2020 07 09 Dec

Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.
11768 The People of the State of New York, Ind. 2375/17

Respondent,
-against-
Kelmiet Vega, also known as Kelmeit Vega,

Defendant-Appellant.
_________________________
Center for Appellate Litigation, New York (Robert S. Dean of

counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (John T. Komondorea of

counsel), for respondent.
_________________________
An appeal having been taken to this Court by the above-named

appellant from a judgment of the Supreme Court, Bronx County
(Albert Lorenzo, J.), rendered March 22, 2018,
Said appeal having been argued by counsel for the respective

parties, due deliberation having been had thereon, and finding
the sentence not excessive,
It is unanimously ordered that the judgment so appealed from

be and the same is hereby affirmed.
THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 9, 2020
_______________________
CLERK
Counsel for appellant is referred to
§ 606.5, Rules of the Appellate
Division, First Department.
11770 In re Maria S., and Others, Dkt. NA-26991-3/17
Children Under Eighteen Years of Age

etc.,
Angel A.,
Respondent-Appellant,
Administration for Children’s Services,

Petitioner-Respondent.
_________________________
Andrew J. Baer, New York, for appellant.
James E. Johnson, Corporation Counsel, New York (John Moore of

Dawne A. Mitchell, The Legal Aid Society, New York (Amy

Hausknecht of counsel), attorney for the children.
_________________________
Order of fact-finding and disposition (one paper), Family
Court, Bronx County (Valerie A. Pels, J.), entered on or about
July 10, 2019, which, to the extent appealed from as limited by
the briefs, after a hearing, determined that respondent Angel A.
abused the child Maria S. and derivatively abused the children
Jordanny P. and Swander A., unanimously affirmed, without costs.
The court’s determination that respondent sexually abused
Maria is supported by a preponderance of the evidence (see Family
Court Act § 1046[b][I]). The child’s in-court testimony, which
the court credited, that respondent, her stepfather, digitally
penetrated her vagina is sufficient to support the abuse finding
(see Matter of Markeith G. [Deon W.], 152 AD3d 424, 424 [1st Dept
2017]). There is no basis for disturbing the court’s credibility
determinations, which included an evaluation of the alleged

inconsistencies in the child’s testimony (see id.). Contrary to
respondent’s contention, sexual gratification can be inferred
from the act itself (People v Leonard, 29 NY3d 1, 8 [2017]; see
Matter of Shannon K., 222 AD2d 905, 906 [3d Dept 1995]).
The court’s determination that respondent derivatively abused
Jordanny and Swander is supported by a preponderance of the
evidence. Respondent sexually abused Maria with the other
children sleeping in a nearby room while their mother was at work
and he was their sole caretaker. Respondent’s conduct
demonstrates parental judgment and impulse control so defective
as to create a substantial risk of harm to the children in his
care (see Markeith G., 152 AD3d at 425; Matter of Taurice M.
[Gregory A.], 147 AD3d 844, 845 [2d Dept 2017]).

_______________________
CLERK
11771- Index 154922/18

11771A &
M-1579 Frank Mazzocchi,
Plaintiff-Appellant,
-against-
Vivienne Gilbert, Esq., et al.,

Defendants-Respondents.
_________________________
Frank Mazzocchi, appellant pro se.
Braverman Greenspun, P.C., New York (Tracy Peterson of counsel),

for Vivienne Gilbert and Howard J. Lazarus, respondents.
Thomas M. Curtis, respondent pro se.
Anderson Kill, P.C., New York (Grant E. Brown of counsel), for

Deborah B. Koplovitz, Alan M. Goldberg, Bruce A. Cholost and
Andrew J. Wagner, respondents.
Gallett Dreyer & Berkey, LLP, New York (Morrell I. Berkowitz of

counsel), for Morrell I. Berkowitz, respondent.
_________________________
Order, Supreme Court, New York County (Alan C. Marin, J.),
entered on or about March 25, 2019, which, to the extent
appealable, granted the motions of defendants Vivienne Gilbert,
Esq., Howard J. Lazarus, Esq., Deborah B. Koplovitz, Esq.,
Morrell I. Berkowitz, Esq., Alan M. Goldberg, Esq., Bruce A.
Cholst, Esq., and Andrew J. Wagner, Esq. to dismiss the complaint
as against them, unanimously affirmed, without costs. Appeal from
portion of the order that sua sponte dismissed the complaint as
against defendant Thomas M. Curtis, Esq., unanimously dismissed,
without costs, as nonappealable.
Plaintiff fails to state a cause of action for violation of

Judiciary Law § 487(1) against defendants Berkowitz, Gilbert, and
Lazarus because he does not allege that they acted as counsel of
record in any legal proceeding to which he was a party (see Sun
Graphics Corp. v Levy, Davis & Maher, LLP, 94 AD3d 669, 669 [1st
Dept 2012]; Siller v Third Brevoort Corp., 145 AD3d 595, 596 [1st
Dept 2016], lv denied 30 NY3d 905 [2017]). Plaintiff also fails
to state a cause of action for violation of § 487(1) against
defendants Koplovitz, Goldberg, Cholst, and Wagner because the
allegations in the complaint do not give rise to the inference
that their actions exceeded the bounds of routine advocacy (see
Seldon v Lewis Brisbois Bisgaard & Smith LLP, 116 AD3d 490, 491
[1st Dept 2014], lv dismissed 25 NY3d 985 [2015]; see also Bill
Birds, Inc. v Stein Law Firm, P.C., 34 NY3d 1084, [2020]).
Plaintiff’s claims that Koplovitz submitted affidavits containing
misstatements or perjury are not sufficiently egregious to
support a cause of action under § 487 because the statements
related to immaterial facts (see Shawe v Elting, 161 AD3d 585,
588 [1st Dept 2018]).
The portion of the order dismissing the claims against
defendant Curtis, which appear to be meritless and time-barred,
was issued sua sponte and therefore is not appealable as of right
(CPLR 5701[a][2]; see Sholes v Meagher, 100 NY2d 333, 335 [2003];
Hladun-Goldmann v Rentsch Assoc., 8 AD3d 73, 74 [1st Dept 2004]).
M-1579 - Mazzocchi v Gilbert, et al.
Motion to strike plaintiff’s reply brief, denied.

_______________________
CLERK
11772 2520 Jerome Avenue, LLC, Index 27270/18E

-against-
The Corporation of the Rector, Churchwardens

and Vestrymen of Saint James Episcopal,
Defendant-Respondent.
_________________________
Herrick, Feinstein LLP, New York (Scott T. Tross of counsel), for

appellant.
Goldstein Hall, PLLC, New York (Brian J. Markowitz of counsel),

for respondent.
_________________________
Order, Supreme Court, Bronx County (Ruben Franco, J.),
entered on or about October 17, 2018, which, inter alia, granted
defendant’s motion for summary judgment dismissing the complaint,
unanimously affirmed, with costs.
Plaintiff’s breach of contract claim was properly dismissed.
The record shows that defendant’s obligation under the parties’
contract was simply to apply for certain consents, not to obtain
them, and there was no triable issue of fact as to defendant’s
application for the consents. Plaintiff’s claimed need for
additional discovery was based solely on conjecture and
speculation, and is thus insufficient (see A.H.A. Gen. Constr. v
New York City Hous. Auth., 92 NY2d 20, 33 [1998]; Steinberg v
Schnapp, 73 AD3d 171, 177 [1st Dept 2010]).
Because the contract was one for sale of a “Protestant
Episcopal” church, the motion court was correct that it could not
order specific performance of the contract where the Bishop,

Standing Committee and Diocese had refused to approve the sale
(Religious Corporations Law § 12[2]; Soho Ctr. for Arts & Educ. v
Church of St. Anthony of Padua, 146 AD2d 407, 411 [1st Dept
1989]).
Furthermore, plaintiff’s claim for breach of the covenant of
good faith and fair dealing was properly dismissed as duplicative
of its breach of contract claim (see Logan Advisors, LLC v
Patriarch Partners, LLC, 63 AD3d 440, 443 [1st Dept 2009]), and
the claim for unjust enrichment was precluded by the existence of
a valid express agreement with regard to the same subject matter
(see MG W. 100 LLC v St. Michael's Prot. Episcopal Church, 127
AD3d 624, 626 [1st Dept 2015]).

_______________________
CLERK

Respondent,
-against-
Alden Lee,
_________________________
Jonathan Rosenberg, PLLC, Brooklyn (Jonathan Rosenberg of

Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of

_________________________
Judgment, Supreme Court, New York County (Ann E. Scherzer,
J.), rendered February 21, 2019, convicting defendant, upon his
plea of guilty, of attempted burglary in the second degree, and
sentencing him to a term of two years, unanimously affirmed.
Defendant’s challenge to his plea does not fall within the
narrow exception to the preservation requirement (see People v
Conceicao, 26 NY3d 375, 381 [2015]), and we decline to review it
in the interest of justice. As an alternative holding, we reject
it on the merits. Unlike the facts in People v Mox (20 NY3d 936
[2012]), there was nothing in defendant’s plea allocution itself
that required the court to inquire about a potential psychiatric
defense (see People v Robinson, 179 AD3d 568 [1st Dept 2020]).
Nor was the court’s duty to inquire triggered by statements made
during the preceding 18 months of plea negotiations with prior
counsel (see People v Rodriguez, 144 AD3d 498 [1st Dept 2016], lv
denied 28 NY3d 1188 [2017]).

Defendant made a valid waiver of his right to appeal (see
People v Thomas, 34 NY3d 545 [2019]; People v Bryant, 28 NY3d
1094 [2016]), which forecloses review of his excessive sentence
claim. (see People v Tolbert, 168 AD3d 498 [1st Dept], lv denied
33 NY3d 954 [2019]). Regardless of the validity of defendant’s
waiver of his right to appeal, we perceive no basis for reducing
the sentence.

_______________________
CLERK

Respondent,
-against-
Vladimir Gjinaj,
_________________________
Beverly Van Ness, New York, for appellant.
Darcel D. Clark, District Attorney, Bronx (Shera Knight of

_________________________
Judgment, Supreme Court, Bronx County (Martin Marcus, J.),
rendered March 4, 2019, as amended, March 11, 2019, convicting
defendant, after a jury trial, of assault in the first degree,
and sentencing him to a prison term of five years, unanimously
affirmed.
Defendant’s conviction was supported by legally sufficient
evidence, and was not against the weight of the evidence (People
v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for
disturbing the jury’s credibility determinations. The evidence
supported the inference that defendant intentionally caused
serious physical injury to the victim by slashing him with a box
cutter.
Defendant did not preserve any of his challenges to the
court’s jury instructions, and we decline to review them in the
interest of justice. As an alternative holding, we find no basis
for reversal. The court’s adverse inference instruction and its
explanation of reasonable doubt conveyed the appropriate

principles. Even assuming, without deciding, that defendant was
entitled to an instruction regarding the jury’s consideration of
certain evidence received as past recollection recorded, any
error in failing to charge on that relatively insignificant
evidence was harmless (see People v Crimmins, 36 NY2d 230
[1975]).
Defendant’s ineffective assistance of counsel claims are
unreviewable on direct appeal because they involve matters not
reflected in, or fully explained by, the record (see People v
Rivera, 71 NY2d 705, 709 [1988]). Accordingly, since defendant
has not made a CPL 440.10 motion, the merits of the
ineffectiveness claims may not be addressed on appeal. In the
alternative, to the extent the existing record permits review, we
find that defendant received effective assistance under the state

and federal standards (see People v Benevento, 91 NY2d 708,
713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).

_______________________
CLERK
11775 In re Atiya D.K., Dkt. 0-1672/18

Petitioner-Respondent,
-against-
Curtis J.C.,
Respondent-Appellant.
_________________________
Andrew J. Baer, New York, for appellant.
Leslie S. Lowenstein, Woodmere, for respondent.

_________________________
Order of fact-finding, Family Court, New York County (Jacob
K. Maeroff, Referee), entered on or about March 15, 2019, which
determined that respondent committed the family offenses of
disorderly conduct and harassment in the second degree,
unanimously affirmed, without costs.
The finding that respondent committed the offenses of
disorderly conduct and harassment in the second degree is
supported by a fair preponderance of the evidence (see Family
Court Act § 832). Petitioner testified that respondent
confronted her in the vestibule of her apartment building, in the
presence of others, and chastised her over her parenting of the
parties’ older child. Respondent was irate, and yelled at
petitioner, poked his finger in her forehead, cursed at her, and
spit on her as he exited the lobby of the building (see Penal Law
§ 240.20 [disorderly conduct]; Matter of William M. v Elba Q.,
121 AD3d 489 [1st Dept 2014]). Petitioner also testified that,
on another occasion, on the street outside her apartment

building, respondent threatened her and the child with physical
harm (see Penal Law § 240.26[1] [harassment in the second
degree]; Matter of William M., 121 AD3d 489).
We perceive no basis for disturbing the court’s credibility
determinations (see Matter of Melind M. v Joseph P., 95 AD3d 553,
555 [1st Dept 2012]).
We have considered respondent’s remaining arguments and find
them unavailing.

_______________________
CLERK
11776- Index 650871/15

11777 Amedeo Angiolillo, et al.,
Plaintiffs-Respondents,
-against-
Christie’s, Inc., et al.,

Defendants-Appellants,
Diamfield, Ltd., etc., et al.,

Defendants.
_________________________
Hughes Hubbard & Reed LLP, New York (Daniel Weiner of counsel),
for Christie’s, Inc., appellant.
Patterson Belknap Webb & Tyler LLP, New York (Catherine A.

Williams of counsel), for Pelham Holdings, LLC and Guy Bennett,
appellants.
Clarick Gueron Reisbaum LLP, New York (Emily Reisbaum of

counsel), for Investel Finance, Ltd, Ishaia Trading Corp., Ishia
Gol and David Gol, appellants.
Herbert Smith Freehills, New York LLP, New York (A. Robert Dawes
of counsel), for respondents.
_________________________
Order, Supreme Court, New York County (Andrew Borrok, J.),
entered October 17, 2019, which, insofar as appealed from,
granted plaintiffs’ motion for leave to renew and, upon renewal,
granted partial summary judgment to the extent of finding that
plaintiffs’ father/grandfather, Senator Renato Angiolillo (the
Senator), purchased the diamond, unanimously affirmed, with
costs. Appeal from order, same court and Justice, entered on or
about May 3, 2019, which, insofar as appealed from, denied
defendants’ cross motion for summary judgment dismissing the
complaint (other than the claim for replevin) and denied the
motion by defendant Christie’s, Inc. to amend its answer,
unanimously dismissed, to the extent subsumed in defendants’
appeal from the order entered October 17, 2019, and the order
entered May 3, 2019, unanimously affirmed, without costs.
Defendants’ appeal as to the conversion claim rests, in
part, on arguments concerning plaintiffs’ lack of proof of the
Senator’s purchase of the diamond. However, those arguments
fail, given the documents generated in connection with Christie’s
2013 pre-auction investigation (investigation documents), which
establish that he did.
In granting plaintiffs’ motion for leave to renew based upon
the investigation documents, and upon renewal, holding that the
Senator had purchased the diamond, the court providently
exercised its discretion (Getson v Getson, 91 AD2d 540 [1st Dept
1982]; see also John v City of New York, 260 AD2d 187, 188 [1st
Dept 1999]). The unequivocal statements by Christie’s outside
counsel, set forth in the investigation documents, that the
Senator had purchased the diamond, were admissible admissions on
Christie’s part (Bellino v Bellino Constr.Co., 75 AD2d 630 [2d
Dept 1980]).
In arguing the statements are, instead, inadmissible
hearsay, Christie’s suggests its outside counsel lacked the
requisite authority to speak on its behalf, yet Christie’s touted
the authoritative nature of outside counsel’s investigation in
opposing plaintiffs’ summary judgment motion and advocating

dismissal of the complaint. For Christie’s to now aver it did
not “adopt” counsel’s statements in the investigation documents
accordingly rings hollow.
Christie’s also argues that, to constitute a party
admission, a party’s agent’s statements must be made to third
parties, and not to the principal itself (see e.g. Fruin-Colnon
Corp. v Niagara Frontier Transp. Auth., 180 AD2d 222, 234 [4th
Dept 1992]). Here, however, Christie’s itself made its agents’
statements to third parties, namely, to plaintiffs, and to the
court, to which it argued that its counsel’s investigation
disproved plaintiffs’ position, and buttressed its own.
We accordingly dismiss defendant’s appeal of the court’s
denial of summary judgment dismissing the conversion claim, in
its order entered May 3, 2019, to the extent such appeal relies
on lack of proof of the Senator’s purchase of the diamond. Such
appeal is subsumed in defendants’ appeal from the order entered
October 17, 2019, which we affirm.
All other issues implicated by the conversion claim require
a trial. The record does not resolve, as a matter of law,
whether defendants assumed or exercised control over plaintiffs’
personal property and interfered with their right of possession
(Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 50-51
[2006]), as it leaves unanswered questions about the Senator’s
post-purchase ownership, including the key question of whether he
owned the diamond at the time of his death or, at some point
before, transferred it to Girani.
That plaintiffs did not include the diamond’s value in
filings with Italian tax authorities in the years after the
Senator’s death does not estop them from asserting ownership
rights now. Such “tax estoppel” is applied where a party’s
subsequently-adopted litigation position flatly contradicts
express assertions previously made in tax filings (e.g. Mahoney-
Buntzman v Buntzman (12 NY3d 415, 422 [2009]; Walsh v Blaggards
III Rest. Corp., 131 AD3d 854 [1st Dept 2015]; Matter of Ansonia
Assoc. L.P. v Unwin, 130 AD3d 453 [1st Dept 2015]; Livathinos v
Vaughan, 121 AD3d 485 [1st Dept 2014]), but the omission of an
asset leaves all questions in regard to it open (see Matter of
Seaman (275 App Div 484 [3d Dept 1949], affd 300 NY 756 [1950];
Shyer v Shyer, 2020 NY Slip Op 30252(U), *5 [Sup Ct, NY County,
Jan. 28, 2020]).
On the issue of governing law, the court properly determined
that the relevant interest analysis supports application of New
York, not Swiss, law (see Bakalar v Vavra, 619 F3d 136, 144-145
[2d Cir 2010]; Schoeps v MoMA (594 F Supp 2d 461, 465 [SD NY
2009]). The strong New York contacts, combined with New York’s
overwhelming interest in protecting the integrity of its market
(Reif v Nagy, 61 Misc 3d 319, 322-323 [Sup Ct, NY County 2018],
mod. 175 AD3d 107 [1st Dept 2019]), warrants application of New
York law. The motion court correctly denied the Investel
defendants’ motion to dismiss the conversion claim as time-barred

(see White v City of Mount Vernon, 221 AD2d 345 [2d Dept 1995]),
as the record showed that the claim accrued when the Investel
defendants disposed of the diamond in 2013, and did not suggest
that the Investel defendants played a part in Milella’s alleged
scheme to embezzle the diamond in 2009. Defendants’ claims
regarding the propriety of the ruling were in any event raised on
reply and thus not properly before us. The court’s denial of
Christie’s motion to amend was a provident exercise of discretion
(Gonfiantini v Zino, 184 AD2d 368, 369 [1st Dept 1992]). The
proposed amendments concerned highly material facts, and the
court properly determined such material revisions would be
prejudicial to plaintiffs.
We have considered the parties’ remaining arguments and find
them unavailing.

_______________________
CLERK
11778 In re Avrie P. and Another, Dkt. NN-14243-4/18
Dependent Children Under Eighteen Years

of Age, etc.,
Meliza T.,
Administration of Children’s Services,

_________________________
Bryan S. Greenberg, New York, for appellant.
James E. Johnson, Corporation Counsel, New York (Jesse A.

Townsend of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Polixene

Petrakopoulos of counsel), attorney for the children.
_________________________
Order of fact-finding, Family Court, Bronx County (Michael
R. Milsap, J.), entered on or about May 20, 2019, which found
that respondent mother neglected the subject children,
unanimously reversed, on the law and the facts, without costs,
the findings of neglect vacated, and the petitions dismissed.
Petitioner failed to establish by a preponderance of the
evidence that the mother neglected the children by inflicting
excessive corporal punishment upon her daughter and by failing to
provide the minium standard of care to supervise her son. The
record shows that the mother used force, as a last resort, as an
effort to bring her daughter back home. The 10-year-old child
had fled the apartment because she wanted to play at the park and
was bored at home. The mother was concerned for her safety and
ran after her, and although the mother shouted at her to come
back, the child continued running. When the mother caught up
with her, she refused to go home. In an attempt to immediately
return home to her five-year-old son, who she had left alone in
the apartment, the mother pulled her daughter by the arms,
attempted to drag her home, and pulled her hair. Under the
circumstances presented, the mother’s use of force did not
constitute excessive corporal punishment (see Nicholson v
Scoppetta, 3 NY3d 357, 369 [2004]; Matter of Peter G., 6 AD3d
201, 204-206 [1st Dept 2004], appeal dismissed 3 NY3d 655
[2004]). Moreover, the medical records and the caseworker’s
observations show that the daughter’s injuries were minor (see
Matter of Dontay B. [Octavia F.], 81 AD3d 539 [1st Dept 2011]).
Furthermore, the mother did not neglect her son by leaving
him unsupervised in the apartment when she ran after her
daughter. Although not ideal, the mother’s choice to run after
the daughter did not fall below the statutory minimum degree of
care (see Matter of Andy Z. [Hong Lai Z.], 105 AD3d 511 [1st Dept
2013]).

_______________________
CLERK
11779- The People of the State of New York, Ind. 1323/14

11779A- Respondent, 2548/16
11779B 3834/16
-against-
Ruben Rodriguez,
_________________________
Robert S. Dean, Center for Appellate Litigation, New York (Scott

H. Henney of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Emily Anne Aldridge of

_________________________
Judgment, Supreme Court, Bronx County (Alvin M. Yearwood,
J.), rendered April 13, 2017, convicting defendant, after a jury
trial, of murder in the second degree, and sentencing him to a
term of 25 years to life, and judgments (same court and Justice),
rendered May 11, 2017, convicting defendant, upon his pleas of
guilty, of two counts of assault in the second degree, and
sentencing him to a term of three years, to run consecutively to
his murder sentence, and a term of five years, to run
concurrently with his murder sentence, unanimously affirmed.
The verdict was not against the weight of the evidence. (see
People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no
basis for disturbing the jury’s credibility determinations
concerning identification and credibility. Furthermore,
defendant was circumstantially linked to the crime by
surveillance video.
The court’s Sandoval ruling, authorizing cross-examination

as to defendant’s recent guilty plea to criminal possession of a
weapon in the second degree, was a provident exercise of
discretion. That conviction was probative of defendant’s
credibility, and it was not unduly prejudicial (see People v
Sims, 47 AD3d 494 [1st Dept 2008], lv denied 10 NY3d 844 [2008];
People v Deale, 26 AD3d 175 [1st Dept 2006], lv denied 6 NY3d
893 [2006]).
Defendant’s challenge to the criteria employed by the court
in imposing sentence is a claim requiring preservation (see
People v Harrison, 82 NY2d 693 [1993]; see also People v Samms,
95 NY2d 52, 58 [2000]), and we decline to review this unpreserved
claim in the interest of justice. As an alternative holding, we
find that the comments of the court on which defendant relies did
not reflect either actual or apparent bias.
We perceive no basis for reducing defendant’s sentences.

_______________________
CLERK
11780 In re Elizabeth Wages, etc., Index 101186/16

Petitioner-Appellant,
-against-
State of New York State Division of Housing

and Community Renewal,
Respondent-Respondent.
_________________________
Robert A. Katz, New York, for appellant.
Mark F. Palomino, New York (Lauren K. Lipnick of counsel), for

respondent.
_________________________
Judgment, Supreme Court, New York County (Lucy Billings,
J.), entered March 14, 2018, denying the petition to annul a
determination of respondent (DHCR), dated May 27, 2016, which
denied the petition for administrative review (PAR) of an order
of the Rent Administrator (RA) granting a rent increase based on
major capital improvements (MCI) to the owner’s building, and
dismissing the proceeding brought pursuant to CPLR article 78,
The court correctly concluded that DHCR’s grant of the
owner’s MCI application based on new carpeting throughout the
building has a rational basis in the record and is not arbitrary
and capricious (see generally Matter of 900 W. End Ave. Tenants
Assn. v New York State Div. of Hous. & Community Renewal, 53 AD3d
436, 438 [1st Dept 2008]; Matter of West Vil. Assoc. v Division
of Hous. & Community Renewal, 277 AD2d 111, 112 [1st Dept 2000]).
Petitioner did not claim in the verified petition that the

application for the carpet installation failed to satisfy any of
the criteria set forth in 9 NYCRR 2522.4(a)(2)(i). DHCR also
rationally concluded that the owner’s misstatement in the
application concerning the age of the replaced carpet did not
warrant a denial of the application in this case.
The court properly declined to consider petitioner’s
remaining arguments. Petitioner did not claim in the verified
petition that carpeting cannot qualify as an MCI, and improperly
raised that issue in reply (see Matter of McClave v Port Auth. of
N.Y. & N.J., 134 AD3d 435, 436 [1st Dept 2015]). Petitioner did
not argue before either the RA or in the PAR that the MCI
application should have been denied because the owner did not
obtain a waiver of the useful life requirement as set forth in 9
NYCRR 2522.4(a)(2)(i)(d)-(e) (see Matter of Basnight v New York
City Hous. Auth., 132 AD3d 549, 550 [1st Dept 2015]). Petitioner
did not argue before the RA that the MCI application should have
been denied because of the owner’s alleged history of misconduct
and because the owner allegedly caused damage to the previous
carpeting, and did not establish why it could not have done so
(see 9 NYCRR 2529.6; Matter of Croes Nest Realty, LP v New York
State Div. of Hous. & Community Renewal, 92 AD3d 402, 403 [1st
Dept 2012]; Matter of Chelsea Inn Corp. v New York State Div. of
Hous. & Community Renewal, 306 AD2d 16 [1st Dept 2003]).
We have considered petitioner’s remaining arguments and find
them unavailing.

_______________________
CLERK

Respondent,
-against-
Daquan Collins,
_________________________
Janet E. Sabel, The Legal Aid Society, New York (Rachel L. Pecker
of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Philip V. Tisne

of counsel), for respondent.
_________________________
Judgment, Supreme Court, New York County (Thomas Farber,
J.), rendered June 21, 2016, convicting defendant, upon his plea
of guilty, of criminal possession of a weapon in the third degree
and criminal possession of a firearm, and sentencing him to 5
years’ probation, unanimously reversed, on the law, defendant’s
suppression motion granted, and the indictment dismissed.
“Police pursuit is regarded as significantly impeding a
person’s freedom of movement, thus requiring justification by
reasonable suspicion that a crime has been, is being, or is about
to be committed” (People v Thornton, 238 AD2d 33, 36 [1st Dept
1998]). By contrast, “mere surveillance need not be justified by
reasonable suspicion” (id.).
Although the police actions began as permissible
observation, while following defendant slowly in their car
without turning on their lights or sirens (see People v Quentin
F., 177 AD3d 439 [1st Dept 2019]; Thornton, 238 AD2d at 36;
Matter of Jaime G., 208 AD2d 382 [1st Dept 1994]), observation
gave way to pursuit when the officers turned on their lights and
sirens to cross the street against traffic and pull up ahead of
defendant. Even crediting one of the officer’s testimony that
his intent was to get a better view and alert oncoming traffic,
not to cut off, block, or alarm defendant, the objective impact
of this maneuver was “intimidating” and communicated “an attempt
to capture or . . . intrude upon [defendant’s] freedom of
movement” (Michigan v Chesternut, 486 US 567, 575 [1988]).
Because it is undisputed that the circumstances before this
police activity were not sufficient to create reasonable
suspicion, it was unlawful and could not be validated by any
subsequently acquired suspicion (see People v William II, 98 NY2d
93, 98 [2002]). When defendant discarded a handgun during the
course of the illegal pursuit, he did not voluntarily abandon it
and it should have been suppressed (see People v Bilal, 170 AD3d
83, 93-95 [1st Dept 2019], appeal dismissed 34 NY3d 1085 [2020]).

_______________________
CLERK
11782- Index 154507/18

11783-
11784-
11785-
11786 342 East 50th Street LLC,
-against-
Deborah Privitello,
_________________________
Thomas S. Fleishell & Associates, P.C., New York (Thomas S.

Fleishell of counsel), for appellant.
Dichter Law LLC, Mount Kisco (Joel R. Dichter of counsel), for

respondent.
_________________________
Order, Supreme Court, New York County (Melissa Crane, J.),
entered March 19, 2019, which granted defendant’s motion to
vacate her default and dismiss the complaint (Motion Seq. No.
002), unanimously affirmed, without costs; order, same court and
Justice, entered March 19, 2019, which denied plaintiff’s motion
for contempt and granted defendant’s cross motion for damages
(Motion Seq. No. 003), unanimously modified, on the law, to
vacate the award of damages, and otherwise affirmed, without
costs; order and judgment (one paper), same court and Justice,
entered June 18, 2019, awarding defendant damages in the amount
of $118,712, unanimously reversed, on the law, without costs, and
the judgment vacated, and appeals from orders, same court and
Justice, entered April 1, 2019 and June 18, 2019 (Motion Seq.
Nos. 001 and 005), determining that no trial on damages was

necessary, unanimously dismissed, without costs, as moot in light
of the above determinations.
The trial court correctly determined that service of process
was improper and dismissed the complaint, as there was no showing
by plaintiff of impracticability, as required by CPLR 308(5).
The selected method of service at the subject premises was not
reasonably calculated to provide defendant with notice of this
action, given, inter alia, the vacate order then in effect (see
Mullane v Central Hanover Trust & Co., 339 US 306, 314 [1950];
Bossuk v Steinberg, 58 NY2d 916, 919 [1983]). Given the
dismissal, plaintiff’s motion for contempt was properly denied.
The trial court, however, improvidently awarded a monetary
judgment in favor of defendant, where no answer was filed
asserting a counterclaim and the court had dismissed the
complaint (see Pallotta v Perry, 2002 WL 1798804 [App Term, 9th &
10th Jud Dist 2002]; 4117 15th Ave. Realty Corp. v Hornedo, 184
Misc 2d 986 [App Term 2d Dept 2000]).
We have considered the remaining arguments and find them
unavailing.

_______________________
CLERK

Respondent, 1432/15
-against-
Jermaine Williams,
_________________________
Christina A. Swarns, Office of The Appellate Defender, New York

(Dana B. Wolfe and Stephen Chu of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael D.

Tarbutton of counsel), for respondent.
_________________________

appellant from a judgment of the Supreme Court, New York County
(Neil Ross, J.), rendered October 24, 2016,



_______________________
CLERK

11789- Index 650440/2018

11789A Matthew Feldmann,
Plaintiff-Respondent,
-against-
Scepter Group, Pte. Ltd., et al.,

Defendants-Appellants.
_________________________
Lewis Brisbois Bisgaard & Smith LLP, New York (Peter T. Shapiro
of counsel), for appellants.
Kraus & Zuchlewski LLP, New York (George B. Schwab of counsel),

for respondent.
_________________________
Judgment, Supreme Court, New York County (Melissa A. Crane,
J.), entered October 2, 2019, awarding plaintiff the total amount
of $465,186.81, unanimously modified, on the law and the facts,
to vacate so much of the judgment as held defendant Withanage
personally liable, and the matter remanded for a determination as
to his personal liability, and otherwise affirmed, without costs.
Appeal from order, same court and Justice, entered or about
February 7, 2019, which granted plaintiffs’ motion for summary
judgment and denied defendants’ cross-motion for summary
judgment, unanimously dismissed, without costs, as subsumed in
the appeal from the judgment.
Plaintiff and defendants signed a settlement agreement that
provided for defendants to make five monthly installment payments
to plaintiff. After defendants only made one payment, plaintiff
commenced this action and moved for summary judgment.
A material breach is a failure to do something that is so

fundamental to a contract that the failure to perform that
obligation defeats the essential purpose of the contract (O & G
Indus., Inc. v National R.R. Passenger Corp., 537 F3d 153, 163
[2d Cir 2008], cert denied 556 US 1182 [2009] [internal quotation
marks and bracket omitted]). A breach is material if it strongly
tend[s] to defeat the object of the parties in making the
contract (Babylon Assoc. v County of Suffolk, 101 AD2d 207, 215
[2d Dept 1984] [internal quotation marks omitted]). Here,
defendants breached the explicit terms of the agreement by
missing the installment payments. Defendants’ argument that the
agreement’s provision of a 14% interest penalty in the event a
payment was not timely made precludes a finding of breach, and
that instead, defendants were entitled to pay at an undisclosed
later date, is unavailing, as it would simply permit defendants
to never pay.
Because defendants materially breached the provisions of the
contract, plaintiff was entitled to liquidated damages, as
provided for in paragraph seven of the agreement. Moreover, the
agreements’ confidentiality clause provided that a nonbreaching
party was entitled to disclose the agreement in order to bring a
cause of action for breach. Furthermore, defendants’ breach
released plaintiff from his contractual obligations, including
abiding by the confidentiality clause (see Old Town Woolen Co.,
Inc. v Fishman & Son, Inc., 218 App Div 472, 474 [1st Dept
1926]).
The court, however, should not have granted plaintiff’s
motion as it pertained to defendant Withanage’s personal
liability. The record contains questions as to whether Withanage
intended to be personally bound (see Paribas Props. v Benson, 146
AD2d 522, 525 [1st Dept 1989]).

_______________________
CLERK
11790N U.S. Bank National Association, Index 32573/16E

Successor Trustee to Bank of America,
N.A., etc.,
-against-
Shakira Hattim,
Defendant-Appellant,
New York City Environmental Control Board,

et al.,
Defendants.
_________________________
Michael Kennedy Karlson, New York, for appellant.
McCalla Raymer Leibert Pierce, LLC, New York (Jane H. Torcia of

_________________________
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.),
entered on or about July 12, 2019, which denied defendant’s
motion to vacate an order entered upon her default, unanimously
affirmed, without costs.
The court providently exercised its discretion in denying
defendant’s motion to vacate her default (see Berardo v Guillet,
86 AD3d 459 [1st Dept 2011]). After failing to oppose
plaintiff’s motion for summary judgment on its mortgage
foreclosure complaint and its subsequent motion for the entry of
a judgment of foreclosure and sale, defendant moved to vacate the
judgment and the underlying order. She then failed to appear for
oral argument on her motion to vacate, and the motion was denied.
Defendant now appeals from the denial of her motion to vacate the
order that denied her first motion to vacate. In support of this

motion, defendant failed to demonstrate any excuse, let alone a
reasonable excuse, for her failure to contest the dispositive
motions. In the absence of a reasonable excuse, we need not
consider whether defendant demonstrated a meritorious defense.

_______________________
CLERK
11791N & In re Robert Giardina, Index 156209/19

M-1647 et al.,
Petitioners-Appellants,
-against-
Letitia James, Attorney General of the

State of New York,
Respondent-Respondent.
_________________________
Hodgson Russ LLP, Buffalo (Jeffrey C. Stravino of counsel), for

appellants.
Letitia James, Attorney General, New York (Ari J. Savitzky of

_________________________
Order, Supreme Court, New York County (Lynn R. Kotler, J.),
entered November 1, 2019, which denied the petition to quash
subpoenas duces tecum issued by respondent, and granted
respondent’s motion to dismiss the petition and compel
compliance, unanimously affirmed, without costs.
Respondent was authorized to issue subpoenas in connection
with an investigation into complaints and allegations that
petitioners’ employer engaged in fraudulent practices in its
merchant cash advance business (see Executive Law § 63[12];
Matter of American Dental Coop. v Attorney General of State of
N.Y., 127 AD2d 274, 280 [1st Dept 1987]). The information sought
“bears a reasonable relationship to the subject matter under
investigation and the public interest to be served” (id.).
Neither petitioners’ vague claims of criminal investigations, nor
the civil actions pending against their employer warrant a stay

of the subpoenas (see Sayre v Hoey, 113 AD3d 482 [1st Dept 2014];
New York State Commn. on Govt. Integrity v Congel, 156 AD2d 274,
280 [1st Dept 1989], appeal dismissed 75 NY2d 836 [1990]).
M-1647 - Giardina, et al. v James
Motion to relieve counsel, denied with leave to renew.

_______________________
CLERK
11792 & In re Keith Drew, Ind. 2510/18

M-1647 Petitioner,
-against-
Hon. Juan Merchan,

Respondent.
_________________________
Keith Drew, petitioner pro se.
Letitia James, Attorney General, New York (Charles F. Sanders of

_________________________
The above-named petitioner having presented an application

to this Court praying for an order, pursuant to article 78 of the
Civil Practice Law and Rules for a writ of mandamus to vacate an
order, Supreme Court, New York County (Juan Merchan, J.), entered
on or about August 19, 2019 terminating petitioner’s
participation in a judicial diversion program, and reinstating
his plea agreement,
Now, upon reading and filing the papers in said proceeding,

and due deliberation having been had thereon,
It is unanimously ordered that the application be and the

same hereby is denied and the petition dismissed, without costs
or disbursements.

_______________________
CLERK
Friedman, J.P., Manzanet-Daniels, Gesmer, González, JJ.

Respondent,
-against-
Dionny Joaquin,
_________________________

Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of

_________________________
Judgment, Supreme Court, Bronx County (Diane R. Kiesel, J.),
rendered June 14, 2017, convicting defendant, after a jury trial,
of petit larceny, and sentencing him to a term of one year,
unanimously affirmed.
The court properly denied defendant’s suppression motion.
The evidence adduced at the hearing sufficiently established that
even if the victim’s spontaneous identification of defendant
could be categorized as a police-arranged identification
procedure, that procedure was not unduly suggestive (see People v
Duuvon, 77 NY2d 541, 545-546 [1991]).
The verdict was not against the weight of the evidence (see
People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no
basis for disturbing the jury’s credibility determinations. The
evidence supports the conclusion that defendant intentionally
deprived the victim of his property, rather than merely
attempting to do so.
_______________________
CLERK
Richter, J.P., Oing, Singh, Moulton, JJ.
11488 In re Miracle Seven H. and Another, Dkt. NN-2652-53/17
Children Under Eighteen Years

of Age, etc.,
Serrice H.,
Administration for Children Services,

_________________________
Larry S. Bachner, New York, for appellant.
James E. Johnson, Corporation Counsel, New York (Elina Druker of

Dawne A. Mitchell, The Legal Aid Society, New York (Raymond E.

Rogers of counsel), attorney for the children.
_________________________
Order, Family Court, New York County (Jonathan Shim, J.),
rendered on or about August 8, 2018, unanimously affirmed,
without costs or disbursements.
Application by appellant’s assigned counsel to withdraw is
granted (see Matter of Louise Wise Servs. [Whyte], 131 AD2d 306
[1987]). We have reviewed this record and agree with appellant's

assigned counsel that there are no nonfrivolous points that could
be raised on this appeal.

_______________________
CLERK
Richter, J.P., Oing, Singh, Moulton, JJ.
11500- In re Claudia B., Dkt. P-09495/17

11500A Petitioner-Respondent,
-against-
Darrin M.,
_________________________
Law Office of Brian Esser PLLC, Brooklyn (Brian K. Esser of

Andrew J. Baer, New York, for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim

Nothenberg of counsel), attorney for child.
_________________________
Order, Family Court, New York County (Adetokunbo O. Fasanya,
J.), entered on or about February 15, 2018, which denied
respondent’s motion to dismiss petitioner’s paternity petition on
equitable estoppel grounds and ordered him to submit to DNA
testing, unanimously affirmed, without costs. Order of
filiation, same court and Justice, entered on or about May 24,
2018, which declared respondent the biological father of the
subject child, unanimously affirmed, without costs.
Petitioner filed this paternity petition against respondent
seeking to have him declared the father of her child. The
pertinent facts as alleged by respondent establish the following.
Petitioner and respondent were in a relationship from July to
October 2008. After the relationship ended, petitioner asked
respondent to donate sperm so that she could conceive a child,
and he agreed. In October 2009, petitioner sent respondent a

draft written agreement which stated that respondent would have
no parental rights or responsibilities as to the child and would
not be named as the father on the birth certificate, and that
petitioner would not seek child support from respondent. It
further provided that respondent would be paid a total of $5,000
for 10 vials of semen. Petitioner sent respondent another draft
dated December 15, 2009 that was largely unchanged from the
October version. In between the two agreements, an email
exchange between the parties shows that they were still
negotiating terms, and that petitioner intended to “legalize” the
document with a notary and witness. Although both of the draft
agreements contemplated that they be “executed” by the parties,
it is undisputed that neither one was signed.
On December 21, 2009, despite the absence of a final
agreement, respondent donated 17 vials of semen to a fertility
center. On or about December 28, 2009, petitioner sent
respondent another draft agreement that, unlike the prior drafts,
provided that his name would appear on the child’s birth
certificate. Respondent contends that the latest draft was not
acceptable to him because he only intended to be a donor and not
a parent. In a subsequent email, respondent lamented that
petitioner was changing the agreement, and expressed the need for
a “legitimate contract.”
Respondent contends that he stopped participating in the
endeavor, but took no further actions because he was purportedly

told by the fertility center that petitioner could not use his
semen samples. According to respondent, he learned in the summer
of 2012 that petitioner had become pregnant with his sperm. In
March 2013, petitioner gave birth to a child. Respondent
contends that he has not seen petitioner since he donated the
sperm in December 2009, and that he has never met or spoken to
the child.
In April 2017, petitioner filed a paternity petition seeking
to have respondent declared the father of her child. Respondent
argued that petitioner was equitably estopped from bringing the
paternity claim because the parties intended that he be a sperm
donor only, without any legal rights or obligations to the child.
After briefing from the parties and the attorney appointed for
the child, the motion court issued a decision finding that
respondent’s estoppel claim was inconsistent with New York law,
and directing that he submit to DNA testing. After testing
revealed respondent to be the father of the child, the court
entered an order of filiation.
On appeal, respondent maintains that petitioner should be
equitably estopped from seeking to have him declared the father
of the subject child. We need not decide whether, under New York
law, estoppel is available to foreclose a mother from asserting
paternity as to a known sperm donor, because even if it were,
respondent’s claim would fail. To prevail on estoppel grounds,
the moving party bears the burden of proving, by clear and

convincing evidence, a right to the relief sought (see Matter of
Department of Social Servs. v Donald A.C., 179 AD3d 603 [1st Dept
2020]). Even if we assume the truth of respondent’s factual
assertions, he failed to meet his burden.1
Respondent’s estoppel claim rests on the premise that the
parties had a binding preconception agreement. Contrary to
respondent’s contention, there was no binding enforceable oral or
written agreement between the parties, either before or after
respondent donated his sperm. There is no dispute that a signed
contract does not exist. Nor was any final oral agreement
reached. Indeed, respondent’s own affidavit and exhibits show
that at the time he provided his semen samples, the parties were
continuing to negotiate terms, and that he knew that there was no
finalized agreement in place. Further, a week after he donated
his sperm, he acknowledged that there was still no “legitimate
contract” between him and petitioner concerning his status.
Moreover, the draft agreement that he received after the sperm
donation differed from the earlier versions on the critical issue
of his recognition as a father. Under the facts presented here,
we reject respondent’s claim that certain alleged fraudulent
conduct on petitioner’s part after the sperm donation is
sufficient to warrant the invocation of equitable estoppel.
Respondent’s reliance on Matter of Joseph O. v Danielle B.
1
Petitioner presents a different view of some of the
critical facts.
(158 AD3d 767 [2d Dept 2018]) and Matter of Christopher YY. v
Jessica ZZ. (159 AD3d 18 [3d Dept 2018], lv denied 31 NY3d 909
[2018]) is misplaced. These cases involved preconception
agreements with reciprocal waivers of paternity and child support
claims between a same-sex married female couple, on the one hand,
and a known sperm donor on the other. The courts in those cases
applied equitable estoppel to thwart the donor’s paternity claims
because they threatened to harm the parent/child bonds that had
developed (see Christopher YY., 159 AD3d at 32), a fact pattern
not presented here. Neither case supports respondent’s claim
that an unsigned, nonfinal preconception agreement can be used to
equitably estop a mother from asserting paternity as to a known
sperm donor. Accordingly, we need not decide whether the motion
court was correct in concluding that even if there had been a
meeting of the minds, equitable estoppel could not be invoked by
a known sperm donor under the circumstances here (see e.g.
Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1 [2010]; see
also Ferguson v McKiernan, 596 Pa 78, 940 A2d 1236 [2007]).
Respondent did not request a hearing during the proceedings
before the motion court, and even were we to address his
unpreserved argument that the court erred by not granting him
one, we would reject it. Respondent does not explain what
information he would have elicited on petitioner’s cross-
examination that would have buttressed his estoppel claim.
Although respondent asserts that a hearing was necessary given

the documentary evidence of a meeting of the minds regarding his
status as a mere donor, respondent’s own submissions show, to the
contrary, that no such meeting was reached.

_______________________
CLERK
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.

Respondent,
-against-
Fomdo Drame,
_________________________
Michael D. Horn, Astoria, for appellant.
Blank Rome LLP, New York (Timothy W. Salter of counsel), for

respondent.
_________________________
Judgment, Supreme Court, New York County (A. Kirke Bartley,
Jr., J.), rendered March 15, 2018, convicting defendant, after a
jury trial, of rape in the first degree and sexual assault in the
first degree and sentencing him to an aggregate term of 15 years,
Defendant’s challenges to the People’s summation are
unpreserved and we decline to review them in the interest of
justice. As an alternative holding, we find that the challenged
remarks generally constituted fair comments on the evidence along
with reasonable inferences to be drawn therefrom. These comments
were responsive to defense arguments, and the summation did not
shift the burden of proof or deprive defendant of a fair trial
(see People v Overlee, 236 AD2d 133 [1st Dept 1997], lv denied 91
NY2d 976 [1998]; People v D’Alessandro, 184 AD2d 114, 118-120
[1st Dept 1992], lv denied 81 NY2d 884 [1993]).
Defendant’s ineffective assistance of counsel claims based
on his trial counsel’s failure to object to the challenged

portions of the prosecutor’s summation are unreviewable on direct
appeal because they involve matters outside the record concerning
possible strategic explanations for not objecting (see e.g.
People v Rios, 139 AD3d 620 [1st Dept 2016], lv denied 28 NY3d
973 [2016]; People v Almonte, 90 AD3d 579, 580 [1st Dept 2011] lv
denied 19 NY3d 956 [2012]). Accordingly, since defendant has not
made a CPL 440.10 motion, the merits of the ineffectiveness
claims may not be addressed on appeal. In the alternative, to
the extent the existing record permits review, we find that
defendant received effective assistance under the state and
federal standards (see People v Benevento, 91 NY2d 708, 713-714
[1998]; Strickland v Washington, 466 US 668 [1984]). Defendant
has not shown that the absence of objections fell below an

objective standard of reasonableness, or that they deprived
defendant of a fair trial or affected the outcome of the case.

_______________________
CLERK
11795 Marie Saez, et al., Index 112424/10

Plaintiffs-Appellants,
-against-
Sapir Realty Management Corp., et al.,

Defendants-Respondents,
Consolidated Edison of New York, Inc.,

Defendant.
_________________________
Sciretta & Venterina, LLP, Staten Island (Antonia Sciretta of

counsel), for appellants.
Carol R. Finocchio, New York, for respondents.

_________________________
Order, Supreme Court, New York County (David B. Cohen, J.),
entered September 18, 2018, which granted defendants Sapir Realty
Management Corp., 11 Madison Avenue, LLC, and 11 Madison Avenue
Member LLC’s (collectively 11 Madison defendants) motion for
summary judgment dismissing the complaint as against them,
unanimously reversed, on the law, without costs, and the motion
denied.
The record does not demonstrate conclusively that the owner
of the sidewalk vault grate on which plaintiff Marie Saez
allegedly tripped was defendant Con Ed, rather than the 11
Madison defendants, who owned the property abutting the sidewalk
where the grate was located. There is an affidavit by the
president of defendant Sapir Realty Management Corp. averring
that the grates were already installed when the 11 Madison
defendants acquired the property in 2003 and that the 11 Madison

defendants had never been advised by Con Ed that they had any
responsibility for maintaining the grates over Con Ed’s utility
vaults or presented with any plans concerning the grates. There
is also evidence that the 11 Madison defendants’ predecessor in
interest had purchased and installed the non-standard vault
gratings, and there is a note on the plot plan for the vault
construction stating that this entity was to “supply, install and
maintain” the non-standard gratings it had requested. As issues
of fact exist whether Con Ed or the 11 Madison defendants owned
the gratings, it cannot be concluded that Con Ed was responsible
for maintaining the gratings and the area around them in safe
condition (see 34 RCNY 2-07[b]; Jones v 3417 Broadway LLC, 172
AD3d 551 [1st Dept 2019]; Storper v Kobe Club, 76 AD3d 426 [1st
Dept 2010]; Administrative Code of City of NY § 7-210).
Issues of fact also exist as to whether the 11 Madison
defendants’ predecessor’s installation of the non-standard vault
grates constitutes a special use of the sidewalk by these
defendants. Although there is evidence that they had no access
to the grates and the vault, the evidence is not conclusive.
Moreover, there is evidence that the transformers in the vaults
provided electrical service solely to their property (see
generally Karr v City of New York, 161 AD2d 449 [1st Dept 1990];
Sheehy v City of New York, 43 AD3d 336 [1st Dept 2007]).


_______________________
CLERK
11796 In re Yasmin A., Dkt. V-43149-15/16A

-against-
Patricia S.,
_________________________
Bruce A. Young, New York, for appellant.
Andrew J. Baer, New York, for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim

Nothenberg of counsel), attorney for the child.
_________________________
Appeal from order, Family Court, New York County (Machelle
Sweeting, J.), entered on or about July 19, 2017, which, upon
respondent mother’s default, granted the grandmother’s petition
for modification of a 2016 order of custody and visitation,
granted the grandmother sole decision-making authority with
respect to the subject child, and awarded the mother daytime
visits on alternate Saturdays, unanimously dismissed, without
costs, as taken from a nonappealable paper.
The appeal is dismissed because the mother failed to appear
at two consecutive court appearances, her counsel had no excuse
for her absence, and thereafter declined to participate. The

mother never moved to vacate her default (see CPLR 5511; Matter
of Michael B.M. v Gnama I., 118 AD3d 619 [1st Dept 2014]).

_______________________
CLERK
11797 & Index 350031/15

M-1182 E. B.-W., an infant by her mother
and natural guardian Dominique Bou,
et al.,
-against-
New York City Housing Authority,

_________________________
Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for
appellant.
Greenberg & Stein, New York (Ian Asch of counsel), for

respondents.
_________________________
Order, Supreme Court, Bronx County (Llinet M. Rosado, J.),
entered on or about July 18, 2019, which, to the extent appealed
from, denied defendant’s motion for summary judgment dismissing
the complaint insofar as predicated on its alleged violation of
Administrative Code of City of NY § 27-809, unanimously affirmed,
without costs.
Defendant failed to establish prima facie that
Administrative Code § 27-809 did not apply to the building in
which infant plaintiff’s accident occurred. Defendant’s Director
for Capital Projects Administration failed to explain how he
arrived at his conclusion, or to submit documentation in support
thereof, that the building does not fall within an exception to
the Code's grandfathering rule, namely where alterations made to
the building cost at least thirty percent of the building’s value
(Administrative Code §§ 27-115, 27-116). Moreover, he compared

“the value of each unit at the time the alterations were
performed [with the] average cost of work per unit,” and
therefore did not establish whether “the cost of making
alterations” equaled or exceeded thirty percent of “the value of
the building,” which is the standard set by the statute
(Administrative Code §§ 27-115, 27-116; see Zabawa v Sky Mgt.
Corp., 183 AD3d 430, 431 [1st Dept 2020]; White v New York City
Hous. Auth., 139 AD3d 579 [1st Dept 2016]; but see Ebron v New
York City Hous. Auth., 177 AD3d 530 [1st Dept 2019]). To the
extent Ebron can be construed as supporting a contrary position,
we clarify that White is and has been the rule regarding
defendant’s burden on a prima facie case. Since defendant failed
to meet its initial burden, the motion must be denied without
regard to the sufficiency of plaintiffs’ papers in opposition
(see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,
853 [1984]).
Defendant also failed to establish prima facie that, even if
Administrative Code § 27-809 applied to the subject building, it
did not violate the ordinance because the pipe did not need to be
insulated, since it “carrie[d] a fluid not exceeding two hundred
fifty degrees Fahrenheit and insulation would [have] interfere[d]
with the functioning of the system.” The affidavits of
defendant’s engineer submitted on this issue were notarized
without the state and not accompanied by the requisite
certificate of conformity, and “the technical defect was not

corrected, despite plaintiff[s’] timely objection in opposition
to defendant[’s] motion” (Attilio v Torres, 181 AD3d 460, 461
[1st Dept 2020]; see CPLR 2309[c]). Were we to disregard the
technical nonconformity and consider the affidavits, as the
motion court did (see e.g. Wager v Rao, 178 AD3d 434, 435 [1st
Dept 2019]), they still failed to meet defendant’s prima facie
burden because they merely averred, in conclusory fashion, that
insulating the pipe on which the infant plaintiff was burned
would have interfered with the functionality of the heating
system (see Zabawa, 183 AD3d at 431).
The parties’ remaining arguments concerning so much of the
order as granted defendant’s motion for summary judgment
dismissing the complaint insofar as predicated on its violation
of a common-law duty are not properly before us. Plaintiff did
not appeal from that portion of the order despite being aggrieved
thereby (see e.g. Solomon v Pepsi-Cola Bottling Co. of N.Y.,
Inc., 136 AD3d 469 [1st Dept 2016]).
M-1182 - E. B.-W. v New York City Housing Authority
Motion for stay, denied as moot.

_______________________
CLERK
11798 Property Clerk, New York City Index 450320/18

Police Department,
-against-
Anthony Nurse,
_________________________
Zachary W. Carter, Corporation Counsel, New York (Tahirih M.

Sadrieh of counsel), for appellant.
_________________________
Order, Supreme Court, New York County (Martin Shulman, J.),
entered July 13, 2018, which denied plaintiff’s motion for
summary judgment on his civil forfeiture action and sua sponte
dismissed the complaint, unanimously modified, on the law, to
vacate the dismissal, and otherwise affirmed, without costs, and
the matter is remanded for further proceedings in accordance
herewith.
Defendant was arrested and his vehicle impounded following a
traffic stop in which an unlicensed firearm was found beneath the
driver’s seat of the vehicle. Defendant subsequently pleaded
guilty to criminal possession of a firearm, and was sentenced to
five years of probation. Some time before this civil forfeiture
action was commenced, defendant challenged NYPD’s continued
possession of his vehicle, and NYPD brought an administrative
proceeding, pursuant to Krimstock v Kelly (306 F3d 40 [2d Cir
2002], cert denied 539 US 969 [2003]), to determine whether it
had the right to retain defendant’s vehicle pending the outcome

of the anticipated civil forfeiture action. The hearing resulted
in a finding that NYPD had established probable cause for the
arrest and a likelihood that it would prevail in a civil
forfeiture action, but had not established that continued
impoundment was necessary to address a heightened public safety
risk.
Contrary to the motion court’s ruling, the determination
made at the Krimstock hearing that the defendant’s retention of
his vehicle pending determination of a forfeiture action does not
pose a heightened risk to public safety does not preclude this
action (see generally Buechel v Bain, 97 NY2d 295, 303 [2001],
cert denied 535 US 1096 [2002]). The issue in this action is
whether the vehicle is actually subject to forfeiture under
Administrative Code § 14-140, i.e., whether defendant used it as
a means of committing the crime of criminal possession of a
firearm (Matter of Property Clerk of N.Y. City Police Dept. v
Ferris, 77 NY2d 428, 430-431 [1991]). Accordingly, the action
should not have been dismissed. However, we affirm the denial of
plaintiff’s motion for summary judgment.
Plaintiff established by a preponderance of the evidence
that defendant, the registered and titled owner of the vehicle,
who pleaded guilty to criminal possession of a firearm, used the
vehicle as a means of committing the crime of criminal possession
of a firearm (see Ferris, 77 NY2d at 430; Property Clerk, N.Y.
City Police Dept. v Miranda, 2010 NY Slip Op 32496[U], *4-5 [Sup

Ct, NY County 2010]; Property Clerk, N.Y. City Police Dept. v
Bongiovanni, 2013 NY Slip Op 30219[U], *5-6 [Sup Ct, NY County
2013]).
In opposition, defendant, acting pro se, submitted an
affidavit and supporting evidence in support of his argument that
forfeiture of the vehicle, which he needed for getting to work
with his tools and picking up his children from school, would
impose an excessive and tremendous hardship on him and his
family, particularly given that this is his sole criminal
offense, and in light of other mitigating facts. This evidence
is sufficient to raise an issue of fact as to whether, under all
the factual circumstances, civil forfeiture of the vehicle would
be grossly disproportionate to the offense and therefore a
constitutionally impermissible excessive fine (see County of
Nassau v Canavan, 1 NY3d 134, 140 [2003]; Malafi v A 1967
Chevrolet, Vin No. 135177G120642, Zachary G. Moisan, 63 AD3d 1112
[2d Dept 2009]; see Timbs v Indiana, __US__, 139 S Ct 682
[2019]). Accordingly, the matter is remanded to Supreme Court for
a hearing to determine whether forfeiture would be grossly
disproportionate to defendant’s offense, “consider[ing] such
factors as the seriousness of the offense, the severity of the
harm caused and of the potential harm had the defendant not been
caught, the relative value of the forfeited property and the
maximum punishment to which defendant could have been subject for
the crimes charged, and the economic circumstances of the

defendant” (Canavan, 1 NY3d at 140).

_______________________
CLERK
11799- Ind. 1145/15

11799A The People of the State of New York, 2288/15
Respondent, 4763/15
4914/15
-against-
Ibrahim Doumbouya,
_________________________
Robert S. Dean, Center for Appellate Litigation, New York (Ben A.

Schatz and Shaina R. Watrous of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Kerry Fulham

_________________________
Appeals having been taken to this Court by the above-named

(Mark Dwyer, J.), rendered March 3, 2017, and from a judgment
(same court and Justice), entered October 24, 2019, granting
resentencing.
Said appeals having been argued by counsel for the

respective parties, due deliberation having been had thereon, and
finding the sentence not excessive,
It is unanimously ordered that the judgments so appealed

from be and the same are hereby affirmed.
_______________________
CLERK


Respondent,
-against-
Eddy M.,
_________________________
Robert S. Dean, Center for Appellate Litigation, New York (Molly

Schindler of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Philip V. Tisne

_________________________
Order, Supreme Court, New York County (Thomas A. Farber,
J.), entered on or about October 16, 2018, which adjudicated
defendant a level two sexually violent offender pursuant to the
Sex Offender Registration Act (Correction Law art 6-c),
Clear and convincing evidence supports the court’s
assessment of 30 points under the risk factor for use of violence
(armed with a dangerous instrument). The evidence established
that defendant displayed a knife and told the victim to come to
him, and then proceeded to rape the victim who was afraid that
defendant would stab her. Although defendant was not holding the
knife during the actual rape, the evidence amply supports the
conclusion that defendant used the knife for the purpose of
forcible compulsion in the course of a continuing incident that
included the rape (see People v Parker, 145 AD3d 523, 523 [1st
Dept 2016], lv denied 29 NY3d 908 [2017]).

The court providently exercised its discretion in declining
to grant a downward departure (see generally People v Gillotti,
23 NY3d 841, 861 [2014]). The mitigating factors cited by
defendant were adequately taken into account by the risk
assessment instrument or outweighed by aggravating factors,
including the seriousness of the underlying offense and
defendant’s criminal record.

ENTERED:
_______________________
CLERK
11801 In re Jahsaraha A. S., Dkt. B-20067/18
A Child Under Eighteen

Years of Age, etc.,
Sheldon S.,
Administration for Children’s

Services, et al.,
Petitioners-Respondents.
_________________________
Steven P. Forbes, Jamaica, for appellant.

_________________________
Order, Family Court, Bronx County (Lynn M. Leopold, J.),
entered on or about August 19, 2019, which granted petitioner
Abbott House’s motion for summary judgment and entered a finding
of severe abuse against respondent-appellant Sheldon S., and
terminated his parental rights to the subject child, unanimously
affirmed, without costs.
Application by the father’s assigned counsel to withdraw as
counsel is granted (see Anders v California, 386 US 738 [1967];
People v Saunders, 52 AD2d 833 [1st Dept 1976]). A review of the
record demonstrates that there are no nonfrivolous issues which
can be raised on this appeal. We agree with counsel that
petitioner Abbott House demonstrated that respondent severely
abused the child under Social Services Law § 384-b(8), as he was
convicted of manslaughter in the first degree under Penal Law §
125.20, and the victim was the child’s biological mother.
Accordingly, Family Court properly determined that summary

judgment was warranted (see SSL § 384- b[8][a][iii][A]; Matter of
Alexander H. [Brenda P.-H.], 156 AD3d 561 [1st Dept 2017]).

_______________________
CLERK
11803 ARRIS International PLC, et al., Index 652724/16

-against-
Rovi Corporation,
Defendants-Appellants.
_________________________
Ropes & Gray LLP, New York (C. Thomas Brown of counsel), for
appellants.
Kilpatrick Townsend & Stockton LLP, Atlanta, GA (Joshua H. Lee of

the bar of the State of Georgia, admitted pro hac vice, of
counsel), for respondents.
_________________________
entered October 31, 2019, which granted plaintiffs’ motion for
partial summary judgment as to liability and denied defendants’
motion for summary judgment dismissing the complaint, unanimously
affirmed, with costs.
The parties entered into a patent license agreement for
defendants’ software, used in connection with an “Interactive
Program Guide” (IPG) for accessing cable television programming
and information, which plaintiffs embedded in set-top boxes that
they manufactured and sold to third parties. Plaintiffs contend
that defendants breached the covenant not to sue and the forum
selection clause in the agreement by bringing actions against
them in other jurisdictions.
Sections 2.2 and 2.3 of the agreement provided that
defendants would seek to negotiate directly with “Excluded
Service Providers” and “Third Party Applications,” respectively,

and would not involve plaintiffs in those discussions or in
subsequent enforcement actions so long as plaintiffs did not seek
to indemnify Excluded Services Providers or Third Party
Applications against claims by defendants. Defendants entered
into a license agreement with Comcast, an Excluded Service
Provider. Claiming that Comcast continued to use their patents
after the agreement expired, they brought two patent infringement
actions against Comcast in the United States District Court for
the Eastern District of Texas, naming plaintiffs as defendants in
those actions.
The motion court correctly concluded that, contrary to
defendants’ contention, the covenants contained in sections 2.2
and 2.3 do not expressly limit plaintiffs’ protection to actions
arising from “Authorized IPG[s],” i.e., the IPGs that are the
subject of their license agreement with defendants. Sections 2.2
and 2.3 do not contain such limiting language, and the phrase
“licenses granted hereunder,” on which defendants rely, does not
impose such a limitation. Notably, section 2.3 appears to refer
to software developed not by defendants but by third parties.
Indeed, in view of defendants’ express agreement that they would
negotiate with Excluded Service Providers and third parties
directly and not involve plaintiffs in those negotiations,
sections 2.2 and 2.3 may be reasonably read to provide plaintiffs
with greater, rather than lesser, protection. Moreover, we note
that in the patent enforcement actions, defendants alleged, on

information and belief, that plaintiffs were obligated to
indemnify Comcast, which suggests that they believed that, absent
an indemnification obligation, it was improper to sue plaintiffs
in the enforcement actions.
We reject defendants’ contention that they did not breach
the forum selection clause because the patents that were the
subject of the enforcement actions were not covered by
plaintiffs’ license agreement. We cannot determine from the
record whether the patents at issue were covered by the
agreement. However, defendants argue that plaintiffs were
involved in the enforcement actions because they “manufactured
and imported — pursuant to Comcast’s specifications and
instructions — hardware that was loaded, including by
[plaintiffs], with infringing Comcast software.” As plaintiffs’
right to use defendants’ patented software in their set-top boxes
was defined and limited by the license agreement, we conclude
that the claims asserted in the enforcement actions “are related
to [the] agreement,” as required by section 9.4 thereof.
To the extent defendants argue that plaintiffs may not

recover damages in the form of counsel fees, we note that the
motion court made no determination with regard to damages.
We have considered defendants’ remaining arguments and find
them unavailing.

_______________________
CLERK
11804 The People of the State of New York Ind. 4917/15

Respondent,
-against-
Isa Abdul Karim,

_________________________
Robert S. Dean, Center for Appellate Litigation, New York (Carl

S. Kaplan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O’Shea

_________________________
Judgment, Supreme Court, New York County (Daniel P.
FitzGerald, J.), rendered June 27, 2017, convicting defendant,
after a jury trial, of criminal sale of a controlled substance in
the third degree, and sentencing him to a term of 2½ years,
The court providently exercised its discretion in denying
defendant’s motion for a mistrial, the only remedy requested,
because there were “less drastic means of alleviating whatever
prejudice may have resulted” (People v Young, 48 NY2d 995, 996
[1980]). Although the jury could have reasonably inferred from a
prosecution witness’s unsolicited passing remark that defendant
had been arrested for an unrelated crime while awaiting trial on
the present case, a curative instruction would have alleviated
any prejudice (see People v Santiago, 52 NY2d 865, 866 [1981]).
However, defense counsel did not accept the court’s offer to give
such an instruction (see e.g. People v Melendez, 50 AD3d 485, 485

[1st Dept 2008], lv denied 10 NY3d 961 [2008]), and defendant
therefore should not be heard to complain on appeal about the
lack of any curative actions by the court. In any event, any
error in this regard was harmless in light of the overwhelming
evidence of guilt (see People v Crimmins, 36 NY2d 230 [1975]).

_______________________
CLERK
11805 In re Annette R., Dkt. V-274-17/18A

-against-
Dakiem E. D.,
_________________________
Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of

Cahill Gordon & Reindel LLP, New York (Cyrus N. Bordbar of

Kenneth M. Tuccillo, Hastings on Hudson, attorney for the child.

_________________________
Order, Family Court, New York County (Stephanie Schwartz,
Referee), entered on or about May 23, 2019, which modified a
visitation order to reduce respondent-father’s visitation with
the subject child, unanimously affirmed, without costs.
Although this Court's authority in custody matters is as
broad as that of the trial court, the latter's findings and
determination are accorded great deference on appeal (Victor L. v
Darlene L., 251 AD2d 178 [1st Dept 1998], lv denied 92 NY2d 816
[1998]), since that court had the opportunity to assess the
witnesses' demeanor and credibility (see Eschbach v Eschbach, 56
NY2d 167, 173 [1982]). Here, there is a sound and substantial
basis in the record for the court's determination that the
circumstances had changed sufficiently to modify the original
visitation order (see Skidelsky v Skidelsky, 279 AD2d 356 [1st
Dept 2001]). The record clearly establishes that the father

continued to have difficulty with the child’s asthma medications,
not recognizing or understanding when and how they were to be
employed.
As any modification must be based upon a “totality of the
circumstances,” with the overarching goal of promoting the
child's best interests (see St. Clement v Casale, 29 AD3d 367,
368 [1st Dept 2006]), this conduct by the father justified the
court's modification of the visitation agreement to minimize risk
to the child’s health, by eliminating back-to-back overnight
visitation and requiring that the child was to be in FaceTime
contact with the mother every four hours that the child was with
the father between 7:00 a.m. and 8:00 p.m.

_______________________
CLERK
11806- Index 312334/16

11806A Raphael DeNiro,
-against-
Claudine DeNiro,
_________________________
Mantel McDonough Riso, LLP, New York (Gerard A. Riso of counsel),

for appellant.
Chemtob Moss Forman & Beyda, LLP, New York (Nancy Chemtob of
_________________________
Judgment, Supreme Court, New York County (Laura E. Drager,
J.), entered January 3, 2020, which, to the extent appealed from
as limited by the briefs, determined plaintiff husband’s child
support and maintenance obligations, determined plaintiff
husband’s 14.8% interest in Grenmoor Associates L.P. (Grenmoor)
is his separate property not subject to equitable distribution,
and awarded plaintiff husband 15% of the appreciation of real
property located in East Hampton (Hardscrabble), unanimously
modified, on the law and the facts, to the extent of deleting the
decretal language adjudging plaintiff husband’s entitlement to
15% of the appreciation of Hardscrabble, and remanding the matter
to Supreme Court for entry of an amended judgment in accordance
herewith, and otherwise affirmed, without costs. Appeal from
order, same court and Justice, entered September 13, 2019,
unanimously dismissed, without costs, as subsumed in the appeal
from the judgment.

The court properly determined that plaintiff’s 14.8%
interest in Grenmoor, 9.8% of which was acquired during the
marriage, was a gift from plaintiff’s father, and thus his
separate property (Domestic Relations Law § 236[B][1][d][1]).
The notarized assignments indicating that plaintiff’s father had
sold him the interest, and promissory notes executed by plaintiff
in which he promised to repay his father specified amounts, do
not compel a different result (see M.M. v D.M., 159 AD3d 562, 563
[1st Dept 2018]; Harned v Harned, 185 AD2d 226, 228 [2d Dept
1992], lv denied 80 NY2d 762 [1992]). The court’s conclusion
that the interest constituted a gift was based upon the lack of
correlation between the notes and the value of the asset
transferred and plaintiff’s testimony concerning the transaction.
The court credited plaintiff’s testimony that no money (marital
or otherwise) had ever been exchanged, there was no expectation
that plaintiff would ever repay the notes (one of which was years
overdue) and the documents were for estate planning purposes
only. There is no basis to disturb the court’s credibility
determination (see Winter v Winter, 50 AD3d 431, 432 [1st Dept
2008]).
The court properly determined that Hardscrabble, purchased
by defendant’s father in both his and defendant’s names and
subsequently held in defendant’s father’s family trust, is her
separate property. Defendant is not only the primary beneficiary
of the trust, but has the power to remove and appoint the
trustee, who, in turn, has the “absolute discretion” to terminate
the trust (see Hofmann v Hofmann, 155 AD3d 442 [1st Dept 2017];
Markowitz v Markowitz, 146 AD3d 872, 873-874 [2d Dept 2017]).
However, plaintiff was not entitled to 15% of Hardscrabble’s
appreciation based on occasional payments made toward the upkeep
of the property, which was frequently used by the parties as a
vacation home. Plaintiff failed to demonstrate the nexus between
his contributions and the increase in Hardscrabble’s value (see
Gordon v Anderson, 179 AD3d 402 [1st Dept 2020]).
The court providently exercised its discretion in imputing
income to the parties based on its credibility determinations and
evidence adduced at trial. Contrary to defendant’s contention,
the court could consider access to her father’s vacation homes,
payment of travel and entertainment expenses through work, and
employment at her father’s businesses in imputing income to her
(see Domestic Relations Law § 240[1-b][b][5][iv][A-D];
Nederlander v Nederlander, 102 AD3d 416, 417-418 [1st Dept 2013];
Matter of LoCasto v Chiofolo, 89 AD3d 847, 848 [2d Dept 2011]).
Defendant fails to show that the child support award, based on a
$600,000 income cap, is insufficient to meet the children’s
“actual needs” to live an “appropriate lifestyle” (Matter of
Culhane v Holt, 28 AD3d 251, 252 [1st Dept 2006] [internal
quotation marks omitted]), to warrant remand for further
proceedings. Notably, defendant does not directly address the
court’s finding that her claimed expenses were unsupported by

evidence and not credible.
We have considered defendant’s remaining arguments,
including with respect to the equitable distribution of marital
assets, and find them unavailing.

_______________________
CLERK

Respondent,
-against-
Zoltan Gorocs,
_________________________
Christina A. Swarns, Office of the Appellate Defender, New York

(Gabe Newland of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Eric Del Pozo
_________________________

(Ann Scherzer, J.), rendered July 11, 2018,



_______________________
CLERK


Respondent,
-against-
Albert Girdner,
_________________________
Janet E. Sabel, The Legal Aid Society, New York (Harold V.

Ferguson of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Claire E.

Nielsen of counsel), for respondent.
_________________________
Judgment, Supreme Court, New York County (Felicia A. Mennin,
J.), rendered February 6, 2018, convicting defendant, upon his
plea of guilty, of criminal possession of a controlled substance
in the fourth degree, and sentencing him, as a second felony
offender, to a term of three years’ probation, unanimously
affirmed.
1094 [2016]), which forecloses review of the denial of his
suppression motion. The court’s oral colloquy with defendant,
supplemented by a written waiver, established a knowing,
intelligent, and voluntary appeal waiver (see People v Thomas, 34
NY3d 545, 560, 563 n 5 [2019]). Although the subject of an
appeal waiver came up after defendant had already agreed to plead
guilty, the court conducted a thorough allocution and defendant
had the opportunity to reject the plea if he did not want to

waive his right to appeal.
Regardless of the validity of defendant’s appeal waiver, we
find that the court properly denied defendant’s suppression
motion. There is no basis for disturbing the court’s credibility
determinations.

_______________________
CLERK
11809 Kemper Independence Insurance Index 155881/16

Company,
-against-
Cornerstone Chiropractic, P.C., et al.,

Defendants,
JS Medical, P.C., et al.,

_________________________
Goldberg, Miller & Rubin, P.C., New York (Timothy R. Bishop of

_________________________
Order, Supreme Court, New York County (Barbara Jaffe, J.),
entered December 20, 2018, which denied plaintiff’s motion for
summary judgment declaring that defendants JS Medical, P.C. and
Wert Specialty Orthopedics, P.C. (together, defendants) have no
right to collect no-fault benefits from plaintiff with respect to
the subject accident, and granted defendants’ cross motion for
summary judgment to the extent of dismissing the complaint as
against JS, unanimously reversed, on the law, without costs,
plaintiff’s motion granted and defendants’ motion denied, and it
is declared that defendants have no right to collect said no-
fault benefits.
The claimants’ failure to subscribe and return the
transcripts of their examinations under oath (EUOs) violated a
condition precedent to coverage and warranted denial of the
claims (see Hereford Ins. Co. v Forest Hills Med., P.C., 172 AD3d
567 [1st Dept 2019]). This is so notwithstanding plaintiff’s

failure to present proof of proper delivery of the denials (see
Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82
AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).
Plaintiff is entitled to summary judgment on the additional
ground that defendants failed to appear at two scheduled EUOs
(see Hertz Vehs. LLC v Significant Care, PT, P.C., 157 AD3d 600
[1st Dept 2018]; Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468
[1st Dept 2016], appeal withdrawn 29 NY3d 995 [2017]).
Considering the brevity of the delay and JS’s ultimate failure to
appear, we find that plaintiff’s “one-day tardiness in issuing
its follow-up request for the EUO scheduled for” JS was “a
technical defect excusable under 11 NYCRR 65-3.5(p)” (Z.M.S. & Y.
Acupuncture, P.C. v Geico Gen. Ins. Co., 56 Misc 3d 926, 930 [Civ
Ct, Kings County 2017]).

_______________________
CLERK

Respondent,
-against-
Steven Rogers,
_________________________

Cyrus R. Vance, Jr., District Attorney, New York (Michael D.

Tarbutton of counsel), for respondent.
_________________________
Judgment, Supreme Court, New York County (Edward J.
McLaughlin, J. at plea; Ellen N. Biben, J. at sentencing),
rendered April 4, 2017, convicting defendant of two counts of
criminal possession of a controlled substance in the second
degree, and sentencing him to concurrent prison terms of six
years, with five years’ postrelease supervision, unanimously
affirmed.
The record establishes that the court pronounced sentence on
each of the two counts on which defendant was convicted, thereby
satisfying CPL 380.20. In context, the phrasing of the court’s
oral pronouncement of sentence had no possible meaning other than
the imposition of concurrent sentences of six years, with five
years’ postrelease supervision, and all parties plainly
understood the sentence as such (see People v Schwartz, 7 AD3d
445, 446 [1st Dept 2004], lv denied 3 NY3d 662 [2004]).

1094 [2016]), which forecloses review of his excessive sentence
claim. Regardless of the validity of defendant’s appeal waiver,
we perceive no basis for reducing the sentence.

_______________________
CLERK
11811- Index 26343/15E

11812N-
11812NA Jennifer Luciano,
-against-
Maribel Felix, et al.,

_________________________
Michael T. Altman, Woodmere, for appellant.
Marjorie E. Bornes, Brooklyn, for respondents.

_________________________
Order, Supreme Court, Bronx County (Fernando Tapia, J.),
entered April 8, 2019, which denied plaintiff’s motion to vacate
the prior orders and restore the matter pursuant to CPLR 5015 on
the basis that she lacked a reasonable excuse for the default,
unanimously affirmed, without costs. Appeals from order, same
court and Justice, entered May 1, 2018, which granted defendants’
unopposed motion for summary judgment dismissing the complaint
for lack of a causally related serious injury within the meaning
of Insurance Law § 5102(d), and from order, same court and
Justice, entered November 19, 2018, which denied plaintiff’s
motion for leave to renew and reargue, unanimously dismissed,
without costs, as taken from nonappealable orders.
Since the order granting summary judgment dismissing the
complaint was granted on default, the court properly denied
plaintiff’s motion to renew and reargue. The proper remedy for
plaintiff was to move to vacate the default pursuant to CPLR 5015

(Bank Leumi Trust Co. of N.Y. v Sibthorpe, 161 AD2d 325 [1st Dept
1990]; Vasquez v Koret, Inc., 151 AD2d 448 [1st Dept 1989]),
which plaintiff ultimately did.
However, Supreme Court providently exercised its discretion
in denying plaintiff's motion pursuant to CPLR 5015. Under the
circumstances, plaintiff’s claim that her failure to submit
opposition to defendants’ summary judgment motion was caused by
law office failure is insufficient to establish a reasonable
excuse for the default, because counsel offered no explanation as
to why he believed a requested adjournment had been granted by
the court and did not seek reargument until three months after
the action was dismissed (see Perez v New York City Hous. Auth.,
47 AD3d 505, 505-506 [1st Dept 2008]). Furthermore, plaintiff’s
counsel failed to submit the proposed opposition to the motion,
which included medical affirmations prepared months after the
proposed adjourn date, with the motion to renew or reargue.
Given plaintiff’s prolonged delay, the motion court did not
abuse its discretion in finding that it need not decide the issue
of whether her action has merit (see Agosto v Western Beef
Retail, Inc., 175 AD3d 1192, 1192-1193 [1st Dept 2019]). Because
plaintiff failed to provide an acceptable excuse for the default,
it is unnecessary for this Court to address whether she
demonstrated a meritorious cause of action (see Fernandez v
Santos, 161 AD3d 473, 474 [1st Dept 2018]).
If we were to review the serious injury threshold issue, we

would find that defendants established their initial burden to
show that plaintiff did not sustain a serious injury causally
related to the minor accident (see Riollano v Leavey, 173 AD3d
494, 495 [1st Dept 2019]; Moreira v Mahabir, 158 AD3d 518, 518
[1st Dept 2018]; Rodriguez v Konate, 161 AD3d 565, 566 [1st Dept
2018]). Plaintiff’s proposed opposition does not contain medical
evidence causally relating to the accident, other than the
conclusory statement of one provider who relied on the history
provided by plaintiff and did not address the evidence of
degeneration in plaintiff's own MRI report (see e.g. Alvarez v
NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd 24 NY3d
1191 [2015]; Williams v Laura Livery Corp., 176 AD3d 557, 558
[1st Dept 2019]).

_______________________
CLERK
11813N & Diana Parker, as Trustee of the Index 654069/18

M-418 Henry Rothschild Irrevocable Trust, 654490/18
-against-
The American Association of University

Women,
- - - - -
Diana Parker, as Executor under the
Last Will and Testament of Gertrude F.
Rothschild and Trustee under the
Gertrude F. Rothschild Irrevocable Trust,
-against-
The American Association of University

Women,
_________________________
DelBello Donnellan Weingarten Wise & Wiederkehr LLP, White Plains

(Alfred E. Donnellan of counsel), for appellant.
White and Williams, New York (Eric B. Porter of counsel), for

respondent.
_________________________
entered February 19, 2019, which, inter alia, granted defendant’s
motions pursuant to CPLR 325(e) to remove index No. 654069/18 to
the Surrogate’s Court, Bronx County, and index No. 654490/18 to
the Surrogate’s Court, Westchester County, unanimously affirmed,
with costs.
It was not an improvident exercise of the court’s discretion
(see Benjamin v Morgan Guar. Trust Co. of N.Y., 173 AD2d 373, 375
[1st Dept 1991]) to grant defendant’s motions. To be sure, CPLR

325(e) says, “Where an action pending in the supreme court
affects the administration of a decedent’s estate which is within
the jurisdiction of the surrogate’s court, the supreme court. . .
may remove the action to such surrogate’s court.” However, that
statute made “no change from . . . Civil Practice Act 190(a). . .
The Surrogate’s Court at the time of the enactment of CPA 190 and
CPLR 325 did not have jurisdiction over inter vivos trust[s]”
(Estate of Bialor, 1991 NYLJ LEXIS 2153, *2 [Sur Ct, Nassau
County 1991]; see also Wagenstein v Shwarts, 82 AD3d 628, 631 n
[1st Dept 2011]). However, “[t]he amendments to the SCPA,
beginning in 1980, make clear that the Surrogate possesses
jurisdiction to determine matters relating to inter vivos trusts
concurrent with the jurisdiction of the Supreme Court” (id.).
Thus, we agree that CPLR 325(e) “empower[s] the Supreme Court to
transfer to the Surrogate’s Court any matter over which the
Surrogate’s Court has jurisdiction” (1991 NYLJ LEXIS 2153 at *2).
Plaintiff’s claim that Surrogate’s Court lacks subject-
matter jurisdiction over the removed actions, which involve
lifetime trusts, is unavailing (see SCPA 207[1] & 209[6];
Wagenstein, 82 AD3d at 629, 631). Similarly, since defendant
moved pursuant to CPLR 325(e), plaintiff’s complaint that
defendant failed to comply with CPLR article 5 is unavailing. In
any event, even if New York County is the proper venue, the
instant actions may still proceed in Bronx County and Westchester
County (see Kurfis v Shore Towers Condominium, 48 AD3d 300 [1st

Dept 2008]).
We decline defendant’s request to impose sanctions on
plaintiffs, as plaintiff’s appeal is not frivolous (see 22 NYCRR
130–2.1).
We have considered plaintiff’s remaining contentions and
find them unavailing.
M-418 - Parker v American Assn. of Univ. Women
Motion for sanctions, denied.

_______________________
CLERK
SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT,
Judith J. Gische, J.P.

Ellen Gesmer
Jeffrey K. Oing
Peter H. Moulton, JJ.
11320
Index 450545/19
________________________________________x
In re Letitia James, etc.,

-against-
iFinex Inc., et al.,

Respondents-Appellants.
________________________________________x
Respondents appeal from the order of the Supreme Court, New York
County (Joel M. Cohen, J.), entered August
19, 2019, which, insofar as appealed from as
limited by the briefs, denied respondents’
motion to dismiss.
Steptoe & Johnson LLP, New York (Charles A.

Michael of counsel), and Morgan Lewis &
Bockius LLP, New York (Zoe Phillips of
counsel), for appellants.
New York State Office of the Attorney

General, New York (Philip J. Levitz, Scott A.
Eisman and Steven C. Wu of counsel), for
respondent.
GESMER, J.
This case raises important issues about the scope of the
authority of petitioner, the Attorney General of the State of New
York, to investigate fraud under the Martin Act. The trial court
properly rejected the attempts by respondents to limit
petitioner’s lawful authority to protect New York residents.
Respondents BFXNA Inc. and BFXWW Inc. are wholly-owned
subsidiaries of respondent iFinex (collectively iFinex). iFinex
operates a trading platform known as Bitfinex on which virtual
currencies can be exchanged. Respondent Tether Holdings Limited
is the holding company for respondents Tether Limited, Tether
Operations Limited, and Tether International Limited
(collectively Tether Holdings). Tether Holdings’s main activity
is to issue a virtual “stablecoin” currency known as “tether”
(referred to below as tether). Stablecoin is a type of virtual
currency that is designed to minimize price volatility by being
pegged to a stable asset or currency. Until on or about March 4,
2019, respondent Tether Holdings represented that every tether is
“backed” by one U.S. dollar, and any holder of tether may redeem
it for one U.S. dollar at any time. After that date, Tether
Holdings changed its representation on its website to state that,
while every tether is still valued at one U.S. dollar, tether is
backed by Tether Holding’s “reserves,” which include unspecified
2
currency, “cash equivalents,” and “other assets and receivables
from loans made by Tether [Holdings] to third parties,” including
to affiliated entities.
Nonparty Digfinex Inc. is the majority owner of iFinex and
Tether Holdings. A small group of executives and employees, some
of whom are or have been located in New York, operates all
respondents. Each of respondents is incorporated outside of the
United States and does not have a central headquarters, and none
is registered for service of process in New York.
In November 2018, petitioner commenced an investigation of
respondents pursuant to the Martin Act, which gives the Attorney
General “broad regulatory and remedial powers” to “investigat[e]
and interven[e] at the first indication of possible . . . fraud
on the public and, thereafter, if appropriate, to commence civil
or criminal prosecution” (Assured Guar. [U.K.] Ltd. V J.P. Morgan
Inv. Mgt. Inc., 18 NY3d 341, 350 [2011] [internal quotation marks
omitted]; see General Business Law [GBL] 352[1]). Petitioner
began the investigation as a result of her concern that
respondents lacked sufficient liquidity to permit customers to
redeem tether at the represented value.
Petitioner served subpoenas on third parties pursuant to the
Martin Act (GBL 352) and Executive Law § 63(12), seeking
information regarding respondents’ activities. After learning of
3
this, respondents’ counsel contacted petitioner on November 3,
2018 and agreed to accept service of subpoenas by email on behalf
of respondents. Petitioner then delivered subpoenas seeking
information and documents from January 1, 2015 forward.
Respondents’ counsel accepted service of the subpoenas and
produced some of the requested documents and information.
In early 2019, petitioner’s investigation revealed
information that respondents had not disclosed to her, although
it came within the scope of the information sought by the
subpoenas. Respondents had previously explained to petitioner
that many banks and other traditional financial institutions will
not do business with unregulated or off-shore companies dealing
in virtual currency. As a result, beginning in 2014, iFinex had
used a third-party foreign entity to process customer deposits
and withdrawals. In or about February 2019, petitioner learned
that, since mid-2018, this entity had refused to provide iFinex
with close to $1 billion of their commingled client and corporate
funds. In addition, respondents advised petitioner that, in
November 2018, Tether Holdings had transferred $625 million to
iFinex, and that iFinex was planning to take a $900 million line
of credit from Tether Holdings. Petitioner expressed concern
that the latter transaction might constitute a conflict of
interest, but respondents nevertheless went ahead with the
4
transaction and only told petitioner that they had done so after
the deal had closed.
Concerned that these events indicated that iFinex was in
serious financial trouble, that Tether Holdings’ cash reserves
backing tether would be dissipated, and that respondents had
misled their customers in relation to these events, petitioner
sought an order pursuant to GBL 354. That provision of the
Martin Act permits the Attorney General to seek an ex parte order
in Supreme Court requiring the subjects of an investigation to
produce documents and testify under oath, and authorizes the
court to issue a “preliminary injunction or stay as may appear to
[it] to be proper and expedient” (GBL 354). In response to
petitioner’s request, Supreme Court issued an ex parte order
dated April 24, 2019, which directed respondents to produce
certain documents and stayed them from 1) taking any further
action to “make any [] claim . . . on the U.S. dollar reserves
held by Tether” [Holdings]; 2) making any payments to any
individual associated with respondents “from the U.S. dollar
reserves held by Tether” [Holdings]; and 3) altering or
destroying any documents related to the investigation.
Petitioner served the ex parte order on respondents, pursuant to
its terms, by sending a copy of it, together with the papers on
which it was based, to respondents’ counsel by email, overnight
5
delivery and hand delivery.
On or about April 30, 2019, respondents moved to modify or
vacate the ex parte order. By order dated May 16, 2019, Supreme
Court granted respondents’ motion in part by modifying the
temporary restraining order, but denied their motion to vacate
it.1
On or about May 21, 2019, respondents made the instant
motion, which they style as a motion to dismiss on the basis of
lack of subject matter jurisdiction (CPLR 3211[a][2]) and lack of
personal jurisdiction (CPLR 3211[a][8]). Supreme Court denied
the motion by order entered on August 19, 2019, and respondents
now appeal.
At the outset, under the Martin Act’s statutory scheme, once
Supreme Court has issued an order responding to a GBL 354
application, it has no further role in the Attorney General’s
investigation, except to rule on a motion by either party to
vacate or modify the order, as respondents made here.
Accordingly, once the court issued the order authorized by GBL
354 on April 24, 2019, and modified it by order dated May 16,
2019, the proceeding before it was concluded and there was no
action or proceeding for Supreme Court to “dismiss” on May 21,
1
Respondents did not appeal from that order and it is not
before us.
6
2019 when respondents filed their motion that resulted in the
order now before the court. All that remained was the Attorney
General’s ongoing investigation, in which, by statute, the courts
have no further role at this stage. Indeed, neither party cites
to, and this Court is unaware of, any prior case in which the
subject of a Martin Act investigation has moved to “dismiss” an
application by the Attorney General for an order pursuant to GBL
354. Nevertheless, I consider each of respondents’ three
arguments in support of their appeal of the motion court’s August
19, 2019 order, and reject each for the reasons discussed below.
First, respondents argue that tether does not qualify as a
security or commodity as those terms are defined in the Martin
Act, and that the motion court thus lacked subject matter
jurisdiction over them. I disagree for three reasons. As an
initial matter, Supreme Court has broad general original
jurisdiction, including to hear applications by the Attorney
General for orders pursuant to GBL 354 under the Martin Act.
Accordingly, as the motion court correctly found, respondents’
challenge is actually to petitioner’s authority to investigate
their activities, rather than the court’s jurisdiction to hear a
GBL 354 application.
Moreover, the May 16, 2019 order on respondent’s motion to
vacate or modify the ex parte order rejected respondents’ subject
7
matter jurisdiction argument. Respondents failed to appeal from
that order.
Finally, even if the court were to consider respondents’
argument on the merits, the Martin Act’s definition of
commodities as including “any foreign currency, any other good,
article, or material” (GBL 359-e[14]) is broad enough to
encompass tether.2 Indeed, federal courts and the Commodities
Futures Trading Commission have found that virtual currencies are
commodities under the Commodities Exchange Act, which defines the
term more narrowly than does the Martin Act (“all other goods and
articles . . . and all services rights and interests . . . in
which contracts for future delivery are presently or in the
future dealt in” [7 USC § 1a(9) (emphasis added)]; Commodities
Future Trading Commn. v McDonnell, 287 F Supp 3d 213, 224-226 [ED
NY 2018]; Matter of Coinflip, Inc., 2015 WL 5535736, *2, 2015
CFTC LEXIS 20, *6 [Sept. 17, 2015, CFTC Docket No. 15-29]).
Accordingly, the motion court properly denied the branch of
respondents’ motion to dismiss based on subject matter
jurisdiction.
Next, respondents argue that Supreme Court lacked specific
2
Because tether is easily encompassed by the statute’s
definition of “commodity,” there is no need to reach the issue of
whether it may also qualify as a “security” under the Martin Act.
8
personal jurisdiction over them because petitioner failed to
demonstrate a sufficient connection between respondents’ activity
in New York and the activities she is investigating. This
argument is unavailing.
On a motion pursuant to CPLR 3211(a)(8) to dismiss for lack
of personal jurisdiction, the party asserting jurisdiction has
the burden of demonstrating “satisfaction of statutory and due
process prerequisites” (Stewart v Volkswagen of Am., 81 NY2d 203,
207 [1993]). Under CPLR 302(a)(1), New York’s long-arm
jurisdiction statute, “proof of one transaction in New York is
sufficient to invoke jurisdiction, even though the defendant
never enters New York, so long as the defendant's activities here
were purposeful and there is a substantial relationship between
the transaction and the claim asserted” (Deutsche Bank Sec., Inc.
v Montana Bd. of Invs., 7 NY3d 65, 71 [2006][internal quotation
marks omitted], cert denied 549 US 1095 [2006]). Due process is
satisfied when a foreign entity has “minimum contacts” with the
State and exercise of jurisdiction does not “offend traditional
notions of fair play and substantial justice” (International Shoe
Co. v Washington, 326 US 310, 316 [1945] [internal quotation
marks omitted]; see also LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210,
216 [2000]). It is “rare” for personal jurisdiction to be
permitted under the long-arm statute and prohibited by due
9
process considerations (Rushaid v Pictet & Cie., 28 NY3d 316, 331
[2016] [internal quotation marks omitted]). Moreover, “[w]here
the purpose of the proceeding is to protect the citizens of the
State from potentially dangerous consequences, less is required
than might otherwise be the case” (Matter of La Belle Creole
Intl., S. A. v Attorney-General of the State of N.Y., 10 NY2d
192, 198 [1961]).
Here, petitioner is investigating, inter alia, whether
respondents have committed fraud (as broadly defined in the
Martin Act) “within or from” New York (GBL 352) by making untrue
claims about the cash reserves backing tether and their ability
to honor customer withdrawal requests. She has sought documents
and information from respondents going back to 2015, which is
well within the applicable six-year statute of limitations (CPLR
213[9]).
iFinex admits that it permitted New York-based customers to
trade tether on the Bitfinex platform until January 30, 2017.
Respondent Tether Holdings did not expressly prohibit redemption
of tether by New York-based customers until November 27, 2018.
Petitioner included in her motion papers documents obtained in
her investigation indicating that New York-based customers
nevertheless used the Bitfinex platform to trade tether after
both of these dates, including as recently as May 14, 2019 (see
10
Archer-Vail v LHV Precast, Inc., 168 AD3d 1257, 1261-1262 [3d
Dept 2019] [showing that the defendant operated an “interactive
website” that made products available to New York customers was a
“sufficient start” to showing of long-arm jurisdiction on motion
to dismiss]).
In addition, respondents do not deny that, until at least
early 2018, they had an executive who resided in and conducted
business on their behalf within New York, including with
customers who appear to be New York-based (see Kreutter v
McFadden Oil Corp., 71 NY2d 460, 467 [1988][long-arm jurisdiction
established where agent “engaged in purposeful activities in this
State . . . for the benefit of and with the knowledge and
consent” of foreign corporation defendants]. While respondents
claim that the customer involved in certain correspondence
attached to petitioner’s papers was a “United Kingdom entity,”
they do not deny that the entity acted through a representative
located in New York.
Furthermore, respondents had active accounts with New York
banks until at least October 2018 (see Licci v Lebanese Can.
Bank, SAL, 20 NY3d 327, 339 [2012] [foreign defendant’s “repeated
use” of New York bank accounts to effect wire transfers on behalf
of foreign client sufficient to exercise long-arm jurisdiction]),
and retained New York professional firms to review tether cash
11
reserves and to make public statements on respondents’ behalf
about the Bitfinex platform and tether cash reserves in 2017 and
2018 (see Courtroom Tel. Network v Focus Media, 264 AD2d 351, 353
[1st Dept 1999] [long-arm jurisdiction established where the
defendant relied on agents “to perform commercial activities in
New York for [their] benefit”]).
Accordingly, petitioner has demonstrated that respondents’
activities in New York were sufficiently related to the subjects
of petitioner’s investigation to satisfy specific personal
jurisdiction for the purposes of GBL 354. It bears noting that,
in an ordinary case, the party opposing a motion to dismiss based
on personal jurisdiction need not establish that there is
personal jurisdiction. Rather, she need only make a “sufficient
start” in demonstrating, prima facie, the existence of personal
jurisdiction, since facts relevant to this determination are
frequently in the exclusive control of the opposing party and
will only be uncovered during discovery (Peterson v Spartan
Indus., 33 NY2d 463, 466-467 [1974]; see also Universal Inv.
Advisory SA v Bakrie Telecom Pte, Ltd., 154 AD3d 171, 179-180
[1st Dept 2017]). Here, some of the information the ex parte
order requires respondents to produce to petitioner is relevant
to this issue and may reveal additional bases for the court’s
exercise of personal jurisdiction over respondents if and when
12
petitioner commences an action against them, including documents
concerning Bitfinex users and tether holders residing or doing
business in New York. For that reason, courts generally permit
discovery to proceed solely on the jurisdictional issue in the
first instance following a dismissal motion on that basis and a
prima facie showing of the existence of personal jurisdiction.
However, what is at issue here is not the existence of personal
jurisdiction for a lawsuit but merely for an investigation, which
requires a far lighter showing. Petitioner has made a sufficient
showing of personal jurisdiction in the context of this Martin
Act investigation for Supreme Court to have issued the ex parte
order pursuant to GBL 354. The Martin Act authorizes the
Attorney General to investigate securities or commodities fraud
(as those terms are defined by the Act) “within or from” New York
(GBL 352). Petitioner may properly investigate a foreign entity
if she “has a reasonable basis for believing that [it] has
violated a New York statute” (La Belle Creole, 10 NY2d at 198).
As the Court of Appeals found in relation to the Attorney
General’s issuance of a subpoena on a foreign corporation
pursuant to her broad investigative powers, her request for an
order pursuant to GBL 354 “is not rendered improper because it
may produce the evidence required to establish that the
petitioner is doing business in New York” (id.). Finally,
13
respondents argue that Supreme Court lacked personal jurisdiction
over them because petitioner improperly served the ex parte order
when she delivered a noncertified copy to respondents’ counsel by
hand, email, and overnight delivery. I disagree for two reasons.
First, this Court’s decision in Abrams v Lurie (176 AD2d 474
[1st Dept 1991]), relied upon by respondents, is not
determinative here. In Lurie, we found that a GBL 354 order must
be served in accordance with the CPLR, and held that, where there
was no showing that personal service on an individual was
“impracticable” (CPLR 308[5]; see also CPLR 311[b]), service upon
him by mail was improper. In doing so, this Court stated:
“A General Business Law § 354 order is

closely analogous to both a subpoena and a
temporary restraining order, both of which,
under the CPLR, must be served in the same
manner as a summons (CPLR 2303, 6313[b]). In
the case of a temporary restraining order,
the court is expressly empowered to order
service otherwise, but it is generally
recognized that this power is exercised only
when a temporary restraining order is issued
in the context of an already pending action”
(Lurie, 176 AD2d at 476).
There is no indication that the individual respondent in
Abrams was aware of the Attorney General’s investigation, much
less that he had already been cooperating and had agreed to
accept service of a subpoena, as is the case here. Where
respondent is aware of the investigation and has been
14
cooperating, the GBL 354 order is analogous to a temporary
restraining order issued in an “already pending action.”
Accordingly, service pursuant to CPLR 6313 is appropriate.
Unlike CPLR 311(b), CPLR 6313(b) does not require a showing of
impracticability, but rather provides: “Unless the court orders
otherwise, a temporary restraining order together with the papers
upon which it was based, and a notice of hearing for the
preliminary injunction, shall be personally served in the same
manner as a summons” (emphasis added). Here, the court did order
otherwise, and specifically authorized that service “of a copy of
the Order, and the papers upon which it was granted, on counsel
for Respondents” would be sufficient.
Furthermore, whether a defect in service is jurisdictional
or a mere technical irregularity that a court may overlook under
CPLR 2001 depends upon whether it “affect[s] the likelihood that
the [pleading] will reach [the] defendant and inform him that he
is being sued” (Ruffin v Lion Corp, 15 NY3d 578, 583 [2010]). In
making this determination, “courts must be guided by the
principle of notice to the defendant—-notice that must be
‘reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them
an opportunity to present their objections’” (id. at 582 [quoting
Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314
15
[1950]). The Court of Appeals noted in Ruffin, in dicta, that
mailing, emailing, or delivering the pleading to the wrong person
all “would present more than a technical infirmity, even if
defendant actually receives the documents, inasmuch as these
methods in general introduce greater possibility of failed
delivery” (id. at 583). In Ruffin, the Court held that personal
service upon the defendant bus company at its out-of-state
headquarters by a person not authorized under the CPLR to make
such service was a mere technical infirmity, which the motion
court properly overlooked in denying the defendant’s motion to
vacate the default judgment against it.
Here, petitioner’s service of a copy, rather than a
certified copy as required by GBL 355, is unquestionably a mere
technical infirmity, since it had no impact on the likelihood of
failed delivery. Moreover, the order on its face required
service only of a ‘copy,’ not a certified copy. Petitioner’s
service by hand, email and overnight delivery on respondents’
attorney with whom she had been dealing throughout her
investigation was reasonably calculated to inform respondents of
the existence of the GBL 354 order. As discussed above, the ex
parte order in this case is not a summons or complaint informing
respondents for the first time of a lawsuit’s commencement.
Rather, it is simply the next step in petitioner’s investigation
16
of respondents, who were well aware of it and were cooperating
with it.
Moreover, even if service had been improper, petitioner
argues that respondents waived any objection based on lack of
personal jurisdiction because of inadequate service by failing to
raise it in their initial motion to vacate or modify the ex parte
order. I agree. Because a GBL 354 application does not result
in a final order from a court after trial or summary judgment,
there is nothing to “dismiss.” Respondents’ only remedy is to
seek to vacate or modify the GBL 354 order. Accordingly,
respondents’ earlier motion to vacate the GBL 354 order was,
procedurally speaking, their motion to dismiss. By failing to
make their case as to lack of personal jurisdiction based on
improper service in that motion, the determination of which
respondents have not appealed, respondents have waived this
argument.
Accordingly, the order of the Supreme Court, New York County
(Joel M. Cohen, J.), entered August 19, 2019, which, insofar as
17
appealed from as limited by the briefs, denied respondents’
motion to dismiss, should be affirmed, without costs.
All concur.
Order, Supreme Court, New York County (Joel M. Cohen, J.),

entered August 19, 2019, affirmed, without costs.
Opinion by Gesmer, J. All concur
Gische, J.P., Gesmer, Oing, Moulton, JJ.

_______________________
CLERK
18

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Acosta, P.J., Manzanet-Daniels, Kapnick, Singh, González, JJ.

11768 The People of the State of New York, Ind. 2375/17

Kelmiet Vega, also known as Kelmeit Vega,

Center for Appellate Litigation, New York (Robert S. Dean of

Darcel D. Clark, District Attorney, Bronx (John T. Komondorea of

An appeal having been taken to this Court by the above-named

Said appeal having been argued by counsel for the respective

It is unanimously ordered that the judgment so appealed from

THIS CONSTITUTES THE DECISION AND ORDER

ENTERED: JULY 9, 2020

11770 In re Maria S., and Others, Dkt. NA-26991-3/17

Children Under Eighteen Years of Age

Administration for Children’s Services,

Andrew J. Baer, New York, for appellant.

James E. Johnson, Corporation Counsel, New York (John Moore of

Dawne A. Mitchell, The Legal Aid Society, New York (Amy

Order of fact-finding and disposition (one paper), Family

Court, Bronx County (Valerie A. Pels, J.), entered on or about

July 10, 2019, which, to the extent appealed from as limited by

the briefs, after a hearing, determined that respondent Angel A.

abused the child Maria S. and derivatively abused the children

Jordanny P. and Swander A., unanimously affirmed, without costs.

The court’s determination that respondent sexually abused

Maria is supported by a preponderance of the evidence (see Family

Court Act § 1046[b][I]). The child’s in-court testimony, which

the court credited, that respondent, her stepfather, digitally

penetrated her vagina is sufficient to support the abuse finding

2017]). There is no basis for disturbing the court’s credibility

determinations, which included an evaluation of the alleged

respondent’s contention, sexual gratification can be inferred

from the act itself (People v Leonard, 29 NY3d 1, 8 [2017]; see

The court’s determination that respondent derivatively abused

Jordanny and Swander is supported by a preponderance of the

evidence. Respondent sexually abused Maria with the other

children sleeping in a nearby room while their mother was at work

and he was their sole caretaker. Respondent’s conduct

demonstrates parental judgment and impulse control so defective

as to create a substantial risk of harm to the children in his

care (see Markeith G., 152 AD3d at 425; Matter of Taurice M.

[Gregory A.], 147 AD3d 844, 845 [2d Dept 2017]).

THIS CONSTITUTES THE DECISION AND ORDER

ENTERED: JULY 9, 2020

11771- Index 154922/18

Vivienne Gilbert, Esq., et al.,

Frank Mazzocchi, appellant pro se.

Braverman Greenspun, P.C., New York (Tracy Peterson of counsel),

Thomas M. Curtis, respondent pro se.

Anderson Kill, P.C., New York (Grant E. Brown of counsel), for

Gallett Dreyer & Berkey, LLP, New York (Morrell I. Berkowitz of

Order, Supreme Court, New York County (Alan C. Marin, J.),

entered on or about March 25, 2019, which, to the extent

appealable, granted the motions of defendants Vivienne Gilbert,

Esq., Howard J. Lazarus, Esq., Deborah B. Koplovitz, Esq.,

Morrell I. Berkowitz, Esq., Alan M. Goldberg, Esq., Bruce A.

Cholst, Esq., and Andrew J. Wagner, Esq. to dismiss the complaint

as against them, unanimously affirmed, without costs. Appeal from

portion of the order that sua sponte dismissed the complaint as

against defendant Thomas M. Curtis, Esq., unanimously dismissed,

without costs, as nonappealable.

Plaintiff fails to state a cause of action for violation of

Lazarus because he does not allege that they acted as counsel of

record in any legal proceeding to which he was a party (see Sun