails to disclose a credible reason why petitioner should not have joint custody of Solomon and Isaiah. Although respondent testified as to her strained relationship with petitioner and alleged that such relationship has, in turn, negatively impacted her relationship with her children, Family Court expressly discredited respondent’s testimony on this point. For her part, petitioner testified that she has never prevented respondent from having a relationship with Solomon and Isaiah and that she would abide Family Court’s written directives regarding respondent’s visitation rights. As Family Court’s decision has a sound and substantial basis in the record as a whole, it is affirmed. Respondent’s remaining challenges to petitioner’s application, to the extent not specifically addressed, have been examined and found to be lacking in merit. Peters, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, without costs. Adam has attained majority and is not the subject of this proceeding.

In an action to have a zoning ordinance declared unconstitutional and void, insofar as it affects land owned by the plaintiff, defendants appeal from an order of the Supreme Court, Suffolk County, dated June 28, 1960, denying their motion for summary judgment dismissing the complaint (Rules Civ. Prac., rule 113). Plaintiff’s land is in a Residence A district. Plaintiff petitioned the defendant Town Board to reclassify the land to a Business 3 district, so as to permit the erection of a shopping center. After a hearing the Town Board denied the application. Plaintiff now brings this action to void the ordinance on the ground that it is confiscatory and on the ground that the defendant Planning Board (not the Town Board) encouraged plaintiff to improve adjoining land in the expectation that a shopping center would be permitted on the subject land. Order reversed, with $10 costs and disbursements, and motion for summary judgment granted. On this motion for summary judgment defendants established that there was a factual basis for classifying the subject land as Residence A. Such classification being a legislative act it is entitled to the strongest presumption of validity (Church v. Town of Islip, 8 N Y 2d 254, 258). Against such a showing on the part of defendants, it was incumbent upon the plaintiff, as a basis for denial of the motion, to show facts sufficient to require a trial of any material issue of fact (Rules Civ. Prac., rule 113). More specifically, plaintiff should have alleged facts showing a triable issue as to whether the land could or could not be reasonably adapted to any use permitted in a Residence A district (Levitt v. Incorporated Vil. of Sands Point, 6 N Y 2d 269, 273; Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493, 499). The complaint and plaintiff’s affidavit fail to set forth any facts sufficient to raise such issue or any other material issue. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

Spain, J. Appeal from an amended decision of the Workers’ Compensation Board, filed December 5, 2005, which ruled that claimant’s right knee injury was a continuation of an injury from a previously established case and denied his claim for workers’ compensation benefits. *1077Claimant, an inspector for the New York City Department of Buildings, had his case established for injuries to his neck, back and right knee stemming from a May 24, 1999 fall down a flight of stairs. He also settled a third-party personal injury lawsuit arising out of that incident for $137,500. Claimant subsequently filed a second claim for workers’ compensation benefits, alleging that on June 19, 2001 he developed a pseudo-meniscal cyst in his right knee. A Workers’ Compensation Law Judge determined that the development of the cyst gave rise to a separate case and was not a continuation of the injury resulting from the May 1999 incident. Upon review, the Workers’ Compensation Board rescinded that decision, finding that the cyst was causally related to the May 1999 incident and, therefore, did not constitute a new injury for workers’ compensation purposes. Claimant now appeals. We affirm. The resolution of conflicting medical evidence, particularly when it concerns the issue of causation, lies within the province of the Board (see Matter of Darling v Transport Drivers, Inc., 35 AD3d 945, 946 [2006]; Matter of Mayers v Kings County Hosp., 29 AD3d 1239, 1240 [2006]; Matter of Raub v Cutler Hammer, 1 AD3d 785, 786 [2003]). Here, the impartial orthopedic surgeon appointed by the Board explained that, based upon his examination of claimant and review of his medical history, claimant’s condition was best classified as a synovial cyst which most plausibly formed due to the leakage of synovial fluid following the knee surgeries that claimant underwent in connection with the May 1999 incident. Alternatively, the impartial orthopedist testified that the cyst could have developed from a degenerating meniscus tear. In any event, he opined that the cyst did not form as the result of a secondary injury and, instead, was related to the May 1999 incident. As the foregoing constitutes substantial evidence in support of the Board’s amended decision, it will not be disturbed despite the existence of medical evidence proffered by claimant which could arguably lead to a different conclusion (see Matter of Bunnell v Sangerfield Inn, 35 AD3d 1021, 1022-1023 [2006]; Matter of Walker v TNT Red Star Express, 25 AD3d 945, 946-947 [2006]; Matter of Coleman v Consolidated Edison, 308 AD2d 642, 643-644 [2003]). We have considered claimant’s remaining contentions and find them unpersuasive. Cardona, P.J., Peters, Carpinello and Kane, JJ., concur. Ordered that the amended decision is affirmed, without costs.

Carpinello, JJ. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Board of Parole which revoked petitioner’s parole. In 1983, petitioner was convicted of rape in the first degree and was sentenced to 8h to 25 years in prison. Following his third release to parole supervision in April 2004, petitioner was charged with violating the terms of his parole when he was observed taking photographs of women in the vicinity of a department store in Delaware County. Specifically, he was charged with violating the conditions which prohibited him from leaving Chenango County, from possessing photographic equipment without his parole officer’s consent and from threatening the safety and well-being of others. Following a hearing, an Administrative Law Judge (hereinafter ALJ) dismissed the first charge, but sustained the other two. The ALJ recommended that petitioner’s parole be revoked and that he be held until his maximum expiration date. The Board of Parole affirmed the ALJ’s decision and adopted his recommendation, resulting in this CPLR article 78 proceeding. “Initially, we note that our review of the determination at issue ‘is limited to an examination of the record to ascertain whether there exists substantial evidence to support it’ ” (Matter of Faulkner v New York State Div. of Parole, 25 AD3d 1047, 1048 [2006], quoting Matter of Bratton v New York State Bd. of Parole, 23 AD3d 879, 879 [2005]). Based upon our review of the record, substantial evidence supports the Board’s finding that petitioner violated the conditions of his parole which prohibited him from possessing photographic equipment and from threatening the safety and well-being of others. All of the testimony, including petitioner’s, established that petitioner used a camera to photograph women in the parking lot of the department store. The manager testified that a customer who reported the incident indicated that it made her feel uncomfortable. An associate in the photo lab, whose picture was unknowingly taken by petitioner, testified that the nature of the photographs concerned her because they depicted unwitting female subjects *1079leaning over their cars. Petitioner’s assertion of an innocent excuse for taking the photographs created a credibility issue for the Board to resolve (see Matter of Williams v New York State Div. of Parole, 23 AD3d 800, 800-801 [2005]) and, in any event, does not negate the fact that his behavior violated the clear conditions of his parole. Petitioner’s remaining contentions are either not preserved for our review or are lacking in merit. Cardona, PJ., Mercure, Crew III, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner failed to cooperate with correction officers while he was being placed in handcuffs and removed from his cell for an emergency sick call. During the incident, petitioner ignored a correction officer’s directive to stop resisting, which, in turn, caused the officer’s arm to be pulled into the cell door hatch and his body to strike the cell door. When petitioner was eventually removed from his cell, he spit at the officer. Petitioner was later charged in a misbehavior report with assaulting staff, engaging in violent conduct, refusing a direct order, interfering with an employee and committing an unhygienic act. At the conclusion of a tier III disciplinary hearing, he was found guilty of the charges, except for assaulting staff. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding. We confirm. The detailed misbehavior report provides substantial evidence supporting the determination of guilt (see Matter of Applewhite v Goord, 22 AD3d 985, 986 [2005]; Matter of Russell v Selsky, 22 AD3d 998, 999 [2005], lv dismissed 7 NY3d 750 [2006]). Contrary to petitioner’s claim, we find that he was afforded meaningful employee assistance inasmuch as his assistant provided him with most of the documents requested (see Matter of Fernandez v Goord, 27 AD3d 806, 807 [2006]). Those documents that the assistant did not provide, which allegedly supported petitioner’s retaliation defense, were properly the subject of petitioner’s Freedom of Information Law request *1080(see Public Officers Law art 6). Petitioner’s claim that he was improperly denied witnesses has not been preserved for our review. Crew III, J.P, Peters, Spain, Carpinello and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 2, 2005, which, upon reconsideration, adhered to its prior decision ruling, inter alia, that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed. Claimant worked as a radiologist at two practices in Suffolk County between 1967 and 2004. In 1996, he and some of the physicians with whom he worked established a limited liability partnership, in which claimant held an 11.6% ownership interest, for the purpose of operating a radiotherapy center. Claimant provided the business with an initial investment of $11,000 and a subsequent loan of $100,000. The business was operated by a radiotherapist and claimant did not perform radiology services on its behalf. Claimant filed an application for unemployment insurance benefits in January 2004 after he stopped working at the radiology practice. He received benefits totaling $5,265. Subsequently, however, the Unemployment Insurance Appeal Board ruled that claimant was not totally unemployed due to his affiliation with the limited liability partnership and that he was ineligible to receive benefits. In addition, the Board charged him with a recoverable overpayment pursuant to Labor Law § 597 (4) and reduced his right to receive future benefits by 116 effective days. The Board adhered to this decision upon reconsideration, resulting in this appeal. We affirm. “A claimant who actively participates in an ongoing business may not be considered totally unemployed even if . . . the claimant’s activities are minimal” (Matter of Restivo *1081[Commissioner of Labor], 24 AD3d 1007, 1007 [2005] [citations omitted]). “The pertinent inquiry is whether the claimant stands to gain financially from the continued operation of the business” (id. [citations omitted]; see Matter of Sichel [Commissioner of Labor], 301 AD2d 771, 772 [2003]). In the case at hand, claimant held an ownership interest in the limited liability partnership, loaned it money, received a partial repayment of the loan, was an authorized signatory on the business checking account, signed checks while receiving unemployment insurance benefits and received a tax credit related to the partnership business. In view of this, substantial evidence supports the Board’s finding that claimant stood to gain financially from the existence of the partnership business and was not totally unemployed (see e.g. Matter of Oles [Commissioner of Labor], 21 AD3d 1188, 1189 [2005]). Furthermore, given his receipt of an informational booklet, claimant’s failure to disclose his affiliation with the partnership when certifying for benefits supports the Board’s decision to charge him with a recoverable overpayment pursuant to Labor Law § 597 (4) (see Matter of Rozestraten [Commissioner of Labor], 27 AD3d 864, 865 [2006]). Cardona, EJ., Crew III, Feters, Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 16, 2006, which, upon reconsideration, adhered to its prior decision ruling that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed. Claimant and her husband own and operate a diner which is open each year from April to October. In April 2004 the business was incorporated and claimant was designated as the secretary of the corporation. In October 2004 claimant filed for unemployment insurance benefits. In her application, claimant stated that she was not the officer of a corporation. Ultimately, the Unemployment Insurance Appeal Board found claimant in*1082eligible for benefits because she was not totally unemployed and charged claimant with a recoverable overpayment of benefits. Upon reconsideration, the Board adhered to its original decision. Claimant appeals. We affirm. A claimant who is a principal of a corporation will not be considered totally unemployed even if the claimant’s participation is minimal, as long as the claimant benefits financially from the continued existence of the corporation (see Matter of Walters [Commissioner of Labor], 31 AD3d 852 [2006]; Matter of Singer [Commissioner of Labor], 30 AD3d 928, 929 [2006]). Here, claimant was a signatory on the corporate, checking account and wrote at least one check during the period in question. She also benefitted financially from corporate income reported on her personal income tax return. Given these facts, we find that substantial evidence supports the Board’s finding that claimant was not totally unemployed (see Matter of Walters [Commissioner of Labor], supra at 852; Matter of Koenes [Commissioner of Labor], 30 AD3d 873, 873-874 [2006]; Matter of Sierpinski [Commissioner of Labor], 308 AD2d 668, 669 [2003]). Further, claimant’s failure to disclose her corporate affiliation despite receiving an informational booklet describing reporting requirements provides substantial evidence to support the Board’s finding that the overpayments were recoverable (see Matter of Gigante [Commissioner of Labor], 32 AD3d 602, 604 [2006]; Matter of McHugh [Commissioner of Labor], 305 AD2d 923, 924 [2003]). Mercure, J.E, Crew III, Peters, Spain and Rose, JJ., concur. Ordered that the decision is affirmed, without costs.

Appeals from five decisions of the Unemployment Insurance Appeal Board, filed February 24, 2006, which, upon reconsidera*1083tion, adhered to its prior decisions ruling that Life Alert Emergency Response, Inc. was liable for additional unemployment insurance contributions based on remuneration paid to claimants and others similarly situated. Claimants worked as direct sellers for Life Alert Emergency Response, Inc., maker and provider of personal emergency response devices and related services. After termination of their employment, claimants filed for unemployment insurance benefits. The Commissioner of Labor initially determined that claimants were employees of Life Alert and that Life Alert was liable for additional contributions based on remuneration paid to claimants and to all others similarly situated. Life Alert objected on the ground that claimants were independent contractors. After a hearing, the Administrative Law Judge sustained the initial determinations and the Unemployment Insurance Appeal Board affirmed. Subsequently, upon reconsideration, the Board adhered to its prior decisions. Life Alert now appeals. The existence of an employer-employee relationship is a factual issue for the Board to resolve and its determination will not be disturbed if it is supported by substantial evidence, even if other evidence in the record could support a contrary conclusion (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of O’Neil-Haight [County of Yates—Commissioner of Labor], 34 AD3d 1041, 1042 [2006]). Although all aspects of the arrangement must be examined, “evidence of control over the results produced or the means used to achieve those results are relevant considerations, with the latter being more important” (Matter of La Fleur [LTI, Inc.—Commissioner of Labor], 27 AD3d 935, 936 [2006], lv dismissed 7 NY3d 783 [2006]; see Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d 733, 735 [2004]; Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725, 726 [1984]). Here, evidence was presented indicating, among other things, that Life Alert recruited its direct sellers through advertisements and referrals and required them to complete application forms (see Matter of Walker [Parents Info. Group for Exceptional Children—Commissioner of Labor], 271 AD2d 769, 769 [2000]), provided them with training and scripts for their sales calls (see Matter of Booth [Eagle Intl., Inc.—Commissioner of Labor], 26 AD3d 692, 693 [2006]; Matter of Venettozzi [Secured-Care Mgt. Servs.—Sweeney], 234 AD2d 845 [1996]), imposed sales quotas which had to be met to avoid termination (see Matter of MacFarlane [Aid Assn. for Lutherans Corp.—Commissioner of Labor], 35 AD3d 1076, 1077 [2006]), set their commission rate and *1084product prices and handled and reviewed their customer complaints (see Matter of McCarthy [Monsieur Touton Selection—Commissioner of Labor], 276 AD2d 988, 988 [2000]; Matter of Esposito [National Write Your Congressman—Commissioner of Labor], 264 AD2d 927, 928 [1999]). Life Alert also provided them with sales leads, desk space, mailboxes and telephones (see Matter of O’Toole [Biomet Marx & Diamond, Inc.—Commissioner of Labor], 13 AD3d 767, 768 [2004]). In addition, evidence was presented indicating that the direct sellers were encouraged to work certain set shifts and were required to sign in each day they worked and to attend meetings concerning the methods they were to use to sell the products (see Matter of Fratello [M & R Consumer Goods—Commissioner of Labor], 271 AD2d 880, 881 [2000]; Matter of Dolhon [United Group Agency of N.Y.—Sweeney], 236 AD2d 749 [1997]). Under these circumstances, we find substantial evidence in the record to support the Board’s determination that Life Alert exercised sufficient overall control to establish an employer-employee relationship (see Matter of Priester [City & Suburban Delivery Sys.—Commissioner of Labor], 273 AD2d 654, 654-655 [2000], appeal dismissed 96 NY2d 897 [2001]). The existence of a written agreement identifying claimants as independent contractors does not compel a different result (see Matter of Kelly [Frank Gallo, Inc.—Commissioner of Labor], 28 AD3d 1044, 1045 [2006], lv dismissed 7 NY3d 844 [2006]). Accordingly, we affirm. Mercure, J.E, Feters, Mugglin, Rose and Kane, JJ., concur. Ordered that the decisions are affirmed, without costs.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 3, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct. Claimant worked as a payroll specialist at a hospital. She was terminated from her position after her employer discovered that she inaccurately entered the date of an employee’s pay increase which resulted in an overpayment of wages. The employee concerned was claimant’s fiancé. The Unemployment Insurance Appeal Board disqualified claimant from receiving unemploy*1085ment insurance benefits on the ground that her employment was terminated due to misconduct. Claimant appeals. We affirm. An employee’s apparent dishonesty has been held to constitute disqualifying misconduct (see Matter of Smith [Commissioner of Labor], 23 AD3d 973, 974 [2005]; Matter of Susswein [American Socy. of Composers, Authors & Pubis.— Commissioner of Labor], 18 AD3d 1091, 1091 [2005]). Here, claimant’s supervisor stated that she believed that claimant intentionally falsified payroll records in order to benefit her fiancé. Although claimant maintained that the inaccuracy was an innocent mistake, this presented an issue of credibility for the Board to resolve (see Matter of Keeler [Commissioner of Labor], 15 AD3d 718, 719 [2005]). Inasmuch as substantial evidence supports the Board’s decision, we decline to disturb it. Cardona, EJ., Mercure, Spain, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

Carpinello, J. Appeal from an order of the Supreme Court (Hummel, J.), entered December 1, 2005 in Ulster County, which granted defendants’ motion to dismiss the complaint at the close of plaintiffs case. Flaintiff’s pickup truck was the second vehicle behind a stopped school bus at a designated school bus stop when it was rear-ended by another vehicle. He then commenced this negligence case against the local school district, alleging that it negligently designated the stop, and against the bus company, alleging that it negligently operated the bus by stopping at a “dangerous location.” During the course of plaintiffs proof at the ensuing nonjury trial, it was established that neither the school district nor the bus company had ever received any safety complaints about the location of this particular bus stop. In fact, according to the transportation supervisor employed by the *1086school district, the subject stop had been in existence for at least 30 years without incident. Moreover, according to the bus driver herself, she never perceived any danger in the location of this particular stop and that, prior to the subject accident, traffic had always been able to stop behind her at this stop without incident. With respect to the subject accident, it was uncontradicted that the bus driver activated the yellow warning lights on the bus as she gradually approached the stop and that the red warning lights were thereafter activated as the bus stopped. Indeed, two separate vehicles, including plaintiffs truck, were able to safely come to a stop that day. At trial, plaintiff offered no proof that a safer alternative to the designated bus stop was feasible; rather, his theory of liability was that the site distance of the bus stop was less than 500 feet, thus requiring a sign to warn motorists that the bus stop was ahead. The complaint was dismissed at the close of plaintiffs proof on a number of alternative grounds, including proximate cause. Plaintiff now appeals. We affirm. The complaint was properly dismissed. There was no proof submitted by plaintiff that a safer, alternative stop was available (see Gleich v Volpe, 32 NY2d 517, 523 [1973]),* that either the school district or bus company had the authority to place a warning sign on the roadway (see id. at 522; Moshier v Phoenix Cent. School Dist., 199 AD2d 1019, 1020 [1993], affd 83 NY2d 947 [1994]), that either had a duty to request the local municipality to do so (see Moshier v Phoenix Cent. School Dist., supra at 1020) or that any such request would have actually been granted. Supreme Court also correctly determined that no alleged negligence of either the school district or bus company was proven to be a proximate cause of this rear-end collision (see e.g. Sega v Ryder, 287 AD2d 848, 850 [2001]; Masone v Westchester County, 229 AD2d 657, 659 [1996]). By failing to call the driver of the vehicle who rear-ended him as a witness, plaintiff failed to establish that the presence of a warning sign might have prevented the accident. For all these reasons, the complaint was properly dismissed. The remaining issues raised by the parties have been rendered academic and, thus, we do not address them. Cardona, EJ., Spain, Rose and Kane, JJ., concur. Ordered that the order is affirmed, with one bill of costs. Notably, the Court of Appeals held that “[e]vidence of insufficient visibility .. . does not, in and of itself, warrant ... a finding [of school district negligence in its placement of a bus stop]” (Gleich v Volpe, supra at 523).

*1087Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 18, 2005, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct. Claimant worked as a closing shift manager for a department store. Despite prior warnings concerning her absenteeism, claimant failed to report to work or call in on two separate dates and her employment was terminated. The Unemployment Insurance Appeal Board disqualified her from receiving unemployment insurance benefits on the ground that her employment was terminated due to misconduct, prompting this appeal. A claimant’s failure, despite repeated warnings, to abide by an employer’s attendance policy has been held to constitute disqualifying misconduct (see Matter of Franco [Commissioner of Labor], 15 AD3d 828, 829 [2005]; Matter of Williams [Commissioner of Labor], 274 AD2d 805, 805-806 [2000]). In the case at hand, the employer’s representatives testified that after claimant became pregnant, they made an effort to accommodate her work restrictions by reducing her work hours. In fact, they stated that if claimant was scheduled to work more than four hours, she was directed to work only the final four hours of her shift. On the dates at issue, claimant was scheduled to work more than four hours, but did not report to work the last four hours of her shift or call to advise that she would be absent. In view of this, substantial evidence supports the Board’s finding that her employment was terminated for misconduct. Claimant’s contrary testimony that her supervisor told her her shifts would be covered and that she was not directed to cover any portion of her shifts presented a credibility issue for the Board to resolve (see Matter of Kemp [Commissioner of Labor], 25 AD3d 1054, 1054 [2006]). Cardona, EJ., Mercure, Feters, Rose and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

Rose, J. Appeal from an order and judgment of the Supreme Court (Ferradme, J.), entered July 7, 2006 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted certain respondents’ motions to dismiss the petition. Petitioner is a resident of Greene County and a member of respondent Board of Education of the Coxsackie-Athens Central School District. On June 21, 2005, over petitioner’s sole dissenting vote, the Board approved a Taxing Authority Allocation Agreement with respondent Greene County Industrial Development Agency (hereinafter IDA). This agreement provided that a percentage of respondent Coxsackie-Athens Central School District’s share of certain payments in lieu of taxes (hereinafter PILOTs) would be paid to the IDA. By filing a petition on October 21, 2005, petitioner commenced this CPLR article 78 proceeding seeking a judgment annulling the Board’s approval of the Agreement. However, he did not make service upon respondents until mid-February 2006, after he filed an amended pleading adding a declaratory judgment action. The IDA, the Board, the School District and respondent County of Greene (hereinafter collectively referred to as respondents) then moved to dismiss the amended pleading based on, among other things, untimely service. Petitioner cross-moved for an extension of time to serve and bifurcation of the CPLR article 78 proceeding and the action. Supreme Court found service to be untimely, denied an extension and granted respondents’ motions. Petitioner appeals. Initially, we note that petitioner commenced his CPLR article 78 proceeding on the last day before expiration of the applicable four-month statute of limitations (see CPLR 217 [1]) and he did not make service upon any respondent until nearly four months later, far beyond the 15-day period for service provided by CPLR 306-b. However, CPLR 306-b also permits the court to extend the 15-day time period for service “upon good cause shown or in the interest of justice.” Unable to show “good cause” because he offered no explanation for his failure to make timely service, petitioner contends that he should have been given an exten*1089sion of time in the interest of justice because respondents have not been prejudiced and his claims have merit. We, however, are unable to conclude that Supreme Court abused its discretion in denying him such an extension under the circumstances here. While the interest of justice standard permits the trial court to consider factors in addition to an applicant’s diligence (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; de Vries v Metropolitan Tr. Auth., 11 AD3d 312, 313 [2004]), we find that only one relevant factor—the expiration of the statute of limitations—weighs in petitioner’s favor.* Most significantly, we are not persuaded that his claims have merit. General Municipal Law § 858 permits a less than full allocation of PILOTs where the taxing jurisdictions agree, as they did here (see Matter of Glens Falls City School Dist. v City of Glens Falls Indus. Dev. Agency, 196 AD2d 334, 338 [1994]). In addition, petitioner has not shown that there has been a violation of General Municipal Law § 51, which permits taxpayers to sue public officials “ ‘only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes’ ” (Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014, 1016 [1983], quoting Kaskel v Impellitteri, 306 NY 73, 79 [1953], cert denied 347 US 934 [1954]). Here, despite petitioner’s contention to the contrary, there is no illegal gift to a private party because the disputed portion of the School District’s share of the PILOTs will be paid to the IDA, a public benefit corporation, to help achieve a substantial public purpose (see Tribeca Community Assn. v New York State Urban Dev. Corp., 200 AD2d 536, 537 [1994], appeal dismissed 83 NY2d 905 [1994], lv denied 84 NY2d 805 [1994]; Jo & Wo Realty Corp. v City of New York, 140 Misc 2d 154, 160 [1988], affd 157 AD2d 205 [1990], affd 76 NY2d 962 [1990]; see also Matter of La Barbera v Town of Woodstock, 29 AD3d 1054, 1056 [2006], appeal dismissed 7 NY3d 844 [2006]). The benefit such payments will provide to the businesses being located within the industrial parks being developed by the IDA is merely incidental to the public benefit (see Lavin v Klein, 12 AD3d 244, 245 [2004], appeal dismissed 4 *1090NY3d 794 [2005], lv denied 4 NY3d 710 [2005]). Thus, the factor of merit does not support an extension of time. Moreover, the factor of prejudice cannot be said to favor petitioner, because he merely denies in a conclusory manner that respondents will be prejudiced by the delay. The remaining factors of petitioner’s complete lack of diligence as well as his unexplained delay in both making service and seeking an extension of time all support Supreme Court’s ruling (see Slate v Schiavone Constr. Co., 4 NY3d 816, 817 [2005]; Leader v Maroney, Ponzini & Spencer, supra at 107; Della Villa v Kwiatkowski, 293 AD2d 886, 887 [2002]; Carbonaro v Maimonides Med. Ctr., 289 AD2d 437, 438 [2001], lv dismissed 98 NY2d 642 [2002]; cf. de Vries v Metropolitan Tr. Auth., supra at 313). In light of this, the parties’ remaining arguments are academic. Cardona, EJ., Spain, Carpinello and Kane, JJ., concur. Ordered that the order and judgment is affirmed, without costs. There is no dispute that petitioner’s CPLR article 78 claims are now time-barred. Since petitioner’s declaratory judgment causes of action are based on the same administrative action and seek the same relief as in his CPLR article 78 petition, namely annulment of the Board’s approval of the Agreement, the four-month statute of limitations is applicable to those claims as well and would bar them if they were reasserted after dismissal (see New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 201 [1994]; Matter of Riverkeeper, Inc. v Crotty, 28 AD3d 957, 959 [2006]; Trager v Town of Clifton Park, 303 AD2d 875, 876 [2003]).

Lahtinen, J. (1) Cross appeals from an order of the Supreme Court (Coccoma, J.), entered June 16, 2006 in Otsego County, as amended by an order of the said court, entered June 23, 2006 in Otsego County, upon a decision of the court in favor of plaintiff, and (2) appeal from the judgment entered thereon. This dispute centers on the value of plaintiff’s 20 shares of stock in defendant Royce International Eyewear, Inc. (hereinafter RIE), a corporation that sells eyeglass frames. Defendant William E. Royce owns 60 of the corporation’s 100 shares of stock, plaintiff owns 20 shares and two other individuals own 10 shares each. In July 1999, the four stockholders signed a Third Amendment to Common Stock Transfer Agreement which provided, among other things, that if a minority stockholder left his or her employment at RIE, Royce would have the right to that person’s stock at a price provided in the agreement. The agreed upon price of the stock was set forth in the agreement at $5,560 per share for the period of September 1, 1998 to August *109131, 1999, and it provided that the shareholders could stipulate in writing to a new value each subsequent year. Where, as here, they failed to so stipulate, paragraph 3 (d) provided in pertinent part that the value would be “the most recent stipulated value plus (or minus) any increases (or decreases) in the value of the corporation by reason of acquisition or sale of assets, increase or decrease in retained earnings of the corporation, and/or change in any other factor affecting the worth of the corporation.” On September 30, 2003, plaintiff resigned from his position at RIE and a disagreement ensued regarding the value of his stock, resulting in the current litigation. Following a nonjury trial, Supreme Court valued plaintiffs 20 shares at $6,375.31 per share, subtracted $35,903.13 (the amount of a bank loan of plaintiff that defendants had assumed) for a total of $91,603.07 to be paid upon the transfer of the stock to Royce. The court further awarded $4,656.14 for undistributed profits of RIE owed to plaintiff. Defendants appealed and plaintiff cross-appealed. We are unpersuaded by defendants’ argument that Supreme Court erred in not finding that an enforceable verbal contract existed in which plaintiff agreed to sell his 20 shares to Royce for $60,000. Although plaintiff acknowledged that such an offer was made by Royce, plaintiff further unequivocally stated that he rejected the $60,000 offer. Royce provided no testimony to the contrary, rendering his argument that he “substantially performed” the oral agreement by assuming plaintiffs bank loan baseless. Defendants’ assertion that any value placed on the stock by utilizing the formula set forth in paragraph 3 (d) was enforceable only if Royce agreed to such valuation in writing is supported, if at all, by an ambiguous provision of the Stock Transfer Agreement. Since Royce acknowledged that his counsel drafted that agreement, the ambiguity is construed against him (see Leo v Stevens, 307 AD2d 453, 454 [2003], lv denied 1 NY3d 502 [2003]). Moreover, notwithstanding Royce’s agreement in writing to a stock value, upon plaintiff’s objection to that value, Supreme Court still had to determine whether the value was correctly computed pursuant to the formula set forth in paragraph 3 (d). Accordingly, we discern no reason to depart from Supreme Court’s interpretation of the agreement regarding this issue. Next, both parties take issue with Supreme Court’s calculation of the stock value. Supreme Court took the last stipulated value of $5,560 and made adjustments thereto based upon the evidence it found credible from the conflicting proof presented. After independently weighing the evidence in this nonjury case *1092and giving due deference to credibility and weight determinations by the trial court (see Poli v Lema, 24 AD3d 981, 983 [2005]; Riggs v Benning, 290 AD2d 716, 717 [2002]), we are unpersuaded that Supreme Court’s determinations should be disturbed. The remaining arguments have been considered and found unavailing. Crew III, J.E, Peters, Mugglin and Kane, JJ., concur. Ordered that the order and judgment are affirmed, without costs.

Lahtinen, J. Appeal from a judgment of the Supreme Court (Teresi, J.), entered August 25, 2006 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding that petitioners do not qualify for support payments pursuant to the Orange County Onion Producers Support Program. The Federal Farm Security and Rural Investment Act of 2002 (enacted in May 2002) provided that the United States Secretary of Agriculture “shall use $10,000,000 of the funds of the Commodity Credit Corporation to make a grant to the State of New York to be used to support onion producers in Orange County, New York, that have suffered losses to onion crops during 1 or more of the 1996 through 2000 crop years” (Pub L 107-171, § 10106). Respondent determined that the funds should be distributed to farmers still involved in growing onions—an interpretation urged by the United States Representative whose district included Orange County—and, thus, respondent planned to provide the funds to farmers who continued growing onions during 2001 and 2002. Petitioners, onion farmers who did not meet the continued growing requirement, commenced a federal action claiming that they were being improperly deprived of a share of the federal funds. That action was dismissed on the ground that the statute did not give rise to a privately enforceable federal right. This proceeding ensued and Supreme *1093Court dismissed the petition, holding that there was a rational basis for respondent’s determination that Public Law 107-171, § 10106 applied only to ongoing onion farms. Petitioners appeal. The appeal is moot. Following Supreme Court’s decision, petitioners did not seek a stay pending appeal and respondent has since distributed all the remaining federal funds provided under Public Law 107-171, § 10106. The relief sought in the petition is “now either impossible to grant or wholly untenable” (Matter of E.W. Tompkins Co., Inc. v Board of Trustees of Clifton Park-Halfmoon Pub. Lib., 27 AD3d 1046, 1047-1048 [2006], lv denied 7 NY3d 704 [2006]; see Matter of Save the Pine Bush v Cuomo, 200 AD2d 859, 860 [1994], lv denied 83 NY2d 884 [1994]), and no exception to the mootness doctrine has been established (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]). Even if we were to grant the petition, the federal funds earmarked under the statute are no longer available and there is no indication that the group named in the statute will receive a like allotment of similarly conditioned federal funds in the near future. The other issues advanced on appeal are academic. Mercure, J.P., Peters, Carpinello and Rose, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.

Mercure, J. Appeal from an order of the Supreme Court (Feldstein, J.), entered September 6, 2005 in Clinton County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, inter aha, denied petitioner’s application for poor person status. In 1997, petitioner was convicted of rape in the first degree, three counts of rape in the third degree, sodomy in the third degree, sexual abuse in the first degree, attempted rape in the first degree and attempted sodomy in the first degree. The sentences were imposed both concurrently and consecutively with the harshest being a 25-year determinate prison term on the first degree rape conviction. Petitioner commenced this combined action and proceeding seeking habeas corpus relief *1094and a declaration that Penal Law § 130.16 is unconstitutional. Supreme Court declined to issue a writ of habeas corpus and, with respect to the part of the matter seeking a declaratory judgment, the court took no action on petitioner’s request for poor person status pending receipt of an attorney’s certificate of merit under CPLR 1101 (b) within 60 days. While petitioner subsequently filed a purported certificate, it was not executed by an attorney; rather, petitioner authored it himself. Supreme Court found the certificate deficient and accordingly denied petitioner’s request for permission to proceed as a poor person. Petitioner now appeals from the denial of poor person relief. We affirm. Under CPLR 1101 (b), a court may direct the filing of an attorney’s certificate of merit when a party is seeking poor person relief. Citing to the provisions under that statute pertaining to fees for inmates (see CPLR 1101 [f]), petitioner contends that Supreme Court’s direction that he file an attorney’s certificate of merit was in error. We find petitioner’s argument unavailing. CPLR 1101 (a) requires a court to review poor person applications on their merits. This necessity is not obviated by the fact that the applicant is a prison inmate (see Sledge v Hesson, 274 AD2d 777, 778 [2000]; Matter of Benyi v Broome County Sheriff’s Dept., 158 AD2d 869, 870 [1990]). In addition, even if the court erred in requiring a certificate executed by an attorney, we agree with Supreme Court that petitioner’s averments in regard to his case did not constitute an adequate statement of merit (cf. Matter of Benyi v Broome County Sheriff’s Dept., supra at 870-871). Petitioner’s remaining contentions have been considered and rejected for lack of merit. Cardona, PJ., Peters and Carpinello, JJ., concur. Ordered that the order is affirmed, without costs.

Kane, J. Appeal from a decision of the Workers’ Compensa*1095tion Board, filed February 28, 2005, which ruled that claimant did not sustain a causally related consequential injury. Following claimant’s November 2002 accident wherein he slipped on wet steps while working as a maintenance assistant at Auburn Correctional Facility in Cayuga County, his case was established for a work-related right knee injury. Claimant underwent right knee surgery in April 2003 and subsequently requested further action on his case, alleging that he suffered a consequential aggravation of chronic obstructive pulmonary disease (hereinafter COPD). A hearing was conducted, after which a Workers’ Compensation Law Judge established that claim as well. Upon review, the Workers’ Compensation Board reversed on the basis that claimant’s medical evidence was insufficient to establish that his COPD was caused by his right knee injury. Claimant now appeals. Whether claimant’s COPD consequentially arose from the knee injury or resulting surgery was a factual question for resolution by the Board (see Matter of Wallace v Oswego Wire, Inc., 29 AD3d 1057, 1058 [2006]; Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845, 846 [2002]). Claimant, in support of his claim for aggravation of COPD, proffered a correspondence from his doctor opining that claimant’s complaints of shortness of breath and decline in respiratory status were “probably” the result of his knee surgery. Claimant also offered a medical report from his doctor indicating that the surgery “appears” to have triggered the worsening of his respiratory condition. In our view, the Board acted within its authority in rejecting claimant’s medical evidence as speculative (see Matter of Chinkel v Fair Harbor Fire Dept., 295 AD2d 829, 829-830 [2002]). In that regard, we note that the Board was free to discount claimant’s evidence even though there was no contrary evidence in the record pertaining to the issue of causation (see Matter of Musa v Nassau County Police Dept. 276 AD2d 851, 852 [2000]). Claimant’s remaining assertions, to the extent not specifically addressed herein, have been considered and found to be unavailing. In view of the foregoing, the Board’s decision is affirmed. Mercure, J.P., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

In an action to recover damages for injuries to person and property caused by the overturning of a truck owned and operated by defendant, said defendant appeals from an order of the Supreme Court, Queens County, dated June 8, 1960, granting summary judgment in favor of plaintiffs and striking out defendant’s answer, pursuant to rule 113 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion denied. If it be assumed, as plaintiffs assert, that the proof submitted was sufficient to establish negligence prima facie on the part of defendant, judgment in favor of plaintiffs was, nevertheless, not warranted as a matter of law (Rules Civ. Prac., rule 113; George Foltis, Inc., v. City of New York, 287 N. Y. 108; Nixon v. New York Cent. R. R. Co., 10 A D 2d 870). Nolan, P. J., Beldoek, Kleinfeld and Brennan, JJ., concur; Pette, J., dissents and votes to affirm, with the following memorandum: Plaintiffs charge defendant with negligence, first, in attempting to traverse the private dirt road with a multi-ton truck carrying a nine-ton load of concrete mix; and second, after the truck became mired and had listed, in trying to extricate the listing truck without first removing the load. Defendant offers an explanation for the first, saying that it relied on the assurance of two men on the job that the road could safely be used for the purpose, other heavy equipment having previously traversed it without trouble. This may be enough to raise an issue with respect to the first act of negligence charged. However, defendant offers no excuse or explanation for the second, namely, its failure to remove the concrete before attempting to right the listing truck. The inference that the truck overturned and fell into plaintiffs’ property because of defendant’s negligence in this respect, is not only reasonable but is, in my opinion, inescapable in the absence of an explanation consistent with reasonable care (George Foltis, Inc., v. City of New York, 287 N. Y. 108, 121; Gerard v. Inglese, 11 A D 2d 381; Richard Equip. Corp. v. Manhattan Ind. Contr. Co., 9 A D 2d 691).

Mercure, J.E Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230-c [5]) to review a determination of the Administrative Review Board for Professional Medical Conduct which, inter alia, censured petitioner. Petitioner is a licensed orthopedic surgeon and Chief of Orthopedics and Rehabilitation at North General Hospital in Manhattan. In January 2005, the Office of Professional Medical Conduct (hereinafter OPMC) charged petitioner with various specifications of misconduct in violation of Education Law § 6530, including practicing medicine with negligence on more than one occasion, practicing with gross negligence on a particular occasion, and failing to maintain accurate records. The charges arose out of the treatment of a single patient (hereinafter referred to as patient A) during his hospitalization at Lincoln Medical and Mental Health Center from September 14, 2001 through October 14, 2001 for an injury to his knee—a fractured right tibial plateau—sustained when he was assaulted with a bat or pipe. Patient A underwent surgery on October 4 and 10, 2001, and he died on October 14, 2001 as a result of end-stage liver disease and an infection of his injured leg. The October 4 surgery, performed by orthopedic surgeon Frank Butera—an employee of petitioner’s company, Signature Health Care—involved an irrigation and debridement of patient A’s lower right extremity. Petitioner concedes that Butera sought advice from him during the surgery but disputes Butera’s claim that petitioner agreed to assume responsibility for the care of patient A. It is undisputed that although subsequent serial debridements should have been done every 36 to 48 hours, none were performed on patient A over the next five days. On October 10, petitioner performed surgery and a debridement on patient A’s lower right extremity, but failed to perform a preoperative examination or note in patient A’s medical records why the examination was not performed. *1097A Hearing Committee of respondent found that petitioner, pursuant to a verbal agreement with Butera, was responsible for patient A’s care from October 6, 2001 until he was transferred to Lincoln Medical’s intensive care unit following the October 10, 2001 surgery. The Hearing Committee sustained one charge of practicing medicine with negligence on more than one occasion, one charge of practicing with gross negligence and one charge of failing to maintain accurate records. The Hearing Committee placed petitioner on a five-year monitored probation. Upon petitioner’s appeal, the Administrative Review Board for Professional Medical Conduct (hereinafter ARB) overturned the finding of gross negligence, modified the sanction imposed on petitioner by reducing the period of monitored probation from five to three years, and otherwise affirmed the Hearing Committee’s determination. Petitioner then commenced this CPLR article 78 proceeding seeking annulment of the determinations of the Hearing Committee and the ARB. We now confirm. The Hearing Committee’s determination was reviewed by the ARB and, thus, our review is “limited to ascertaining whether [the ARB’s determination] was arbitrary and capricious, affected by error of law or an abuse of discretion” (Matter of Bottros v DeBuono, 256 AD2d 1034, 1035-1036 [1998] [internal quotation marks and citation omitted]; see Matter of Maglione v New York State Dept. of Health, 9 AD3d 522, 524 [2004]). Accordingly, the ARB’s determination must be upheld if it “ ‘has a rational basis supported by fact’ ” (Matter of Maglione v New York State Dept. of Health, supra at 524, quoting Matter of Brown v New York State Dept. of Health, 235 AD2d 957, 958 [1997], lv denied 89 NY2d 814 [1997]). Moreover, in reviewing the ARB’s determination, “we do not resolve credibility issues or weigh the testimony of expert witnesses, for those issues are solely within the province of the administrative factfinder” (Matter of Chua v Chassin, 215 AD2d 953, 955 [1995], lv denied 86 NY2d 708 [1995]; see Matter of Brown v New York State Dept. of Health, supra at 958). In challenging the determination herein, petitioner asserts that the Hearing Committee and the ARB found both petitioner and Butera to be lacking in credibility and based their findings solely on an analysis of the documentary evidence. The Hearing Committee determined, however, that petitioner was responsible for patient A’s care “following . . . the 5th of October,” based, in part, upon Butera’s testimony regarding the 48-hour weekend period of October 6 to 7, 2001. In particular, the Hearing Committee stated that it “found Dr. Butera to be credible when he *1098testified that [petitioner] and the physician assistants would have been responsible for [p]atient A’s care that weekend” and cited, as corroborating evidence, the fact that Butera ceased his practice of countersigning physician’s notes for patient A on October 6. The ARB deferred to the Hearing Committee’s credibility finding in this regard and that determination will not be disturbed by this Court (see e.g. Matter of Maglione v New York State Dept. of Health, supra at 524). Given the resolution of the witness credibility issue herein to determine that petitioner was responsible for patient A’s care after October 5, 2001, it cannot be said that the ARB acted irrationally in determining that petitioner was negligent for failing to perform the indisputably required serial debridements of patient A’s leg. We note that the ARB and Hearing Committee similarly rejected—on credibility grounds—petitioner’s claim that he was unaware prior to October 10, 2001 that he would be performing surgery on patient A that day, giving great significance to the fact that petitioner signed a consent form for the surgery that was dated October 9, 2001. Moreover, both OPMC’s and petitioner’s experts testified that, to meet the minimum standard of care, a physician must evaluate a patient prior to performing surgery and petitioner conceded that he did not examine patient A prior to the October 10 surgery. Under these circumstances, the ARB’s determination that petitioner was guilty of negligence on more than one occasion—i.e., that he “failed to exercise the care that a reasonably prudent physician would exercise under the circumstances” (Matter of Maglione v New York State Dept. of Health, supra at 524 [internal quotation marks and citations omitted])—was not arbitrary and capricious. We further reject petitioner’s challenge to the ARB’s finding that he was guilty of failing to maintain a record for patient A that accurately reflected the care and treatment provided to that patient (see Education Law § 6530 [32]). The ARB’s determination in this regard was supported by the testimony of OPMC’s expert that patient A’s records were inadequate because petitioner failed to document that he did not perform a preoperative examination or explain the extenuating circumstances surrounding that failure. This testimony provides a rational basis for the determination that the medical records at issue “ ‘fail[ed] to convey objectively meaningful medical information concerning the patient treated to other physicians [and, therefore, were] inadequate’ ” (Matter of Youssef v State Bd. for Professional Med. Conduct, 6 AD3d 824, 825 [2004], quoting Matter of Mucciolo v Fernandez, 195 AD2d 623, 625 [1993], lv *1099denied 82 NY2d 661 [1993] [citations omitted]; see Matter of Maglione v New York State Dept. of Health, supra at 525). Finally, petitioner’s argument that he was not provided with adequate notice of this charge is contradicted by the detailed testimony that he provided with respect to the particulars of the conduct of which he was accused. In our view, the charges were “ ‘reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him’ ” (Matter of Steckmeyer v State Bd. for Professional Med. Conduct, 295 AD2d 815, 816 [2002], quoting Matter of Block v Ambach, 73 NY2d 323, 333 [1989]). Petitioner’s remaining arguments are either rendered academic by our decision or, upon review, have been found to be lacking in merit. Peters, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Mugglin, J. Appeal from an order of the County Court of Broome County (Smith, J.), entered September 28, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act. Defendant pleaded guilty to attempted sodomy in the first degree and was thereafter sentenced to a prison term of four years. Prior to his release, the Board of Examiners of Sex Offenders evaluated and presumptively classified him as a risk level II sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C), but recommended an upward departure to risk level III status. Following a hearing on the matter, County Court agreed that an upward modification was warranted and classified defendant as a risk level III sex offender. Defendant now appeals. Defendant asserts that the People did not produce clear and convincing evidence warranting an upward departure from the presumptive level. We disagree. It is now well settled that this standard of proof may be satisfied by facts set forth in a presen*1100tence report (see People v Cruz, 28 AD3d 819, 819 [2006]). Defendant correctly asserts that the aggravating or mitigating factor relied upon must be one which was not otherwise adequately taken into account by the risk assessment guidelines (see id.; People v Joslyn, 27 AD3d 1033, 1033-1034 [2006]; see also People v Mount, 17 AD3d 714, 715 [2005]). Here, the evidence clearly establishes that defendant, on multiple occasions, sexually abused three of his male relatives (ages 11 through 16) over a period of at least two years. The risk assessment instrument, as amplified by the guidelines, permits the assessment of 20 points if the offender engaged in a continuing course of misconduct with at least one victim and the assessment of 20 points if the age of the victim is II through 16. Although the third category on the risk assessment instrument permits the addition of 30 points if there are three or more victims,* neither category 4 nor category 5 includes additional points for the continuing sexual misconduct of multiple victims who are underage. We, therefore, hold that County Court appropriately considered these factors as justifying an upward departure to determine that defendant is a level III risk. Mercure, J.E, Crew III, Spain and Rose, JJ., concur. Ordered that the order is affirmed, without costs. This category does not distinguish between adult and minor victims.

Kane, J. Appeal from a judgment of the Supreme Court (Feldstein, J.), entered January 5, 2006 in St. Lawrence County, which dismissed petitioner’s application, in a proceeding pursuant to CELR article 70, without a hearing. Following his conviction of manslaughter in the first degree, petitioner was sentenced to a prison term of 1272 to 25 years. Released to parole supervision in 2002, in 2004 he was arrested and charged with rape and sodomy. The circumstances resulting *1101in petitioner’s arrest also led to a charge that he violated the condition of his parole prohibiting him from violating any law or threatening the safety of others. Although the criminal charges were ultimately dismissed, following a final revocation hearing an Administrative Law Judge (hereinafter ALJ) found a parole violation and recommended that petitioner be imprisoned until the maximum expiration date of his sentence. When the ALJ’s determination was administratively affirmed, petitioner commenced this habeas corpus proceeding. Supreme Court dismissed his petition and this appeal ensued. We affirm. “The notice of [parole] violation . . . shall state what conditions of parole or conditional release are alleged to have been violated and in what manner” (9 NYCRR 8005.3 [b]). Petitioner contends that the notice of violation insufficiently detailed the behavior alleged to have violated a condition of parole and the alleged behavior was not proven at the hearing. The notice of parole violation, which identified by number the parole condition that petitioner violated and specified conduct by petitioner constituting forcible rape, sufficiently informed him of the criminal conduct underlying his parole violation even though the ALJ ultimately found that he attempted to commit the rape but was unable to consummate it (see Matter of Kirk v Hammock, 119 AD2d 851, 852-853 [1986] [parole violation charge of murder sustained where parolee found to have only committed criminally negligent homicide]). While petitioner’s version of events differed considerably from the complainant’s, credibility determinations are within the province of the ALJ (see Matter of Kovalsky v New York State Div. of Parole, 30 AD3d 679, 680 [2006]). Accepting the ALJ’s credibility findings, the proof was sufficient to establish that petitioner attempted to rape the complainant and thus violated the noticed condition of parole (see Matter of Kirk v Hammock, supra at 853). Dismissal of the criminal charges against petitioner does not preclude revocation of parole for the same conduct (see Matter of Davidson v New York State Div. of Parole, 34 AD3d 998, 999 [2006], lv denied 8 NY3d 803 [2007]). Petitioner’s remaining contentions are unavailing. Crew III, J.E, Peters, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.

Kane, J. Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered March 10, 2006, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree. As a result of her sale of cocaine to an undercover officer in the presence of a confidential informant, a jury convicted defendant of criminal sale of a controlled substance in the third degree. On her appeal, we affirm. We will not address defendant’s arguments that she was denied a fair trial because the prosecutor elicited testimony indicating that defendant was the target of a narcotics investigation or that the undercover officer was shown her picture prior to the sale, as defendant did not preserve these arguments by objecting to this testimony (see People v Woody, 9 AD3d 439, 439 [2004], lv denied 3 NY3d 713 [2004]; People v Knox, 232 AD2d 811, 811 [1996], lv denied 89 NY2d 943 [1997]). During summation, the prosecutor stated that the undercover officer had no motive to lie. Even if that statement was improper, rather than a fair response to the defense’s suggestion that the officer needed to make a drug bust to secure a promotion (see People v Lee, 16 AD3d 704, 705 [2005], lv denied 4 NY3d 887 [2005]; People v Baker, 4 AD3d 606, 608-609 [2004], lv denied 2 NY3d 795 [2004]; People v Greene, 306 AD2d 639, 643 [2003], lv denied 100 NY2d 594 [2003]), reversal is unnecessary because the comment was fleeting, County Court sustained defendant’s objection and instructed the jury to disregard the comment, and defendant did not request any further curative instructions (see People v Robinson, 16 AD3d 768, 770 [2005], lv denied 4 NY3d 856 [2005]). Crew III, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.

Spain, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, Jr., J.), rendered March 24, 2006, convicting defendant upon her plea of guilty of, inter alia, the crime of attempted criminal sale of a controlled substance in the third degree. *1103Pursuant to a negotiated plea agreement, defendant pleaded guilty to criminal sale of a controlled substance in the fifth degree in satisfaction of a three-count indictment, and to attempted criminal sale of a controlled substance in the third degree in satisfaction of a separate superior court information. Defendant also admitted violating a previously imposed condition of probation. She waived her right to appeal in writing and orally during the plea colloquy. As agreed, she was thereafter sentenced as a second felony offender to concurrent prison terms of two years for the criminal sale conviction and four years for the attempted criminal sale conviction, along with periods of postrelease supervision. With regard to the probation violation, her probation was revoked and she was sentenced to time served. This appeal ensued. Defendant, as limited by her brief, challenges only her conviction for attempted criminal sale of a controlled substance in the third degree. Specifically, defendant contends that her plea of guilty to that crime was involuntary. While this claim survives defendant’s appeal waiver (see People v Seaberg, 74 NY2d 1, 10 [1989]), defendant never moved to withdraw the plea or vacate the judgment of conviction and, thus, this contention has not been preserved for our review (see People v Decker, 32 AD3d 1079, 1080 [2006]; People v Sebast, 32 AD3d 615, 615 [2006], lv denied 7 NY3d 870 [2006]). Nevertheless, considering the claim, we find it to be without merit. Review of the plea proceedings demonstrates that defendant was fully apprised of her rights and the consequences of her plea, which she acknowledged she understood and she freely admitted the underlying facts of the crime and pleaded guilty to its commission. Further, there is nothing in the record to support defendant’s conclusory and self-serving assertions, raised now for the first time, that she was discouraged from taking her case to trial and led to believe that she had no alternative but to plead guilty (see People v Missimer, 32 AD3d 1114, 1115 [2006]). Accordingly, we find that defendant’s guilty plea was knowing, intelligent and voluntary (see People v Jones, 30 AD3d 633, 633 [2006], lv denied 7 NY3d 849 [2006]; People v Crannell, 23 AD3d 769, 770 [2005], lv denied 6 NY3d 774 [2006]). Defendant’s challenge to the agreed-upon four-year prison sentence as harsh and excessive is precluded in light of her valid waiver of the right to appeal (see People v Lopez, 6 NY3d 248, 255-256 [2006]; People v Clow, 10 AD3d 803, 804 [2004]). Cardona, EJ., Carpinello, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.

Rose, J. Appeal from a judgment of the County Court of Franklin County (Richards, J,), rendered May 8, 2006, which revoked defendant’s probation and imposed a sentence of imprisonment. On April 25, 2005, having pleaded guilty to a fifth conviction for driving while intoxicated, defendant was sentenced to five years of probation which required that, among other things, he abstain from the use or purchase of alcohol or illegal drugs and that he successfully undergo a substance abuse evaluation.* Defendant thereafter admittedly failed to comply with these terms by testing positive for marihuana and cocaine in December 2005, being observed purchasing alcohol by his probation officer and failing to attend at least three scheduled substance abuse evaluations. Nevertheless, he requested that, rather than impose upon him a period of incarceration, County Court afford him the opportunity to undergo inpatient treatment at Saint Joseph’s Rehabilitation Center (hereinafter St. Joseph’s) in Franklin County. County Court did so, emphasizing that it was adjourning sentencing pending defendant’s successful completion of inpatient and aftercare treatment. After admission to St. Joseph’s on April 12, 2006, defendant, against the recommendation of his treatment provider, departed the facility three days later. As a result, County Court revoked his probation and resentenced him to a prison term of 14 to 42 months. On this appeal, defendant asserts that his placement at a religious-based substance abuse treatment program was a violation of his rights under the Establishment Clause of the 1st Amendment of the US Constitution. We disagree and affirm. Although defendant presently maintains that he was unaware of the allegedly religious nature of the substance abuse program at St. Joseph’s, a review of the record reveals that he specifically asked to undergo treatment there. Indeed, while admitting to violating his probation, he *1105expressed an eagerness to be “evaluated for inpatient at St. Jo[seph]’s ... to end the cycle [of addiction] that he seems to be on” (compare Matter of Griffin v Coughlin, 88 NY2d 674, 686-688 [1996], cert denied 519 US 1054 [1997]). Despite his subsequent dissatisfaction with the treatment practices at St. Joseph’s, we have no difficulty concluding that County Court, having finally exhausted its patience as regard to this defendant, did not abuse its discretion in sentencing him to a term of imprisonment (see People v Bertsch, 31 AD3d 961, 962 [2006]). Mercure, J.P., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is affirmed. The record is unclear as to the actual date that defendant was sentenced to probation. The date relied upon is the one specified on defendant’s declaration of delinquency, but the record also references April 26, 2005 and April 27, 2005.

Kane, J. Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.), rendered February 14, 2002, upon a verdict convicting defendant of the crimes of attempted murder in the second degree and criminal possession of a weapon in the third degree. While the victim was driving defendant home, defendant stabbed her in the chest with a knife without provocation. As a result, a jury convicted him of attempted murder in the second degree and criminal possession of a weapon in the third degree. On his appeal, we affirm. According deference to County Court’s credibility determinations at the suppression hearing, the court did not err in denying defendant’s motion to suppress his written statement (see People v Williams, 25 AD3d 927, 928-929 [2006], lv denied 6 NY3d 840 [2006]; People v Locke, 25 AD3d 877, 878-879 [2006], lv denied 6 NY3d 835 [2006]; People v Burgess, 241 AD2d 765, 767 [1997], lv denied 91 NY2d 870 [1997]). The trial evidence, including the victim’s testimony and defendant’s written confession, was legally sufficient to support the charges. The only real issues at trial were defendant’s intent and whether his conduct was excused by a mental disease or defect. After independently weighing the testimony of defendant’s expert psychologist and the prosecution’s two mental health experts, we cannot say that the verdict was against the weight of the evidence (see People v Collins, 27 AD3d 660, 661 [2006]). Defendant’s assertions of ineffective assistance of counsel and that his sentence is excessive are without merit. Cardona, P.J., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed.

Cardona, P.J. Appeal from a judgment of the County Court of Otsego County (Coccoma, J.), rendered May 19, 2003, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree. Defendant waived indictment by a grand jury and agreed to be prosecuted by a superior court information charging him with criminal sale of a controlled substance in the third degree. Pursuant to a negotiated plea agreement, defendant thereafter pleaded guilty to attempted criminal sale of a controlled substance in the third degree and was sentenced to 3 to 9 years in prison, with a recommendation that he be allowed to participate in a shock incarceration program. He now appeals and we affirm. Initially, defendant contends and the People concede that his waiver of the right to appeal was not knowing, intelligent and voluntary (see People v Lopez, 6 NY3d 248, 256 [2006]). Upon our review of the record, we share that view (see People v Williams, 35 AD3d 971, 973 [2006]). For that reason, we have considered defendant’s further assertion that his sentence was harsh and excessive, yet find it to be unpersuasive. Contrary to defendant’s claim, the agreed-upon sentence was statutorily permissible and, given his criminal background and the nature of his crime, we cannot conclude that County Court abused its discretion or that any extraordinary circumstances are present which would warrant a reduction of the sentence (see People v Wallach, 35 AD3d 913, 914 [2006]; People v Milner, 28 AD3d 873, 874 [2006]). Mercure, Peters and Carpinello, JJ., concur. Ordered that the judgment is affirmed.

Carpinello, J. Appeal from an order of the County Court of Chenango County (Sullivan, J.), entered October 4, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act. In September 2002, defendant pleaded guilty to the crime of sodomy in the second degree in full satisfaction of a three-count *1107indictment and was sentenced to IV2 to 4V2 years in prison. Prior to his release from prison, a risk assessment hearing was conducted at which time County Court considered, among other things, his criminal history, the young age of his victim and evidence of his past alcohol abuse. Defendant was subsequently classified as a risk level III sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C). On this appeal, defendant maintains that he was improperly assessed points under multiple categories on the risk assessment instrument used by County Court to determine his classification. Inasmuch as County Court’s determination is supported by clear and convincing evidence, including the case summary, presentence investigation report and victim impact statement, we disagree and affirm (see People v Dickison, 24 AD3d 980, 981 [2005], lv denied 6 NY3d 709 [2006]). In addition to sexually abusing a nine-year-old child who was asleep at the time of her victimization (see People v Greene, 13 AD3d 991, 992 [2004], lv denied 5 NY3d 789 [2005]), defendant’s criminal past includes a youthful offender adjudication for attempted robbery in the first degree (see People v Dort, 18 AD3d 23, 26 [2005], lv denied 4 NY3d 885 [2005). Furthermore, defendant likewise admitted to a history of alcohol abuse. Accordingly, we cannot say that County Court erred in assessing points under the categories of victim characteristics, drug/alcohol abuse and number and nature of prior crimes. We have considered defendant’s remaining contentions and have determined that they are without merit. Cardona, EJ., Mercure and Peters, JJ., concur. Ordered that the order is affirmed, without costs.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was found guilty of violent conduct and assault following a tier III disciplinary hearing. The determination was affirmed after an administrative appeal and this CPLR article 78 proceeding ensued. We confirm. The misbehavior report, testimony at the hearing and *1108confidential information provide substantial evidence to support the determination of guilt. Petitioner’s objections to the Hearing Officer’s considerations of the confidential information, the attack on the sufficiency of the misbehavior report and his claim that he was denied the right to call certain witnesses are unpersuasive. Although the Hearing Officer did not interview the confidential informant, the record reveals that the investigating correction officer provided ample information enabling the Hearing Officer to independently evaluate the reliability and credibility of the informant’s information (see Matter of Sime v Goord, 30 AD3d 887, 889 [2006], lv denied 7 NY3d 717 [2006]). Contrary to petitioner’s contention that the misbehavior report inadequately described his specific role, the report provided petitioner with the detail necessary to prepare a defense (see Matter of Smith v Portuondo, 309 AD2d 1028 [2003]). Petitioner’s assertion that he was denied the right to call certain witnesses is belied by the record, and his remaining claims are unpreserved for review and, in any event, lacking in merit. Mercure, J.P, Spain, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Mercure, J.E Appeal from a decision and two amended decisions of the Workers’ Compensation Board, filed May 26, 2005, June 29, 2005 and March 9, 2006, which, inter alia, ruled that an employer-employee relationship existed between claimant’s decedent and Liberty Group Publishing, Inc. and awarded claimant workers’ compensation death benefits. Claimant’s son (hereinafter decedent), who delivered newspapers for Liberty Group Publishing, Inc., was killed in a motor vehicle accident in July 2003. The Workers’ Compensation *1109Board thereafter determined that an employment relationship existed between decedent and Liberty, and that decedent’s death arose out of and in the course of his employment. As such, the Board awarded claimant workers’ compensation death benefits. Liberty now appeals and we affirm. Initially, we reject Liberty’s contention that the Board applied the incorrect standard of review. Although the Board suggested in its decision and first amended decision that it used a substantial evidence standard of review, the Board issued a second amended decision clarifying that such standard is to be used only by the courts when reviewing Board decisions. In any event, notwithstanding the Board’s arguably misleading reference to the substantial evidence standard in its first two decisions, we are satisfied that, ultimately, the Board “weighted] the evidence and . . . [gave] effect to its preponderance” (Matter of Brown v Mobil Oil Co., 20 AD2d 833, 833 [1964]). Turning to Liberty’s claim that decedent was merely an independent contractor and not its employee, we note that whether an employer-employee relationship exists is a factual issue left for resolution by the Board and we must uphold its determination in that regard if it is supported by substantial evidence (see Matter of Scimeca v American Overseas Express Intl., Inc., 27 AD3d 981, 982 [2006], lv denied 7 NY3d 707 [2006]; Matter of Wald v Avalon Partners, Inc., 23 AD3d 820, 820 [2005]). Here, there is evidence that Liberty exercised a sufficient degree of direction and control over the timing and method of decedent’s delivery of the newspapers such that the Board’s finding of an employment relationship must stand (see Matter of Paolucci v Capital Newspapers, 229 AD2d 751, 752 [1996]; Matter of Pittman v Poughkeepsie Journal, 140 AD2d 779, 780 [1988]). Finally, we conclude that substantial evidence also supports the Board’s finding that decedent’s death arose out of and in the course of his employment (see Matter of Tompkins v Morgan Stanley Dean Witter, 1 AD3d 695, 696 [2003]; Matter of Egloff v Ob-Gyn Assoc. of N. N.Y., 245 AD2d 965, 966 [1997]). The fatal accident occurred within the time frame that decedent was required to deliver the newspapers and at a location in the area of decedent’s route. In light of the aforementioned evidence and the reasonable inferences that could be drawn therefrom, we will not interfere with the Board’s factual determination, despite the existence of evidence in the record which could arguably support a contrary result (see Matter of Pecora v County of Westchester, 13 AD3d 916, 918 [2004]). Crew III, Spain, Mugglin and Rose, JJ., concur. Ordered that the decision and amended decisions are affirmed, with costs to claimant.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule. Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of cannabinoids. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued. Contrary to petitioner’s claim, the proceeding was properly transferred to this Court as his challenge to the chain of custody of the specimen raises a question of substantial evidence (see Matter of Cooper v Selsky, 20 AD3d 832, 833 [2005]). With regard to this claim, petitioner asserts that the wrong sample was tested inasmuch as the request for urinalysis form indicates that his urine specimen was destroyed on June 10, 2005 while the tests were conducted on June 13, 2005. However, this discrepancy was adequately explained by the testing officer who stated that he mistakenly wrote down June 10, 2005, instead of June 13, 2005, as the date the sample was destroyed (see e.g. Matter of Zippo v Goord, 2 AD3d 1006, 1006 [2003]). This testimony, together with the misbehavior report, positive urinalysis test results and related documentation, provide substantial evidence supporting the determination of guilt (see Matter of Van Dusen v Selsky, 14 AD3d 979 [2005]; Matter of Zippo v Goord, supra at 1006). Petitioner’s remaining contentions, including his claim of hearing officer bias, have been considered and found to be without merit. Crew III, J.P, Peters, Spain, Rose and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Mercure, J.P. Appeals (1) from a judgment of the Supreme Court (Bradley, J.), entered October 31, 2005 in Ulster County, upon a dismissal of the complaint at the close of certain testimony, and (2) from an order of said court, entered October 31, 2005 in Ulster County, which denied plaintiffs motion to set aside the judgment. Plaintiff was the owner of a now-deceased dog. In September 2001, the attending veterinarian at defendant’s emergency clinic, Leslie Nicosia, performed surgery on the dog to correct a twisted stomach. Plaintiff thereafter cared for the dog while he recovered from the surgery and a burn caused by a heating pad in defendant’s clinic until the dog suddenly died in December 2001. A subsequent autopsy revealed that the dog had died of internal bleeding after one or more cancerous nodules on his spleen ruptured. Plaintiff then commenced this action, alleging that defendant and its employees were negligent in treating the dog. Plaintiff sought damages for the dog’s pain and suffering, his actual value and sentimental value, plaintiffs emotional distress, the value of plaintiffs time in caring for him and punitive damages. Following joinder of issue, the parties cross-moved for summary judgment. Supreme Court (McCarthy, J.) denied the motions but limited plaintiffs damages to the amount of the dog’s fair market value (see DeJoy v Niagara Mohawk Power Corp., 13 AD3d 1108, 1109 [2004]; Schrage v Hatzlacha Cab Corp., 13 AD3d 150 [2004]; Lewis v DiDonna, 294 AD2d 799, 801 [2002]; Johnson v Douglas, 289 AD2d 202 [2001]). The action proceeded to a jury trial and, after plaintiff testified, Supreme Court (Bradley, J.) granted her request for a one-day adjournment to produce her expert witness. When the trial recommenced, the court denied plaintiff’s request for an additional two-day adjournment and granted defendant’s motion to dismiss for “failure to prosecute” after the expert witness failed to appear. The court denied plaintiffs subsequent motion to set aside the dismissal of the complaint, noting that without *1112the expert’s testimony, plaintiff failed to establish a prima facie case. Plaintiff appeals, and we now affirm. Initially, we agree with plaintiff that Supreme Court improperly relied upon a rationale of want of prosecution in dismissing the complaint. The statutory authorization for such dismissals is found in CPLR 3216 and 3404, neither of which is applicable here because a note of issue had been filed and the case had not been marked off the calendar (see Chase v Scavuzzo, 87 NY2d 228, 233 [1995]; Chauvin v Keniry, 4 AD3d 700, 701-702 [2004], lv dismissed 2 NY3d 823 [2004]; Lopez v Imperial Delivery Serv., 282 AD2d 190, 193-196 [2001], lv dismissed 96 NY2d 937 [2001]). We reject plaintiffs argument, however, that Supreme Court erred in refusing to grant her second request for an adjournment to produce the expert witness needed to establish a prima facie case of negligence. The determination of whether to grant an adjournment is a matter resting within the sound discretion of the trial court (see CPLR 4402; Brusco v Davis-Klages, 302 AD2d 674, 674 [2003]; Wolosin v Campo, 256 AD2d 332, 333 [1998]). Generally, it “ ‘is an improvident exercise of discretion to deny such a request where the evidence is material, and the application is properly made and is not made for purposes of delay, and where the need for an adjournment does not result from the failure to exercise due diligence’ ” (Brusco v Davis-Klages, supra at 674, quoting Matter of Shepard, 286 AD2d 336, 337 [2001]; see Canty v McLoughlin, 16 AD3d 449, 450 [2005]). Here, it is undisputed that the trial was scheduled five months in advance and that plaintiff was granted a one-day adjournment on September 19, 2005 to produce her expert witness. Nevertheless, she failed to make her expert available on September 20, 2005, despite her assurances to Supreme Court that the witness would testify that day. We note that both before the trial court and on appeal plaintiff has failed to outline the steps she took to secure the expert witness, assert that she had made reasonable efforts to produce the witness, or offer any explanation beyond mere speculation for the witness’s unavailability. Thus, while the expert’s proffered testimony was material and necessary, we cannot say that the court improvidently exercised its discretion in refusing to grant plaintiff a second adjournment and dismissing the complaint for failure to establish a prima facie case (see Paulino v Marchelletta, 216 AD2d 446, 446 [1995]; Terio v Terio, 190 AD2d 665, 665-666 [1993], appeal dismissed 81 NY2d 994 [1993], lv dismissed 82 NY2d 778 [1993], cert denied 511 US 1022 [1994]; Le Jeunne v Baker, 182 AD2d 969, 969-970 [1992]; see also Romero v City of New York, 260 AD2d 461, 462 [1999]; York v York, 250 *1113AD2d 841, 841 [1998]; Goichberg v Sotudeh, 187 AD2d 700, 701-702 [1992]). Plaintiffs remaining arguments have been rendered academic by our determination or, upon consideration, found to be lacking in merit. Crew III, Peters, Spain and Carpinello, JJ, concur. Ordered that the judgment and order are affirmed, with costs.

Mugglin, J. Appeal from a judgment of the Supreme Court (Hoye, J.), entered March 6, 2006 in Schenectady County, which, inter alia, granted petitioners’ application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Schenectady County Civil Service Commission requiring petitioner Suzanne Burns to take a civil service examination to retain her competitive position. Petitioner Suzanne Burns was appointed to the noncompetitive position of full-time salaried computer aide in Schenectady County in 2000. Four years later, the Schenectady County Civil Service Commission determined that Burns’ position should be a competitive position and she would be required to undergo examination in order to continue in the position. In this CPLR article 78 proceeding, Supreme Court determined that petitioners were entitled to summary judgment declaring that Burns was entitled to continue in her position as a computer aide without examination, despite the reclassification of the position to competitive. We disagree with the argument of the Civil Service Commissioners and the Chair of the Civil Service Commission (hereinafter collectively referred to as respondents) that Supreme Court incorrectly determined that Burns could continue in her position without examination. Civil service employees, in the *1114noncompetitive class, whose positions are subsequently reclassified into the competitive class may continue in their positions without examination (see Matter of Bell v County of Warren, 111 AD2d 428, 429 [1985]). Here, the record establishes that despite reclassification, Burns’ job and responsibilities remained unchanged during her four years in the position. We reject respondents’ contention that Burns was not permanently appointed to the position of computer aide in 2000. The employment records confirmed Burns’ permanent appointment in November 2000 and those records were not altered until July 2004, changing Burns’ appointment from permanent to temporary for the 2001-2002 calendar years. Thus, we conclude that Supreme Court correctly determined that Burns was entitled to maintain her employment without successfully completing a required civil service examination, even though the position has been reclassified as competitive. Cardona, EJ., Mercure, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.

Mugglin, J. Appeal from an order of the Supreme Court (Dawson, J.), entered March 16, 2006 in Clinton County, which denied plaintiffs motion for summary judgment. This is the second of two related actions. Flaintiff issued a policy of title insurance for Wolodymyr Bula and Leanne Bula insuring the title to certain land in the Town of Beekmantown, Clinton County, when they purchased the property from defendant. The conveyance included a right-of-way to Lake Champlain, purportedly 66 feet in width. In reality, the right-of-way was only 15 feet in width. The Bulas obtained an appraisal establishing resultant damages of $26,800. Flaintiff paid the *1115Bulas $20,000 and apparently assigned its subrogation rights to the Bulas. The Bulas, in the first action against defendant, moved for summary judgment. In her affidavit in opposition, defendant, after acknowledging that “mistakes were made” and that plaintiff “did in fact pay out $20,000.00” and “did in fact assign to the [Bulas] their right of subrogation,” stated that “[i]t is quite frankly the issue of damages due to the [Bulas], if any, that is the sole issue to be addressed by the [c]ourt.” As defendant submitted no proof on the issue of damages, Supreme Court, after observing that defendant “and the court agree that the title insurer could have recovered for its out-of-pocket expense ($20,000)” but that plaintiff may not “assign its subrogated rights to the insureds for no value or nominal value,” it limited the Bulas’ judgment to $6,800. Thereafter, the Bulas moved to amend the complaint to add plaintiff as a party in that action. Supreme Court denied that motion. No appeal was taken from either the judgment or the order denying the motion. Predictably, plaintiff commenced this action against defendant. Defendant answered and asserted a third-party claim against her attorney, which is not here in issue. Plaintiff moved for summary judgment submitting, in addition to copies of Supreme Court’s two decisions and defendant’s aforesaid affidavit, evidence that the Bulas received a partially failed title, the Bulas were damaged in the amount of $26,800, it paid the Bulas $20,000, and, pursuant to the title insurance policy, it became subrogated to the Bulas’ right to receive that amount. Having thus demonstrated prima facie entitlement to summary judgment, the burden shifted to defendant to produce evidence in admissible form demonstrating the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Spiratos v County of Chenango, 28 AD3d 863, 863 [2006]; Macri v Smith, 12 AD3d 896, 897 [2004]). Defendant’s counsel, having pleaded plaintiff’s lack of standing as an affirmative defense, reminded Supreme Court during oral argument that plaintiff had assigned its rights to the Bulas. When the court inquired about a possible reassignment, plaintiff’s attorney demurred and the court denied its motion for summary judgment. We reverse. While Supreme Court could take judicial notice of the existence of the first action over which it presided (see Prince, Richardson on Evidence § 2-209, at 45 [Farrell 11th ed]), it should take such notice of the entire action and not confine itself to only one aspect thereof, i.e., the existence of an assignment. Unfortunately, plaintiffs counsel did not remind *1116the court that it decided that the assignment was invalid and awarded the Bulas only $6,800, based on defendant’s successful argument that its enforcement would unjustly enrich the Bulas by adding a judgment against her of $26,800 to the $20,000 that the Bulas already received from plaintiff. As a party to the first action who benefitted from the court’s decision that the assignment was invalid, defendant is precluded from again litigating this issue (see e.g. McWain v Pronto, 30 AD3d 675, 676 [2006]), particularly where, as here, she is judicially estopped from taking the inconsistent position that the assignment was valid and, because of it, plaintiff lacks standing to sue (see Matter of Sbarra, 17 AD3d 975, 976 [2005]; Clifton Country Rd. Assoc. v Vinciguerra, 252 AD2d 792, 793 [1998]). We find no merit to defendant’s additional arguments and no prejudice to her if she is made to pay 100% of the damages occasioned by her conveyance of a defective title. Peters, J.P, Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is reversed, on the law, with costs, motion granted and summary judgment awarded to plaintiff in the amount of $20,000.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 24, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause. Claimant worked as resident supervisor at a halfway house for approximately 16 months. As part of her regular work schedule, she was required to work on Sundays from 8:00 a.m. to 4:00 p.m. She thereafter became an active member in her church and, as a result, asked her employer for a schedule change that would eliminate her having to work on Sundays. When the employer failed to accommodate her request, claimant stopped working. The Unemployment Insurance Appeal Board ruled that she was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause. Claimant now appeals. We affirm. “It is well settled that dissatisfaction with one’s work schedule does not constitute good cause for leaving one’s employment” (Matter of Kattaya [Commissioner of Labor], 32 *1117AD3d 1124, 1125 [2006] [citations omitted]; see Matter of Adorisio [Commissioner of Labor], 18 AD3d 942, 942 [2005]). Here, claimant admitted that when she took the job, she agreed to work on Sundays. She stated, however, that after she became an active member in her church, she expected the employer to accommodate her request for Sundays off. She further indicated that she had no intention of continuing to work for the employer if she had to work on Sundays. In view of the foregoing, substantial evidence supports the Board’s finding that claimant voluntarily left her employment without good cause. Peters, J.P, Spain, Carpinello, Mugglin and Rose, JJ., concur. Ordered that the decision is affirmed, without costs.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 5, 2005, which, inter alia, ruled that claimant was disqualified from receiving unemployment insurance benefits because she refused an offer of suitable employment without good cause. Claimant was employed by a temporary placement agency. After completing a temporary assignment which paid $20 per hour, claimant filed for and received unemployment insurance benefits. An initial determination was made that claimant was disqualified from receiving benefits because she refused an offer of employment without good cause. Claimant was also found liable for a recoverable overpayment of $3,645 and her right to future benefits was reduced by eight effective days. After a hearing, the initial determination was sustained by an Administrative Law Judge and affirmed by the Unemployment Insurance Appeal Board. Claimant appeals. It is well settled that “[a] claimant who refuses to accept a job for which he or she is reasonably suited by training and experience will be disqualified from receiving unemployment insurance benefits” (Matter of Guzenski [Commissioner of Labor], 20 AD3d 801, 802 [2005]; see Labor Law § 593 [2]). Here, the employer’s vice-president testified that on February 25, 2005 he offered claimant a temporary secretarial position at a bank for the same pay she had received at her previous assignment, but that she refused the offer, stating that she was seeking permanent employment. This testimony provides substantial evidence to support the Board’s decision. Any contradictory testimony by claimant presented a credibility issue for the Board to resolve *1118(see Matter of Fair [Commissioner of Labor], 27 AD3d 841, 842 [2006]). Further, given that claimant failed to report the refusal of employment and continued to certify her benefits despite her receipt of an employee handbook which informed her of the consequences of such actions, claimant was properly charged with a recoverable overpayment of benefits (see id.; Matter of De Marco [Commissioner of Labor], 9 AD3d 732 [2004]). Finally, claimant argues that the actions of the Administrative Law Judge served to prevent her from presenting her case. Claimant was advised of her rights and the procedures to be followed during the hearing, and was given the opportunity to present evidence, object to exhibits and cross-examine witnesses. Accordingly, we find no support for claimant’s contentions (see Matter of Grogan [Royal Temporaries, Inc./Stafkings—Commissioner of Labor], 19 AD3d 972, 973 [2005]; Matter of Boudreau [Commissioner of Labor], 253 AD2d 939 [1998]). Cardona, EJ., Crew III, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

Crew III, J.E Appeal from an order of the Supreme Court (McNamara, J.), entered June 6, 2006 in Albany County, which, inter alia, granted defendants’ motion to dismiss the complaint. Elaintiff, a physician who is the subject of an ongoing investigation by defendant Office of Frofessional Medical Conduct (hereinafter OFMC), commenced this action against OFMC and defendants Department of Health, Commissioner of Health and Kendrick Sears, seeking $12 million in damages for defendants’ alleged harassment during the course of the investigation.* Shortly thereafter, plaintiff unsuccessfully moved *1119for a preliminary injunction seeking to prevent OPMC from undertaking a comprehensive review of his patient and office records. Defendants, in turn, filed a preanswer motion to dismiss contending, among other things, that Supreme Court lacked subject matter jurisdiction, that defendants were immune from suit and that the underlying complaint failed to state a cause of action. In response, plaintiff cross-moved for reconsideration with regard to the requested preliminary injunction. Supreme Court granted defendants’ motion to dismiss, finding that it lacked subject matter jurisdiction over the named state agencies and that the complaint failed to state a cause of action as against the individual defendants. Plaintiffs cross motion for reconsideration was denied as moot, and this appeal by plaintiff ensued. We affirm. As Supreme Court correctly noted, the Court of Claims has exclusive jurisdiction over actions for money damages against the state (see NY Const, art VI, § 9; Court of Claims Act § 8; Morell v Balasubramanian, 70 NY2d 297, 300 [1987]). The Department of Health and OPMC both are state agencies and, as such, the state is the real party in interest (see Morell v Balasubramanian, supra at 300; Woodward v State of New York, 23 AD3d 852, 855-856 [2005], lv dismissed 6 NY3d 807 [2006]; Olsen v New York State Dept. of Envtl. Conservation, 307 AD2d 595, 596 [2003], lv denied 1 NY3d 502 [2003]). Accordingly, plaintiffs claim for money damages against such entities should have been brought in the Court of Claims in the first instance. As to the individual defendants, there is no allegation that the Commissioner of Health harmed plaintiff in any fashion and, with respect to Sears’ directive that plaintiff undergo a psychiatric evaluation, such conduct was undertaken in Sears’ official capacity, again necessitating that this action be brought in the Court of Claims (see Olsen v New York State Dept. of Envtl. Conservation, supra at 596-597). Moreover, even setting aside the issue of the proper forum for this action, the harassment alleged stems from an official OPMC investigation. Where, as here, the decision to undertake disciplinary action involves the exercise of discretion of a judicial or quasi-judicial nature, the challenged actors, i.e., Sears and the named state agencies, are immune from suit (see Arteaga v State of New York, 72 NY2d 212, 216 [1988]). Finally, “New York does not recognize a common-law cause of action to recover damages for harassment” (Daulat v Helms Bros., Inc., 18 AD3d 802, 803 [2005]; see Jacobs v 200 E. 36th Owners Corp., *1120281 AD2d 281 [2001]; Board of Mgrs. of Exec. Plaza Condominium v Jones, 251 AD2d 89, 90 [1998], lv dismissed 92 NY2d 1002 [1998]; General Motors Acceptance Corp. v Desbiens, 213 AD2d 886, 888 [1995]). Accordingly, Supreme Court quite properly granted defendants’ motion to dismiss. Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, without costs. Plaintiff also initially named the state and former Governor George Pataki as party defendants, but it appears the action subsequently was discontinued as to those parties. Additionally, although plaintiff names Sears as OPMC’s *1119chair, respondents advise us that Sears actually is the chair of the State Board for Professional Medical Conduct.

Crew III, J.P. Appeal from an order and judgment of the Supreme Court (Ceresia, Jr., J.), entered January 27, 2006 in Rensselaer County, which, inter alia, denied plaintiffs motion for summary judgment. Defendant Thomas L. Scott (hereinafter defendant) is the recipient of certain payments under a structured settlement agreement created by court order in 1982. In order to effectuate payment of such settlement, an annuity contract was purchased from defendant INA Life Insurance Company of New York, now known as Cigna Life Insurance Company of New York (hereinafter Cigna). In September 1999, defendant entered into an agreement with Merrick Bank Corporation, whereby defendant borrowed $49,750 from Merrick, together with interest thereon, agreeing that such loan would be repaid from two lump-sum payments due under his structured settlement—specifically, $30,000 due on April 14, 2001 and $50,000 due on April 14, 2004. Merrick, in turn, assigned its interest in the loan agreement to plaintiff.1 Although not entirely clear from the record, it appears that the first scheduled payment of $30,000 was made to plaintiff. When the second payment was not forthcoming, plaintiff commenced this action against defendant and Cigna setting forth causes of action sounding in breach of contract, conversion and unjust enrichment and seeking certain declaratory and injunctive relief. Cigna answered but defendant failed to answer or otherwise appear. Plaintiff thereafter moved for a default judgment against defendant and for summary judgment against Cigna with respect to the declaratory and injunctive relief sought. Supreme Court *1121partially granted plaintiffs motion for a default judgment, finding that plaintiff was entitled to an award based upon unjust enrichment, but denied the balance of the relief sought against defendant and Cigna, holding that the loan agreement between plaintiff and defendant was unenforceable and, therefore, the causes of action based upon such agreement must fail. This appeal by plaintiff ensued.2 We affirm. The crux of plaintiffs argument on appeal is that there is nothing in the structured settlement agreement that precludes defendant from assigning his right to receive such payments to plaintiff and, therefore, Supreme Court erred in concluding that the underlying loan agreement was unenforceable. Specifically, plaintiff contends that “[t]here simply is no language in any document in record for the original structured settlement that contains any non-assignment language.” As Supreme Court aptly observed, however, neither the original settlement order, the underlying settlement agreement nor the original annuity contract are contained in the record on appeal, thereby rendering plaintiffs assertions on this point somewhat disingenuous.3 Indeed, the only document that sheds any appreciable light upon whether defendant’s annuity payments were assignable is a change of address form completed by defendant in October 1999, wherein defendant acknowledges that “under the terms of this settlement annuity contract, I do not have any rights to accelerate, assign or transfer my interest in any such payments.” Given plaintiffs burden on the respective motions, and in light of the fact that it did not tender sufficient documentary evidence to conclusively resolve the disputed issue in its favor, we cannot say that Supreme Court erred in concluding that plaintiff lacked a valid and enforceable contract with defendant and, hence, in denying relief as to those causes of action based upon the asserted contract. To the extent that plaintiff now argues that defendant waived the protection of any nonassignment language that may have existed in the structured settlement agreement, we need note only that plaintiff failed to raise this argument before Supreme Court (see Dinneny v Allstate Ins. Co., 295 AD2d 797, 799 [2002]). Plaintiffs remaining contentions have been examined and found to be lacking in merit. *1122Peters, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order and judgment is affirmed, without costs. . We note in passing that such assignments now are heavily scrutinized under the Structured Settlement Protection Act (General Obligations Law, art 5, tit 17; see Singer Asset Fin. Co., LLC v Melvin, 33 AD3d 355 [1st Dept 2006]). . This Court granted a stay prohibiting Cigna from making payments to defendant during the pendency of this appeal. Cigna has advised this Court that it is taking no position on plaintiffs appeal, and defendant has failed to file a brief. . Although plaintiff did tender an order dated September 7, 1982 approving the settlement, that order makes specific reference to a prior order dated August 18, 1982, which approved the compromise and final settlement in the underlying action.

Mugglin, J. Appeal from a judgment of the Supreme Court (Connor, J.), entered December 29, 2005 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to compel respondent to accept petitiorier’s withdrawal of his letter of resignation. Petitioner, a construction equipment operator, had been placed on disciplinary probation by respondent for violations of its policy against violence in the workplace. To avoid immediate termination for violating his disciplinary probation, petitioner submitted a written resignation to be effective January 31, 2005. Although the resignation had been accepted by the director of personnel on February 2, 2005, petitioner, on February 10, 2005, sought to withdraw his resignation. When the director of personnel refused to allow withdrawal, petitioner commenced this CPLR article 78 proceeding challenging the refusal as arbitrary and capricious. Supreme Court dismissed the petition, concluding that the refusal to allow withdrawal of the termination was neither arbitrary nor capricious. Petitioner appeals and we affirm. Petitioner’s resignation was properly accepted by respondent’s director of personnel. Public Authorities Law § 352 (3) provides that respondent “may delegate to one or more of its members or its officers, agents and employees such powers and duties as it may deem proper.” Here, respondent’s bylaws authorize respondent’s chair to delegate the power to appoint and remove employees. In September 2002, respondent’s chair delegated the power to appoint and effect probationary terminations to department heads and division directors within their respective areas of employment. Acceptance of a resignation in lieu of disciplinary removal is a logical extension of that delegated authority. Although, as petitioner points out, the bylaws contained in the record were not in effect at the time of the delegation, the ap*1123propriate bylaws have been submitted by respondent to the court and may properly be considered, even though dehors the record (see Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]; State of New York v Peerless Ins. Co., 117 AD2d 370, 374 [1986]). Contrary to petitioner’s argument, Matter of Sassone v New York State Thruway Auth. (171 AD2d 308, 310 [1991]) is not authority for the proposition that the power of appointment and termination is a nondelegable duty, as it was unnecessary to reach that issue in deciding that case. Next, we find no merit to petitioner’s argument that the failure of respondent to file its bylaws with the Secretary of State renders them invalid. These bylaws relate only to the organization and internal management of respondent (see NY Const, art IV § 8; Executive Law § 102 [2]; Public Authorities Law § 354 [5]). Lastly, we disagree with petitioner that the refusal to allow him to withdraw his letter of resignation constitutes an abuse of discretion or was an arbitrary and capricious act. Whether to allow the withdrawal of a letter of resignation is a decision to be made by the appointing authority in the exercise of sound discretion (see Matter of Martinez v State Univ. of N.Y., 294 AD2d 650, 650 [2002]). Petitioner admitted violating respondent’s workplace violence policy and violating the one-year disciplinary probation imposed thereon by another act of violence. Under such circumstances, refusal to allow withdrawal of the resignation does not constitute an abuse of discretion nor amount to an arbitrary and capricious act (see Matter of Popp v Town of Cornwall, 244 AD2d 492, 493 [1997]; Matter of Schweit v Abate, 200 AD2d 522, 523 [1994]). Mercure, J.P, Crew III, Spain and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.

Rose, J. Appeal from an order of the Supreme Court (Dawson, J.), entered April 4, 2006 in Clinton County, which denied defendant’s motion for summary judgment dismissing the complaint. *1124After injuring his right shoulder at work, plaintiff consulted an orthopedic specialist who diagnosed a ruptured biceps and recommended immediate surgical repair. His employer’s workers’ compensation carrier disputed the need for surgery and required him to undergo an independent medical examination (hereinafter IME). To that end, plaintiff was examined by defendant, who is also an orthopedic specialist. Based on that examination, defendant reported to the carrier that surgery was not indicated for plaintiff’s condition and, instead, he should pursue physical therapy. Accordingly, the carrier refused to approve surgery and plaintiff engaged in physical therapy, but it proved ineffective. Plaintiff ultimately underwent surgery on his shoulder, but this also proved ineffective, allegedly because of the lapse of time following the injury. Plaintiff then commenced this medical malpractice action, alleging that defendant had advised him during the IME that surgery was not indicated for his condition and physical therapy would be the appropriate treatment. He further alleged that he relied upon this advice, it was incorrect and the resulting delay in having surgery caused him to suffer an 80% loss of use of his shoulder. Defendant moved for summary judgment dismissing the complaint, Supreme Court denied the motion and we now affirm. While an IME performed at the request of a third party does not ordinarily give rise to an actionable physician-patient relationship (see Savarese v Allstate Ins. Co., 287 AD2d 492, 493 [2001]; Lee v City of New York, 162 AD2d 34, 36 [1990], lv denied 78 NY2d 863 [1991]), such a relationship may be implied where the IME physician affirmatively advises the patient (see White v Southside Hosp., 281 AD2d 474, 475 [2001]; Heller v Peekskill Community Hosp., 198 AD2d 265, 266 [1993]; Hickey v Travelers Ins. Co., 158 AD2d 112, 115-116 [1990]). Recognizing that the question of whether the advice given is sufficient to create an implied physician-patient relationship is generally for the finder of fact (see Campbell v Haber, 274 AD2d 946, 947 [2000]; Cogswell v Chapman, 249 AD2d 865, 866 [1998]) and viewing the evidence most favorably to plaintiff as the nonmoving party (see Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [2005]; Macri v Smith, 12 AD3d 896, 897 [2004]), we agree with Supreme Court that plaintiff presented evidentiary facts tending to show that defendant affirmatively advised him as to the inappropriateness of surgery and recommended physical therapy as an alternate course of treatment (see Hickey v Travelers Ins. Co., supra at 116). Similarly, the remaining issues of whether defendant’s advice was negligent and plaintiff’s reliance was foreseeable and detrimental also present questions of fact which should be resolved by a jury. *1125Mercure, J.E, Crew III, Spain and Mugglin, JJ., concur. Ordered that the order is affirmed, with costs.

Mercure, J.E Appeal from a decision of the Workers’ Compensation Board, filed January 11, 2006, which ruled that claimant’s injury arose out of and in the course of his employment and awarded claimant workers’ compensation benefits. Claimant was injured while playing softball at a company picnic organized by the employer. He filed a claim for workers’ compensation benefits and the employer’s workers’ compensation carrier controverted coverage. After a hearing, claimant was found to have suffered a work-related injury. The carrier and employer sought review. The Workers’ Compensation Board ultimately affirmed, and the employer and carrier appeal. Workers’ Compensation Law § 10 (1) sets forth three conditions under which workers’ compensation benefits may be awarded for injuries incurred during voluntary participation in an off-duty athletic activity that is not a part of the employee’s work-related duties. Specifically, an award is foreclosed under section 10 unless “the employer (1) required the employee to participate in the activity, (2) paid the worker to do so, or (3) sponsored the activity” (Matter of Dorosz v Green & Seifter, 92 NY2d 672, 676 [1999]). This case involves the condition applicable when the employer sponsors the activity, which is established by evidence of “some type of affirmative act or overt encouragement by the employer” (Matter of Kobre v Camp Mogen Avraham, 255 AD2d 636, 637 [1998]; see Matter of Dorosz v Green & Seifter, supra at 676; Matter of Koch v Rockland County Sheriff’s Dept., 289 AD2d 865, 866 [2001], lv denied 98 NY2d 601 [2002]; Matter of Baker v Sentry Group, 269 AD2d 668 [2000]). Such a determination is a factual issue for the Board which will be upheld if supported by substantial evidence (see Matter of Eddy v Rochester-Genesee Regional Transp. Auth., 248 AD2d 769, 770 [1998]). Here, the record demonstrates that the employer disseminated notice of and organized both the picnic and the softball game, paid for use of the picnic site, and provided food. Further, notice of the picnic asked employees to *1126“bring a glove” for the softball game, and the employer paid for rental of the balls, bats and bases. Given these facts, we conclude that there is substantial evidence in the record to support the Board’s finding that the employer sponsored the off-duty athletic activity that caused claimant’s injury such that the injury arose out of and in the course of his employment. Peters, Mugglin and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

Spain, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner’s applications for accidental and performance of duty disability retirement benefits. Petitioner, a police officer, sustained injuries to his head, neck and back as the result of an on-duty motor vehicle collision in 1995 wherein his patrol car was struck by a vehicle which had been the subject of a high-speed chase. His ensuing applications for accidental and performance of duty disability retirement benefits were disapproved, prompting him to request a hearing and redetermination. The Hearing Officer thereafter denied his applications on the basis that he had not established that he was permanently incapacitated from performing his job duties. Respondent adopted the Hearing Officer’s findings and conclusions. Petitioner then commenced this CPLR article 78 proceeding. Petitioner claims that respondent erred in determining that he failed to establish that he was permanently incapacitated from performing his duties as a police officer. We cannot agree. Respondent possesses the authority to resolve conflicting medical evidence and to credit the opinion of one expert over that of another, so long as the credited expert articulates a rational and fact-based opinion premised upon a physical examination and consideration of the relevant medical records (see Matter of *1127Freund v Hevesi, 34 AD3d 950, 950 [2006]; Matter of Mylchreest v Hevesi, 32 AD3d 648, 649 [2006]; Matter of Kosilla v Hevesi, 25 AD3d 870, 871 [2006]). Here, notwithstanding contrary medical evidence from petitioner’s treating doctors, John Mazella, a board-certified orthopedic surgeon who examined petitioner and reviewed his medical history and tests at the request of the New York State and Local Retirement System, opined that petitioner was not permanently incapacitated from performing his employment duties. Mazella examined petitioner’s cervical, thoracic and lumbar spine and—as to all—found normal ranges of motion with no spasm or tenderness. With regard to petitioner’s upper extremities, Mazella found that petitioner had full strength, symmetric reflexes and no loss of sensation. As for petitioner’s lower extremities, Mazella determined that he had full strength, symmetric and functional reflexes and no sensory deficit. In view of the foregoing, we find that substantial evidence in the record supports respondent’s determination denying petitioner’s applications for accidental and performance of duty disability retirement benefits (see Matter of Freund v Hevesi, supra at 951; Matter of Mylchreest v Hevesi, supra at 650; Matter of Riguzzi v Hevesi, 16 AD3d 822, 823 [2005]; Matter of Liber v McCall, 6 AD3d 950, 951 [2004]). Petitioner’s remaining contentions have been considered and are without merit. Cardona, EJ., Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Peters, J. Appeal from an order of the County Court of Chemung County (Buckley, J.), entered July 28, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act. In October 1979, defendant entered the victim’s home, held her down on her bed and forcibly raped her. Following a jury trial, defendant was convicted of rape in the first degree and *1128burglary in the second degree* and sentenced to concurrent prison terms of SVs to 25 years for the rape conviction and 5 to 15 years for the burglary conviction. He was released to parole supervision but later reincarcerated as the consequence of unrelated felony forgery convictions. The Board of Examiners of Sex Offenders presumptively classified defendant as a risk level III sex offender in accordance with the Sex Offender Registration Act (see Correction Law art 6-C). Following a redetermination hearing, County Court agreed with that risk assessment and classified defendant as a risk level III sex offender. Defendant now appeals and we affirm. Initially, we reject defendant’s assertion that his designation as a risk level III sex offender was not supported by the requisite clear and convincing evidence. The hearing evidence submitted by the People and relied upon by County Court, including the transcript of the victim’s grand jury testimony, the victim’s sworn statement to the police, the transcript of the sentencing minutes and defendant’s criminal history, constituted reliable hearsay (see Correction Law § 168-k [2]; People v Stafford, 32 AD3d 1133, 1134 [2006]; People v Scott, 29 AD3d 1025, 1027 [2006]) and was therefore sufficient to support the determination. We find similarly unavailing defendant’s claim that County Court improperly determined that he and the victim were strangers and, thus, erred in assigning 20 points to his risk assessment score under the category of relationship with the victim. The hearing evidence supported County Court’s conclusion that defendant and the victim were strangers for the purpose of the risk assessment instrument. Finally, we are unpersuaded by defendant’s contention that he was entitled to a downward departure from the risk level III classification. A departure from the presumptive risk level is allowable only where there are aggravating or mitigating circumstances which were not otherwise adequately taken into account by the risk assessment guidelines (see People v Joslyn, 27 AD3d 1033, 1033-1034 [2006]; People v Mothersell, 26 AD3d 620, 621 [2006]). In that regard, the decision as to whether to grant a downward modification is left to the sound discretion of the classifying court (see People v Mothersell, supra at 621). Upon our review of the record, we cannot conclude that County Court improvidently exercised its discretion in determining that there were no circumstances present justifying a downward departure. *1129Cardona, EJ., Spain, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed, without costs. The jury also found defendant guilty of sodomy in the first degree, but that conviction was ultimately reversed on appeal (People v Kaminski, 58 NY2d 886 [1983]).

Lahtinen, J. Appeal from an order of the County Court of Broome County (Mathews, J.), entered October 31, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act. Defendant pleaded guilty in 1993 to sexual abuse in the first degree in satisfaction of an indictment which also charged sodomy in the first degree and endangering the welfare of a child. He was sentenced to three years in prison and three years of postrelease supervision to be served concurrent to a term of 188 months in federal prison for his conviction of possession of child pornography. In April 2005, the Board of Examiners of Sex Offenders presumptively classified defendant as a risk level II sex offender (105 points, the highest number in level II) in accordance with the Sex Offender Registration Act (see Correction Law art 6-C). The Board, however, recommended an upward departure to level III. Following a hearing, County Court confirmed and adopted the Board’s case summary and risk assessment instrument and then concluded that aggravating factors existed warranting an upward departure to risk level III. Defendant appeals claiming that he was improperly assessed points for multiple categories on the risk assessment instrument and an upward departure was not appropriate because the risk assessment instrument adequately addressed all of the aggravating circumstances. Defendant initially claims that only 10 points should have been assessed for sexual contact with the victim as he pleaded guilty to sexual abuse in the first degree for touching the six-year-old victim under her clothing. He further claims that there should have been no assessment for the categories relating to *1130acceptance of responsibility and conduct while confined. It is the People’s burden to establish the proper risk level classification by clear and convincing evidence (see People v Dickison, 24 AD3d 980, 981 [2005], lv denied 6 NY3d 709 [2006]; People v Arotin, 19 AD3d 845, 847 [2005]), and County Court, in arriving at its risk level determination, is permitted to consider reliable hearsay evidence (see Correction Law § 168-n [3]; People v Scott, 29 AD3d 1025, 1026 [2006]; People v Ashley, 19 AD3d 882, 883 [2005] ). “Notably, the Board is not limited to the crime of conviction” in completing the risk assessment instrument, as long as reliable sources are used (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 5 [Nov 1997]). Here, the presentence investigation report and case summary provided the requisite clear and convincing evidence to not only support the assessment of 25 points for sexual contact with the victim, but also the point assessments for the other challenged categories. As noted in these documents and his testimony at the hearing, defendant minimized the nature of his contact with the victim (see People v Scott, supra at 1026) and transferred blame for his actions both with respect to his crime and his conduct in prison. As for defendant’s contention with respect to his upward departure to a risk level III classification, it is well established that a departure from the presumptive risk level is warranted where “there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov 1997]; accord People v Joslyn, 27 AD3d 1033, 1034 [2006]), and the court’s determination in this regard must be supported by clear and convincing evidence (see People v Cruz, 28 AD3d 819, 819 [2006] ; People v Kwiatkowski, 24 AD3d 878, 879 [2005]). Exhibits at the hearing included, among others, pornography stories involving young girls downloaded to defendant’s computer and nude pictures of the victim which he denied taking. The case, summary, which was amply supported by the record, noted that defendant’s “sexual offending against prepubescent females has escalated.” Defendant testified that he does not think he has a problem abusing children. However, County Court concluded that he is likely to reoffend when released from prison. We find sufficient evidence to justify the upward departure to a risk level III. Mercure, J.E, Spain, Carpinello and Rose, JJ., concur. Ordered that the order is affirmed, without costs.

Mugglin, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered February 6, 2006, convicting defendant upon his plea of guilty of the crime of forgery in the second degree. Defendant pleaded guilty to forgery in the second degree with the expectation that he would be sentenced to a prison term of 2 to 4 years. Prior to sentencing, however, he was arrested and charged with assaulting a police officer. County Court, following an inquiry, determined that, inasmuch as there was a legitimate basis for defendant’s arrest, it was not bound by the terms of the negotiated plea agreement and it sentenced defendant to a prison term of 372 to 7 years (see People v Outley, 80 NY2d 702, 712-714 [1993]). On this appeal, defendant asserts that the subsequent dismissal of the assault charge against him requires this Court to remit the matter for a new hearing at which time the agreed-upon 2- to 4-year sentence could be imposed. Inasmuch as the People have informed this Court that defen*1132dant was resentenced on January 4, 2007 to a prison term of 2 to 4 years, “the initial sentence has been superceded and any issue with respect to sentencing on this appeal is now moot” (People v Gannon, 2 AD3d 1214, 1214 [2003]). Mercure, J.E, Peters and Kane, JJ., concur. Ordered that the appeal is dismissed, as moot.

Mugglin, J. Appeal from a judgment of the County Court of Otsego County (Burns, J.), rendered August 19, 2005, which revoked defendant’s probation and imposed a sentence of imprisonment. Defendant pleaded guilty to sexual abuse in the first degree and was sentenced to four months of intermittent incarceration and five years of probation. He was subsequently charged with violating the conditions of his probation. Following a hearing, County Court determined that defendant failed to report to his probation officer as directed and failed to notify the officer of his change of address and employment. County Court therefore revoked defendant’s probation and sentenced him to seven years in prison with three years of postrelease supervision. Defendant now appeals and we affirm. We find unavailing defendant’s contention that he established a justifiable excuse for violating the terms of his probation. With the People having demonstrated defendant’s probation violations by a preponderance of the evidence (see CPL 410.70 [3]; People v Soprano, 27 AD3d 964, 965 [2006]), the burden was on defendant to set forth a justifiable excuse for such violations (see People v Costanza, 281 AD2d 120,123 [2001], lv denied 96 NY2d 827 [2001]). Defendant’s testimony attempting to explain and justify the violations was found not credible (see People v Cruz, 35 AD3d 898, 899 [2006], lv denied 8 NY3d 845 [2007]; People v Smith, 301 AD2d 744, 745 [2003]). On this record, we find no abuse of discretion by County Court and affirm the revocation of defendant’s probation (see People v Murray, 12 AD3d 838, 840 [2004], lv denied 4 NY3d 766 [2005]; People v La Shomb, 285 AD2d 837, 838 [2001]). Likewise, we find no merit to defendant’s claim that his sentence was harsh and excessive. Given the severity of the underlying crime and defendant’s proven inability to abide by the conditions of his probation, we discern neither an abuse of discretion on the part of County Court nor the existence of extraordinary circumstances warranting a reduction of the *1133sentence in the interest of justice (see People v Walts, 34 AD3d 1043,1044 [2006], lv denied 8 NY3d 850 [2007]; People v Bertsch, 31 AD3d 961, 961 [2006]). Cardona, RJ., Spain, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed.

Motion by appellant to extend time to perfect appeal, granted, on condition that appellant perfect the appeal and be ready to argue or submit it at the March Term, beginning February 27, 1961. The appeal is ordered on the calendar for said term. Motion by appellant to dispense with the printing of the exhibits granted; the original exhibits are to he submitted to the court on the argument or submission of the appeal. The record and appellant’s brief must be served and filed on or before February 6,1961. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur. *663against petitioner with respect to said charge. Appellants claim jurisdiction over the person of petitioner, by virtue of the service upon him of a Magistrates’ Court summons, and by virtue of petitioner’s appearance in response to the summons. The summons was served by a New York City Sanitation Department employee, one Domroe, who had been appointed a Special Patrolman by the New York City Police Commissioner, pursuant to subdivision c of section 434a-7.0 of the Administrative Code and section 141.1 of the New York City Police Regulations. The summons had been issued in blank by the Magistrates’ Court, and filled in and countersigned by Domroe. On the return of the summons, petitioner objected to the jurisdiction of the court over his person, upon the ground that subdivision c of section 434a-7.0 of the Administrative Code did not authorize the appointment of city employees as special patrolmen, since it was impossible for city employees to comply with prescribed conditions precedent to such appointment; and that Domroe, therefore, was not a legally appointed special patrolman and was not authorized to fill in, countersign, or serve the summons. Order reversed, on the law, with costs, and petition dismissed. No findings or questions of fact have been considered. Prohibition is not available to a petitioner whose rights can be adequately protected on appeal (Matter of Brandenburg v. Court of General Sessions, 189 Misc. 4, affd. 272 App. Div. 1013; Matter of Harris Motors v. Klapp, 296 N. Y. 242). The issue of the Magistrates’ Courts’ jurisdiction over the person of petitioner should be decided, in the first instance, in the Magistrates’ Court. (People ex rel. N. Y. Disposal Corp. v. Freschi, 173 App. Div. 189.) Absent unusual circumstances, not here present, prohibition may not be granted merely because the jurisdictional question may not otherwise be reviewed until after a conviction (Matter of Clouse, 121 N. Y. S. 2d 136; Reed v. Littleton, 275 N. Y. 150). The Magistrates’ Court should not have been prohibited from determining “ whether a summons has properly been served so as to confer jurisdiction ” because “ the ordinary process of appeal from any judgment rendered might have secured full relief from any error” (People ex rel. Ballin v. Smith, 184 N. Y. 96, 99, 100). We decide no other question. Beldock, Acting P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur. [24 Misc 2d 864.]

Kane, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered March 8, 2004, upon a verdict convicting defendant of the crimes of rape in the second degree, unlawfully dealing with a child in the first degree and endangering the welfare of a child. Defendant was charged with several crimes in connection with an incident where he smoked marihuana with a 14-year-old girl, then had a sexual encounter with her. He appeals from his conviction of rape in the second degree, unlawfully dealing with a child in the first degree and endangering the welfare of a child. We affirm. Although a different verdict would not have been unreasonable, upon our independent review of the evidence, giving deference to the jury’s personal observation of witnesses, we determine that the verdict was not against the weight of the evidence (see People v Tirado, 19 AD3d 712, 713-714 [2005], lv denied 5 NY3d 810 [2005]). In his taped statement to police, defendant admitted that he was 31 years old, the victim was in his apartment, he provided her with marihuana and he had sexual contact with her, but he denied penetration. The victim testified that penetration occurred. Scientific evidence revealed that defendant’s sperm was located on the victim’s sanitary napkin. It was not unreasonable for the jury to accept the victim’s version of events, including that penetration occurred (see People v Kittles, 23 AD3d 775, 776 [2005], lv denied 6 NY3d 755 [2005]; People v Bush, 14 AD3d 804, 804-805 [2005], lv denied 4 NY3d 852 [2005]). The prosecutor’s summation did not deprive defendant of a fair trial. The prosecutor did not bolster a witness’s testimony, and what defendant refers to as a mischaracterization of testimony was little more than the prosecutor’s interpretation. *1134In any event, County Court sustained defendant’s objection and instructed the jury that summations were merely the attorneys’ arguments, and that the jury should rely on its own recollection of the testimony. While the comment that there was no explanation to support one of defendant’s arguments appeared to shift the burden of proof (see People v Allen, 13 AD3d 892, 898 [2004], lv denied 4 NY3d 883 [2005]), the court sustained an objection before the prosecutor even finished her sentence. Under the circumstances, the minor inappropriate comments here were not flagrant or pervasive and did not impede defendant’s right to a fair trial (see People v Kirker, 21 AD3d 588, 589-590 [2005], lv denied 5 NY3d 853 [2005]; People v Wilt, 18 AD3d 971, 972 [2005], lv denied 5 NY3d 771 [2005]). Finally, County Court did not abuse its discretion in imposing the maximum sentence on the rape charge (see People v Bush, supra at 805). Crew III, J.E, Peters, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.

Spain, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered November 16, 2005, upon a verdict convicting defendant of the crime of burglary in the third degree. *1135On February 27, 2005, defendant went to a laundromat in the City of Albany and used the machines. The owner’s nephew, who was working there alone, collected and counted the coins from the machines and placed them in a bag in a private storage room. He then began mopping the floors but forgot to lock the storage room door. While his back was turned, defendant— apparently the only customer on the premises at the time— opened the door to the storage room, entered it and then quickly exited, closing the door behind him and leaving the laundromat with something draped over his arm. The store’s surveillance camera recorded the incident on the hard drive of the owner’s computer, although the view of what defendant held in his hands was obstructed. Upon returning to the storage room, the employee discovered that the bag containing in excess of $300 in quarters had vanished. The portion of the recording which captured this incident was copied onto a DVD and turned over to police, and it was played at defendant’s trial. Approximately two weeks after the incident, defendant was arrested when he returned to the laundromat around closing time. Following a jury trial, defendant was convicted of burglary in the third degree, but acquitted of petit larceny. Sentenced as a second felony offender to a prison term of 3V4 to 6V2 years, defendant now appeals. Defendant primarily challenges the verdict as unsupported by legally sufficient evidence, a claim we find to be without merit (see People v Bleakley, 69 NY2d 490, 495 [1987]). Viewed in a light most favorable to the People (see People v Calabria, 3 NY3d 80, 81 [2004]), the trial evidence, including the surveillance video, established that although the laundromat was open to the public, defendant knowingly and unlawfully entered the private storage room, which was not open to the public, with intent to commit a crime therein (see Penal Law § 140.20; People v Terry, 2 AD3d 977, 978 [2003], lv denied 2 NY3d 746 [2004]; see also People v Harris, 19 AD3d 171, 172 [2005], lv denied 5 NY3d 789 [2005]; People v Quinones, 18 AD3d 330, 330 [2005], lv denied 5 NY3d 809 [2005]; People v Daniels, 8 AD3d 1022, 1023 [2004], lv denied 3 NY3d 705 [2004]; People v Durecot [Durecout], 224 AD2d 264, 264-265 [1996], lvs denied 88 NY2d 878 [1996]). The testimony also established that while there was no sign on the door to the storage room, it clearly was a private area containing cleaning supplies and an employee restroom which was always kept locked and was not open to the public; the fact that it had been inadvertently “left unlocked does not preclude finding that [the] entry was unlawful” (People v Terry, supra at 978; see People v Harris, supra at 172; People v Daniels, supra at 1023). *1136Indeed, “[a] license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public” (Penal Law § 140.00 [5]; see People v Durecot, supra at 264). The questions of whether the storage room was open to the public and whether defendant knowingly entered a nonpublic area are ordinarily matters to be resolved by the factfinder (see People v Daniels, supra at 1023; People v Ayuso, 204 AD2d 472, 472 [1994], lv denied 83 NY2d 964 [1994]), and we find ample evidence to support the verdict in that regard (see People v Jones, 238 AD2d 130, 130 [1997], lv denied 90 NY2d 895 [1997]). Moreover, defendant’s intent was readily inferable from his recorded furtive conduct and the surrounding circumstances of his entry (see People v Gaines, 74 NY2d 358, 362 n 1 [1989]; People v Barnes, 50 NY2d 375, 381 [1980]; People v Mackey, 49 NY2d 274, 279-280 [1980]; People v Mustafa, 10 AD3d 543, 543-544 [2004], lv denied 3 NY3d 741 [2004]). Next, defendant takes issue with County Court’s denial of his CPL 330.30 (1) motion to set aside the verdict, which was based upon the claim that the People had limited the theory of the burglary prosecution to intent to commit a larceny in the storage room, which they failed to prove. We uphold the court’s ruling, as the motion was based upon several erroneous suppositions. As a threshold matter, the defense never raised these specific claims in its motion to dismiss at the close of proof or otherwise, made no request that the jury be so charged and did not object to the charge as given and, thus, the claims are unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]). As such, they are not of the type that, if raised on appeal, would “require a reversal ... as a matter of law” (CPL 330.30 [1]; see CPL 470.15 [4]). Further, contrary to defendant’s claims, the People were required to prove only defendant’s general intent to commit a crime in the room, having never expressly limited their burglary theory to a particular crime (see People v Lewis, 5 NY3d 546, 552 [2005]; People v Mahboubian, 74 NY2d 174, 193 [1989]; People v Mackey, supra at 278-281; cf. People v Barnes, supra at 379, 379 n 3). “Inclusion of a larceny count in the same indictment did not limit the prosecution’s theory under the burglary count” (People v Gilbo, 28 AD3d 945, 945 [2006], lv denied 7 NY3d 756 [2006] [citation omitted]), “nor is it necessary that the intended crime in fact be committed” (People v Mackey, supra at 279). We also find no error in County Court’s denial of defendant’s *1137request for an evidentiary hearing on his claim that the People’s failure to provide a copy of the complete digitally recorded video of the entire time that he was at the laundromat violated his due process right to exculpatory material under Brady (see Brady v Maryland, 373 US 83 [1963]). The complete digital recording was automatically recorded over on the owner’s hard drive after 30 days, prior to defendant’s request; it was never in the possession or control of the police or prosecutor, who were given a DVD with only the 2/2-minute segment showing defendant entering and exiting the storage room and leaving the building (see People v Santorelli, 95 NY2d 412, 421 [2000]; People v Bowers, 4 AD3d 558, 559-560 [2004], lv denied 2 NY3d 796 [2004]; People v Buanno, 296 AD2d 600, 602 [2002], lv denied 98 NY2d 695 [2002]; cf. CPL 240.20 [1] [h]; [2]; People v Bryce 88 NY2d 124, 128-129 [1996]). Further, defendant’s allegations regarding the exculpatory potential of the remainder of the video were purely speculative and conclusory and did not entitle him to a hearing (see People v Burt, 246 AD2d 919, 923-924 [1998], lv denied 91 NY2d 1005 [1998]). We have examined defendant’s remaining claims, including his request that the sentence should be reduced in the interest of justice, and find they have no merit. Cardona, P.J., Peters, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed.

Peters, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which, inter alia, denied petitioner’s application for performance of duty disability retirement benefits. Petitioner, a police officer for the City of Yonkers in Westchester County, filed an application for performance of duty disability retirement benefits referencing a January 18, 2001 incident. Her application was denied on the basis that she failed to provide the requisite written notice of the alleged incident and her injuries (see Retirement and Social Security Law § 363-c [e] [a]). Pursuant to this CPLR article 78 proceeding seeking to annul that determination, petitioner contends that her failure to comply with the written notice mandate should have been excused for good cause (see Retirement and Social Security Law § 363-c [e] [b] [3]; 2 NYCRR 331.2 [b]). We disagree and confirm. *1138In order for petitioner to have received the benefit of the good cause exception, it was incumbent upon her to demonstrate that, within 30 days of the date of the incident, she filed with her employer a written notice, signed by her or someone on her behalf, “setting forth the particulars of the time, place, nature and cause of the accident and the nature of the injury” (2 NYCRR 331.2 [b]). Alleging that she satisfied that requirement, petitioner relied on two medical reports submitted to her employer within the relevant 30 days, one from her treating psychiatrist and one from a doctor working for her employer. Neither of those reports, however, made any mention of a January 18, 2001 incident, much less set forth any of the specifics concerning the time, place, nature or cause thereof (see 2 NYCRR 331.2 [b]). Accordingly, we find that the determination denying petitioner’s application for performance of duty disability retirement benefits for failure to provide the necessary written notice is supported by substantial evidence and will not be disturbed. Cardona, EJ., Mercure and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

In a probate proceeding, the residuary legatee named in an instrument, dated December, 1955, offered for probate as decedent’s last will and testament, appeals from so much of a decree of the Surrogate’s Court, Queens County, rendered December 16, 1959 after a nonjury trial, as denies probate to said instrument on the ground of lack of testamentary capacity and on the ground of undue influence. Decree modified on the law and the facts: (1) by striking out from the fourth decretal paragraph the provision adjudicating “ that the purported instrument was the result of undue influence exercised by Luvina Barbaro, the residuary legatee;” and (2) by substituting therefor a contrary adjudication. As thus modified, the decree insofar as appealed from is affirmed, with costs to all parties filing briefs, payable out of the estate. Findings of fact inconsistent herewith are reversed and new findings *664are made as indicated herein. In our opinion, while the evidence does establish the finding that decedent lacked testamentary capacity, it fails to establish the finding that the propounded instrument was the result of undue influence exercised by the residuary legatee (cf. Matter of Walther, 6 N Y 2d 49). Ughetta, Christ and Pette, JJ., concur; Nolan, P. J., and Brennan, J., concur in the modification with respect to the issue of undue influence, but dissent from the affirmance which is based on the finding that the decedent lacked testamentary capacity, and vote to reverse the decree in toto and to admit the instrument to probate, with the following memoranda: Nolan, P. J.: In my opinion the finding of testamentary incapacity as well as the finding of undue influence is against the weight of the credible evidence. And this is so even if it be assumed that the special guardian and the public administrator are legally empowered to waive the statutory prohibition against disclosures by the decedent’s doctor and nurse and that the testimony of such doctor and nurse was properly admitted and may be considered. Brennan, J.: I agree with the Presiding Justice. I dissent on the additional ground, however, that it was error to permit the special guardian, appointed as such for unknown heirs of the decedent’s deceased sister, to waive the statutory prohibition against disclosure by the doctor and the nurse of the information acquired by them in a professional capacity while attending decedent as their patient (Civ. Prac. Act, §§ 352, 354). Although any “party in interest” is empowered to waive the statutory prohibition (Civ. Prac. Act, § 354), here the special guardian did not file objections to the probate of the alleged will, and in my opinion he was not a “ party in interest ” as that phrase is generally .understood and defined by law (cf. Surrogate’s Ct. Act, § 314, subd. 10). Error likewise was committed in permitting the public administrator to waive the statutory prohibition against disclosure by the doctor and the nurse (cf. Matter of Laine, 8 A D 2d 941). Without the testimony of the doctor and the nurse there is no basis whatever for a finding of testamentary incapacity.

In an action for a declaratory judgment to determine plaintiff’s liability under the “uninsured automobile endorsement” on its automobile liability insurance policy issued to defendant, and to determine whether it is obliged to proceed with the arbitration of a claim under said indorsement, the plaintiff appeals from a judgment of the Supreme Court, Nassau County, rendered March 11, 1960 (and entered March 18, 1960), after a non jury trial, dismissing the complaint and, in effect, holding that plaintiff is liable and that it is required to proceed with the arbitration of the claim. Judgment affirmed, with costs. In our opinion, plaintiff is estopped from disclaiming liability. With full knowledge of defendant’s alleged breach of the policy conditions, plaintiff demanded and received: (1) a copy of the report of the defendant’s physical examination in his action against one, Matthews, an insured motorist — an action which defendant had settled without plaintiff’s consent; and (2) a physical examination of the defendant by its own doctor. Plaintiff had no right to such report and to such examination except under a valid policy which covered the claim then being asserted by defendant under the “ uninsured automobile endorsement ” based on the negligence of one Negron, an uninsured motorist. By thus proceeding plaintiff must be deemed to have waived its right to reject the claim and to be estopped from now disclaiming its liability under the policy (cf. Draper v. Oswego County Fire Relief Assn., 190 N. Y. 12, 15; Gibson Elec. Co. v. Liverpool & London & Globe Ins. Co.. 159 N. Y. 418, 426-427; Kiernan v. Dutchess County Mut. Ins. Co., 150 N. Y. 190, 194-195). Nolan, P. J., Beldock and Pette, JJ., concur; Brennan, J., not voting; Christ, J., dissents and votes to reverse the judgment in favor of defendant and to grant judgment in favor of the plaintiff insurer, declaring that plaintiff is not liable to defendant on its *665policy under the “ uninsured automobile endorsement ” and that it is not required to proceed with the arbitration of the claim based on such indorsement, with the following memorandum: Under the caption “ Exclusions ” in the indorsement in question, it is provided in section (b) that the indorsement does not apply to bodily injury to the insured with respect to which the latter shall, without the written consent of the insurer, “ make any settlement with or prosecute to judgment any action against any person * * * who may be legally liable therefor ”. Under the caption “ Conditions ” in the indorsement, it is provided in section 2 that if. the insured “ shall institute any legal action for bodily injury * * * against any owner of or any other person operating an automobile involved in the accident, a copy of the summons and complaint or other process served in connection with legal action shall be forwarded immediately to the * * * [insurer] by the insured or his representative”. These provisions are conditions, for breach of which by the insured the latter loses his right to recover from the insurer on this indorsement (cf. Draper v. Oswego County Fire Relief Assn., 190 N. Y. 12,18). These conditions, together with the provisions in section 6 (under the caption “ Conditions ”) which give plaintiff rights in the nature of subrogation as to claims the insured might have for his injuries against “ the owner or operator of any automobile involved in the accident ”, plainly contemplate settlements with and legal actions against any owner or operator of any automobile involved in the accident, including other insured motorists as well as uninsured motorists. In my opinion, defendant failed to sustain the burden of proving that plaintiff, by any act or course of conduct subsequent to acquiring knowledge of his (defendant’s) breach of the conditions, waived or estopped itself from asserting its right to disclaim liability on the ground of his breach of such conditions. The accident occurred on January 1, 1957. Three automobiles were involved in the accident: (1) defendant’s automobile which was covered by plaintiff’s insurance policy; (2) another insured automobile owned by one Matthews; and (3) an uninsured automobile owned by one Negron. Defendant commenced an action against Matthews on February 14, 1957, by service of summons and complaint. That action was settled in March, 1958. Although defendant’s report of the accident reached plaintiff within two days thereafter, no notice of the action against Matthews was given to plaintiff until March or April, 1958. The summons and complaint in that action were never forwarded to plaintiff; and notice of the settlement with Matthews was not given to plaintiff before April 30, 1958, when plaintiff received defendant’s executed proof of loss based upon the “ uninsured automobile endorsement ” on the policy. Thereafter, the following events occurred: (1) defendant’s attorney submitted to plaintiff, at its request, a report of a physical examination of defendant which had been made by Matthews’ insurance carrier or its physician; (2) defendant submitted himself to a physical examination by a physician designated by plaintiff; (3) each of the parties, pursuant to the policy provisions, appointed an appraiser for the purpose of appraising the amount due defendant because of his injuries; and (4) oral negotiations ensued between representatives of the plaintiff and defendant. It is undisputed that the. appraisers were to meet on September 19, 1958, and that two days before such date the plaintiff withdrew the appointment of its appraiser, disclaimed liability on the policy indorsement in question, and commenced this action to determine the rights of the parties under the policy. The insurance policy contains two provisions as to waiver. Condition 23, which is part of the basic or main part of the policy and which the caption expressly declares shall “ apply to all coverages,” provides that the terms of the policy shall not be “ waived or changed, except by endorsement issued to form a part of this policy, signed by” certain officers of the plaintiff. Condition 5 of the said “uninsured *666automobile endorsement” státes that the plaintiff “shall not be held to have waived any of its rights by any act relating to appraisal.” Plaintiff is entitled to enforcement of the provisions of both Condition 23 and Condition 5 (cf. Bazar v. Great Amer. Ind. Co., 306 N. Y. 481, 489; Drennan v. Sun Ind. Co., 271 N. Y. 182; Nothhelfer v. American Sur. Co. of N. Y., 277 App. Div. 1009, affd. 302 N. Y. 910), unless its conduct has been such as to estop it from such enforcement (Bishop v. Agricultural Ins. Co., 130 N. Y. 488; Sergent v. Liverpool & London & Globe Ins. Co., 155 N. Y. 349, 355; Smoldone v. President & Directors of Ins. Co. of North America, 162 N. Y. 580). To give' rise to an estoppel, however, plaintiff’s conduct must have misled defendant to change his position to his prejudice. In order to succeed, one who invokes the doctrine of estoppel against another must first show that, in reliance on the other’s conduct, he has changed his position and would be defrauded or otherwise be prejudiced unless the other person be held to be estopped (cf. O’Dowd v. American Sur. Co. of N. Y., 3 N Y 2d 347, 355; Lavine v. Indemnity Ins. Co., 260 N. Y. 399, 409; Rothschild v. Title Guar. & Trust Co., 204 N. Y. 458, 462; Gearty v. Mayor of City of New York, 171 N. Y. 61, 72, 73; Thomson v. Poor, 147 N. Y. 402, 409; Underwood v. Farmers’ Joint Stock Ins. Co., 57 N. Y. 500, 504—506; Shapley v. Abbott, 42 N. Y. 443, 447-448; Ashland Window & Housecleaning Co. v. Metropolitan Cas. Ins. Co., 269 App. Div. 31, 36; Black Star Line v. Baltica Ins. Co., 220 App. Div. 434, 438; Firestone v. Miroth Constr. Co., 215 App. Div. 564, 565-566). It is important to observe that here no claim is made that the insured (defendant) lost a right because of any action by plaintiff, the insurer. The fact is, of course, that defendant had lost his rights under the “ uninsured automobile endorsement ” solely by reason of his own breach of the policy conditions committed by him prior to any of the acts of the plaintiff upon which he now relies. The acts of the plaintiff did not take those rights from him. He is, nevertheless, seeking to take from the plaintiff the rights it acquired by virtue of his breach. While I have no doubt that the acts of plaintiff were such as to lead defendant to believe that plaintiff would not disclaim liability, I find on this record that such acts did not in any way mislead or prejudice defendant by either causing him to lose any right which he had against plaintiff or against Negron (the uninsured motorist) or by making more difficult the enforcement of any such right. The fact is that when the plaintiff advised defendant that it would not pay, the Statute of Limitations against Negron had not yet run; defendant still retained intact his complete remedy against Negron. Indeed, the defendant himself must have recognized this, for he did not in his answer to the complaint assert any change of position or prejudice. In other words, in reliance on plaintiff’s conduct defendant did nothing and omitted nothing which impaired his rights or prejudiced his remedies. At the time plaintiff disclaimed liability, defendant was still in the same position; he could have proceeded to enforce his rights against Negron. Under such circumstances the doctrine of estoppel cannot be invoked to annul a right which would otherwise be available (see eases last cited). The learned Justice at Special Term, in his opinion in the case at bar (Merchants Mut. Cas. Co. v. Wildman, 21 Misc 2d 1073, 1075), recognized and agreed with the principle of law last stated, namely: that in the absence of prejudice there can be no estoppel. However, he found: (1) that plaintiff’s inconsistent conduct and the consequent delay have “ probably caused the insured’s [defendant’s] action against Negron, the uninsured driver, to be barred by the Statute of Limitations; ” and (2) that such conduct and delay have operated “to the severe prejudice of the insured” (the defendant). In my opinion, for the reasons already stated, these findings are not supported by the record, and contrary findings must be made. [21 Misc 2d 1073.]

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered May 22, 2006 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CFLR article 78, to review determinations of the Central Office Review Committee denying his grievances. While incarcerated at Eastern Correctional Facility in Ulster County, petitioner filed grievances alleging that he was improperly being denied the right to participate in a college program. Such action had been taken against petitioner after certain testing materials were found to be missing from the area of the prison where he worked as an inmate clerk. After the grievances were denied and such denials were upheld on administrative appeal, petitioner commenced this CFLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition. This appeal ensued. This Court has been apprised by the office of the Attorney General that, since taking this appeal, petitioner has been transferred from Eastern Correctional Facility. According to the Attorney General’s office, his participation in educational *1139programs at other facilities will not be limited, as it was at Eastern. Inasmuch as petitioner is no longer aggrieved by the administrative determinations underlying this proceeding, his appeal is moot and must be dismissed (see Matter of McMoore v Greene, 31 AD3d 1007, 1008 [2006], lv denied 7 NY3d 717 [2006]; Matter of Parrilla v Donelli, 25 AD3d 1046, 1047 [2006]). Cardona, EJ., Crew III, Peters, Mugglin and Kane, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.

These two actions were consolidated and tried together. Action No. 1 was brought by plaintiff George S. Moss to compel the conveyance to him of certain real property, alleged to have been fraudulently conveyed to other defendants by defendant Roy M. Carstairs; to compel an accounting of the rents and profits derived from the property; and to recover from defendant Carstairs a balance alleged to be due under a written contract. In that action, defendant Carstairs counterclaimed for the payments made by him under the contract, on the ground that he had executed the contract and made the payments under duress. Action No. 2 was brought by plaintiff Carstairs to declare the written contract and certain documents delivered thereunder to defendant Szerlip to be void on the ground that they were obtained from him (Carstairs) by duress. Moss, the plaintiff in Action No. 1 and one of the defendants in Action No. 2, and Szerlip, one of the defendants in Action No. 2, appeal: (1) from so much of a judgment of the Supreme Court, Kings County, rendered January 19, 1959, after a nonjury trial, as dismissed the complaint of plaintiff Moss in Action No. 1; and (2) from an order denying a motion to set aside such dismissal and for a new trial. Judgment, insofar as appealed from by Moss, affirmed, without costs. No opinion. Appeal by Szerlip dismissed. He is not a party aggrieved. Appeal from order dismissed. No such order is printed in the record. Ughetta, Acting P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.

Mercure, J. Appeal from an order and judgment of the Supreme Court (Clemente, J.), entered August 16, 2005 in Sullivan County, which granted a motion by defendant Board of Management of Four Star Estates Condominium for summary judgment dismissing the complaint against it. This action involves a 50-foot unimproved section of Our Street, also known as Town Road 176, in the Town of Fallsburg, Sullivan County. Plaintiffs own property either near or fronting the approximately 200-foot paved section of Our Street, which runs through the Pinewood subdivision established by the David Proyect Construction Corporation (hereinafter Proyect). Defendant Four Star Development Associates (hereinafter Associates) constructed a condominium complex on land bordering the Pinewood development to the north. The unimproved portion of Our Street terminates at the boundary of the Four Star property, which does not otherwise abut the paved portion of Our Street. Pursuant to a site plan approved by the Town Planning Board, the current owner of the common areas of the condominium complex, defendant Board of Management of Four Star Estates Condominium (hereinafter defendant), cleared the unimproved portion of Our Street and constructed a driveway thereon connecting the condominium parking lot with the paved portion of Our Street. Plaintiffs then commenced this action seeking an injunction *1140preventing defendant from using the driveway, along with damages and an order requiring defendants to reinstate the street to its previous condition. Plaintiffs, who did not join the Town of Fallsburg as a party, alleged that the unimproved section of Our Street is not a public highway. Following joinder of issue, Supreme Court granted defendant’s motion for summary judgment dismissing the complaint against it. Plaintiffs Bruce Perlmutter and Cindy Perlmutter (hereinafter collectively referred to as plaintiffs) appeal,* asserting that summary judgment was improperly granted because factual issues exist regarding whether the unimproved portion of Our Street ever became a public highway and, if so, whether that portion had been abandoned by the Town pursuant to Highway Law § 205 (1). Specifically, plaintiffs challenge Supreme Court’s determination that defendant, as an abutting landowner to a public highway, had a right of access to Our Street, which it properly exercised by building a driveway over the unimproved portion. We affirm. Initially, we conclude that Supreme Court correctly determined that the Town acquired the fee to and adopted the entire length of Our Street as a public highway by dedication. Inasmuch as dedication of property for a street is in the nature of a gift, a town acquires a fee to a highway by dedication when there has been a complete surrender to public use of the land by the owners, acceptance by the town, and some formal act on the part of the relevant public authorities adopting the highway, or use by the public coupled with a showing that the road was “ ‘kept in repair or taken in charge’ by public authorities” (Matter of Desotelle v Town Bd. of Town of Schuyler Falls, 301 AD2d 1003, 1003-1004 [2003], quoting People v Brooklyn & Queens Tr. Corp., 273 NY 394, 400 [1937]; see Matter of City of New York [Sealand Dock & Term. Corp.], 29 NY2d 97, 101 [1971]; Matter of Hunter, 163 NY 542, 548 [1900]; see also Highway Law § 171 [1]). Notably, absent a formal act adopting the property as a public street, a town’s acceptance of a deed conveying the fee to an unimproved strip of land is not enough to create a public highway (see Matter of Desotelle v Town Bd. of Town of Schuyler Falls, supra at 1004; see also Matter of Hunter, supra at 548). Here, the record evinces that although the unpaved portion had never been used by the public, the Town Board adopted a resolution in 1974 accepting a deed from Proyect to the entire length of Our Street, including the 50-foot section that is in question. Further, in accordance with Highway Law § 171, the *1141Town Board formally directed the Town Superintendent of Highways to make an order laying out the road in its entirety as described in the deed, and the Superintendent of Highways so ordered that the land be laid out as a public highway. Thereafter, the Town referenced the entire length of Our Street— including the unpaved portion—on a tax map, official highway map and inventory of town highways, and paved and maintained all but the last 50 feet of Our Street. While a town is free to accept only a portion of the length of a dedicated road as a public highway and reject the remaining part (see People v Underhill, 144 NY 316, 323-326 [1895]; Matter of Bayer v Pugsley, 13 Misc 2d 610, 612 [1958], affd 7 AD2d 828 [1958]; cf. Matter of Flacke v Strack, 98 AD2d 881, 881 [1983]), we conclude that the formal acts of the Town Board and the Superintendent of Highways, along with the maintenance and use of all but the last 50 feet, demonstrated an intent to lay out the entire length of the dedicated property as a public highway (see Matter of Hunter, supra at 548; Smith v Town of Sandy Creek, 12 Misc 2d 916, 919-920 [1958], affd 8 AD2d 688 [1959], lv denied 7 NY2d 707 [1959]; cf. Matter of Desotelle v Town Bd. of Town of Schuyler Falls, supra at 1004; Matter of Hillelson v Grover, 105 AD2d 484, 485 [1984]). Moreover, Supreme Court properly determined that Highway Law § 205 (1) is not applicable. Highway Law § 205 (1) provides that “[e]very highway that shall not have been opened and worked within six years from the time it shall have been dedicated to the use of the public, or laid out, shall cease to be a highway . . . [and] shall be deemed abandoned as a right-of-way.” Section 205 (1) sets forth a six-year limitation on the life of an unused public easement; it does not apply where, as here, a town has acquired a fee to the land in question (see New York Cent. & Hudson Riv. R.R. Co. v City of Buffalo, 200 NY 113, 119 [1910]; Martin v County of Delaware, 61 AD2d 1111, 1111 [1978], Iv denied 45 NY2d 711 [1978]; Town of Clarkstown v Brent, 60 AD2d 627, 627 [1977], lv denied 44 NY2d 654 [1978]; Matter of Fusaro v D’Angelo, 41 AD2d 567, 567-568 [1973]). Accordingly, inasmuch as Our Street is a public highway and “new use, consistent with its use as an open public street, must be tolerated by” the adjacent landowners, Supreme Court did not err in rejecting plaintiffs’ challenge to defendant’s use of the 50-foot portion of Our Street at issue to access its parking lot (Matter of McNair v McNulty, 295 AD2d 515, 515 [2002], lv dismissed 99 NY2d 552 [2002], lv denied 99 NY2d 510 [2003]; see Matter of Scoglio v County of Suffolk, 85 NY2d 709, 712 [1995]). We further reject plaintiffs’ argument that defendant’s *1142driveway was built in violation of an agreement between Proyect and Associates wherein Associates agreed not to “attempt to construct an extension of the existing road [Our Street] to its premises.” Defendant established that, by virtue of its dedicated parameters, Our Street extended all the way to defendant’s property, notwithstanding the fact that the last 50 feet remained unpaved. In any event, it is undisputed that defendant, as a separate entity from Associates, had no notice of and was not a party to the agreement, which was not recorded in the Sullivan County Clerk’s office and, thus, Supreme Court properly determined that defendant is not bound by the agreement. Plaintiffs’ remaining arguments are either unpreserved, academic, not properly before us, or otherwise lacking in merit. Cardona, PJ., Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the order and judgment is affirmed, with costs. The remaining plaintiffs have not appealed. Associates served an answer but has not otherwise participated in the action.

Defendant appeals: (1) from an order of the County Court, Kings County, dated September 18, 1959, denying, after a hearing, his coram nobis application to vacate a judgment of said court, rendered April 30, 1947, convicting him, on his plea of guilty, of robbery in the third degree, and sentencing him, as a second felony offender, to serve a term of 5 to 20 years; and (2) from an order of said court, dated September 18, 1959, denying his motion for reargument. On February 6, 1953, defendant was resentenced, as a second felony offender, to serve a term of 5 to 15 years. In 1956, the first prior felony was vacated; and on August 24,1956, defendant was resentenced, as a first felony offender, to serve a term of 5 to 7 years. Order dated September 18,1959, denying defendant’s coram nobis application, reversed on the law and matter remitted to the County Court for a further hearing for the purpose hereinbelow stated. No findings or questions of fact have been considered. Appeal from the order of September 18, 1959, denying reargument, dismissed. This order is not appealable. The indictment upon which defendant entered the guilty plea charged him with robbery in the first degree, grand larceny in the first degree, assault in the second degree, and possession of a dangerous weapon. Defendant contends that in 1947, when he pleaded guilty to robbery in the third degree, he relied: (a) on the court’s statement that, if found guilty of robbery in the first degree, as charged, he would have to be sentenced as a second offender in view of Ms prior conviction in Virginia, and could receive a prison term of up to 60 years; and (b) on the court’s promise that, if he entered the guilty plea to the lesser offense (robbery in the third degree), the court would sentence Mm to no more than 15 years, as a second offender. In 1956, in a habeas *668corpus proceeding, the prior Virginia conviction was vacated on the ground that it had been procured without due process. The ground for this comm nobis application is that the court’s statement with respect to sentencing as a second offender constituted a fraud, since the Virginia conviction was invalid, even though it was not so declared until some years later. During defendant’s cross-examination on the hearing upon this application, he was asked whether he had committed the holdup in question. However, he was not given an opportunity to answer. An objection was taken to the question; colloquy followed, during the course of which the court indicated that it would be a waste of time to take further evidence; and no further evidence was in fact adduced. In the interests of justice, a further hearing should be held and the circumstances under which defendant entered the guilty plea should be fully explored. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 14, 2006, which ruled that claimant was ineligible to receive additional unemployment insurance benefits pursuant to Labor Law § 599. While receiving regular unemployment insurance benefits, claimant applied for career training benefits pursuant to Labor Law § 599 for the purpose of attending community college in an individual studies program and earning an Associate’s degree. In a subsequent application, claimant requested additional benefits, indicating that she had changed her major to office technology and intended to earn an Associate’s degree in Applied Science and become an administrative assistant. After various proceedings, the Unemployment Insurance Appeal Board denied her applications. Claimant appeals. We affirm. In order to be eligible for additional training benefits pursuant to Labor Law § 599, a claimant must attend an approved training course or program “clearly leading to the *1143qualifications or skills for a specific occupation” (12 NYCRR 482.2 [b]; see Matter of Romain [Commissioner of Labor], 8 AD3d 869, 870 [2004]). The statute provides that such training may not be approved unless it “will upgrade the claimant’s existing skill or train the claimant for an occupation likely to lead to more regular long term employment” (Labor Law § 599 [1] [a] [1]; see Matter of Alduen [Commissioner of Labor], 26 AD3d 579, 580 [2006]) or unless there is a substantial impairment of the claimant’s occupational employment opportunities because of conditions in the labor market (see Labor Law § 599 [1] [a] [2]). Given that claimant’s individual studies program did not lead to a specific occupational goal, it did not meet the statutory requirements and the Board properly denied her applications (see Matter of Wasserman [Commissioner of Labor], 251 AD2d 883, 884 [1998], lv denied 92 NY2d 815 [1998]). Based on the available occupational projections for employment opportunities for administrative assistants, the Board reasonably found that training in this field would not likely lead to more regular long-term employment for claimant (see Matter of Giglio [Sweeney], 242 AD2d 844, 844-845 [1997]). In any event, a claimant will not receive benefits under Labor Law § 599 unless he or she has been accepted in or has applied for an approved training program while still receiving regular unemployment benefits (see Matter of Yard [Commissioner of Labor], 20 AD3d 644, 645 [2005]; Matter of Haydenn [Commissioner of Labor], 278 AD2d 652, 653 [2000]). In this case, claimant’s application based on her new major of office technology was submitted after her regular unemployment insurance benefits were exhausted, rendering her ineligible for the additional benefits. Under the circumstances, we conclude that the decision of the Board is supported by substantial evidence. Mercure, J.E, Peters, Rose, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

Plaintiff appeals from a judgment of the Supreme Court in favor of defendant Morehouse, based upon a verdict of no cause of action in an automobile negligence case. Plaintiff alleged that, while standing in a parking lot *669where he was the attendant, he was negligently struck by an automobile owned by defendant Morehouse and being operated by one Hodges with the owner’s consent. Hodges died before the trial and the action was discontinued as to him. Plaintiff contends that the verdict was against the weight of evidence and urges two claimed errors in the reception of evidence. Plaintiff was in charge of a parking lot owned by a Grand Union store. He issued time tickets as cars entered the lot, and customers of the store could park free for one hour. All others paid a fee which plaintiff kept as his compensation. Hodges drove defendant’s car into the lot without stopping for a ticket, parked in an area marked “ no parking ” near the store entrance, and entered the store. Plaintiff had some words with Hodges before he entered the store, in the store, and when Hodges returned to the car. As Hodges sat in the driver’s seat where plaintiff had been talking to him, plaintiff walked around the rear of the car and stood on the right side near the rear. Hodges backed the car past the plaintiff and then started forward, and the right front fender and headlight struck the plaintiff. This version of the accident was corroborated by two eyewitnesses. " There was no direct evidence to the contrary. Defendant’s answer denied the allegation that Hodges was driving the car with the owner’s permission and consent, and denied an accident. Plaintiff called defendant Morehouse as his witness, and after procuring the admission that he authorized Hodges to use the car to go to the Grand Union store and that Hodges started out with the ear, the following took place: “ Q. When he returned that day did he report to you he had an accident on the Grand Union Lot? A. Tes sir. Cross Examination. By Mr. Smith: Q. What did he tell you about the accident? Mr. Amyot: I object to it as incompetent, irrelevant and immaterial. The Court: Overruled. Mr. Amyot: Exception. A. He told me he was parked at the Grand Union store and when he pulled up around in the parking lot he parked where he said it was a no-parking place and he told Tony he wanted to get a can of detergent and would come right out. He said Provo jumped on the front fender of the car when he started to leave.” This evidence was clearly hearsay and was adduced, over objection, by a question that expressly called for hearsay. We do not think the admission of this evidence can be justified on the theory that plaintiff had “opened the door”. Plaintiff’s counsel did not and did not attempt to elicit any conversation or any description of the accident. Faced with a denial of permission, he was entitled to show that the permission extended to the precise time when plaintiff sustained his accident. He did no more. Such incompetent evidence was bound to be prejudicial to plaintiff’s case because it was the only evidence which even tended to contradict plaintiff’s theory. Defendant was also allowed to show, over objection, that plaintiff had sustained another accident on the parking lot. This was competent to the extent that the evidence related to injuries sustained on another occasion. But it went far beyond that. The line of questioning clearly demonstrates that counsel’s primary purpose was to show that the other accident “ started with an argument in the parking lot over a parking fee ” and to suggest plaintiff’s greater concern for a fee than for his safety. These errors, and the fact that the verdict seems to be against the weight of evidence, requires a new trial. Judgment reversed, on the law and facts, and a new trial ordered', with costs to abide the event.