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Appeal from a judgment of the Court of Claims which dismissed a personal injury claim, finding that the State was free from negli*570genee in the maintenance of a pathway in Tallman State Park, upon which claimant fell, and that claimant was guilty of contributory negligence. The pathway, about five feet wide and surfaced with blacktop material, was steep and winding. A continuous handrail ran on one side and there was a rail at intervals on the other. To permit drainage of surface water, depressions known as “thank-you-ma’ams” had been constructed in the walk, one about 30 feet from the bottom and the other about that distance above the first. Claimant, preceded by several members of her family group and followed by her son, proceeded down the pathway, holding to the railing with one hand, passed over the first thank-you-ma’am and fell at the second. Claimant said that there were leaves on the pathway and that she did not observe the depression. Her son also testified that there were leaves upon the path “ at that time of the year ”, but the date was September 4 and the pictures which he took some days or weeks later displayed no leaves. He described the site of the thank-you-ma’am by saying that “the blaektopping was in pretty bad condition, there were ruts and crevices all along, and this particular crevice is quite large.” This unsatisfactory description is that upon which claimant seeks to predicate liability and her case is not strengthened by the son’s further testimony that this supposed condition of danger had existed for three years, on this path leading from the picnic area to the swimming pool in a well-frequented public park, without, as later appeared, the occurrence of a similar accident. The photographs offered by claimant are equally unsatisfactory and are difficult to reconcile with the State’s exhibits. The State’s witness, who inspected the site the day following the accident, said that the path was in good condition, without grooves, cracks or ruts, that there were no leaves and that during the five-year period preceding this accident no other accident had occurred upon it. The decision seems to us in accord with the weight of the evidence which the trier of the facts was entitled to credit. Judgment unanimously affirmed, without costs.

In a proceeding pursuant to Not-For-Profit Corporation Law § 511 for permission to sell certain real property to Sela-Lincoln Realty Corporation, the nonparties Denise Caldwell Taylor and Linda Caldwell appeal, and the nonparty Attorney General of the State of New York separately appeals, from stated portions of an order of the Supreme Court, Kings County (Schmidt, J.), dated October 6, 2005, which, inter alia, in effect, denied, without a hearing, the motion of Prospect Heights Neighborhood Corporation, 345 Lincoln Place Tenants Association, and Denise Caldwell Taylor to vacate a prior order of the same court dated March 26, 2004, granting the petition and authorizing the sale. *782Ordered that the order dated October 6, 2005, is modified, on the law and in the exercise of discretion, by deleting the provision thereof, in effect, denying, without a hearing, the motion to vacate the order dated March 26, 2004 granting the petition and authorizing the sale; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the appellants appearing separately and filing separate briefs, and the matter is remitted to the Supreme Court, Kings County, for a hearing in accordance herewith, and thereafter, for a new determination on the motion. By order dated March 26, 2004, the Supreme Court granted the petition of the not-for-profit corporation Prospect Heights Housing Development Fund Corporation for permission to sell the subject premises to Sela-Lincoln Realty Corporation, without objection from the Attorney General (see Not-For-Profit Corporation Law §§ 510, 511). By motion dated November 15, 2004, certain tenants who resided at the premises sought to vacate that order, inter alia, on the ground that the petition contained several material misrepresentations and omissions. The underlying purpose of the Not-For-Profit Corporation Law is to protect the beneficiaries of a charitable organization from loss through unwise bargains and from perversion of the use of its property (see Rose Ocko Found, v Lebovits, 259 AD2d 685, 688 [1999]). Under the particular facts of this case, we remit the matter to the Supreme Court for a hearing to determine whether the sale of the subject premises was lawfully accomplished and, if not, whether the order dated March 26, 2004 granting the petition and authorizing the sale should be vacated (see Matter of Noble Drew Ali Plaza Hous. Corp., 24 AD3d 678 [2005]). In light of our determination, we decline to address the parties’ remaining contentions. Crane, J.P, Florio, Fisher and Dickerson, JJ., concur.

Appeal by an employer and his insurance carrier from a decision and award of the Workmen’s Compensation Board, the only issue being as to the finding that appellant employer was the general employer of claimant and liable for one half of the award. The status and liability of the respondent special employer are conceded. Appellant, a funeral director, employed claimant to drive a hearse and an ambulance and to perform general work. Claimant was regularly employed and was paid $60 per week regardless of whether business was slack or active, except as wages at the same rate may have been paid by the special employer for some part or all of the time claimant worked for him. It is clear, however, that the slack periods were more frequent than the occasions on which the special employer needed claimant’s services and that except on those occasions appellant paid claimant’s full wages during his idle time and that claimant’s only additional work was for the respondent special employer. The latter, who was appellant’s son and a contractor, employed claimant to drive trucks. There was testimony that when the question of additional employment was first broached appellant asked claimant if he would “ mind helping ” respondent and said that his pay “ would be the same Appellant conceded an “ understanding ” that when he needed claimant, he would get in touch with his son or with claimant and claimant would come off the job; and appellant indicated that this stipulated control over claimant, even while he was actually working on the other job, was on occasion exercised. Although there was testimony that respondent special employer paid claimant for all the time that claimant worked, claimant said that he did not and respondent’s payroll records and the withholding slips issued by him clearly support claimant’s testimony; and the very nearly inescapable inference is that for certain periods of the special employment claimant was paid by appellant. Equally strong is the inference that from the arrangement for a special employment appellant derived material benefit in that, in a business subject to slack periods, he commanded or had first call upon the full time services of an employee but was relieved from paying him during some periods of idleness. (Cf. 1 Larson, Workmen’s Compensation Law, § 48.22, p. 715, n. 64.) The board’s determination was a factual one, upon evidence which seems to us substantial and such as to bring the case within the legal concept of general-special employment (cf. Matter of De Noyer v. Cavanaugh, 221 N. Y. 273, 275-276), and, accordingly, may not be disturbed by us. Rone of the factual elements which we deem decisive of the case before us appeared in those relied upon by appellants, viz., Matter of Dahoda v. Simmons (11 A D 2d 842); Matter of Mallon v. Lewisohn and Sons (282 App. Div. 784, motion for leave to appeal denied 306 N. Y. 980). We find no merit in the remaining points of appellants’ argument. Decision and award unanimously affirmed, with one bill of costs to respondents employer and carrier and respondent Workmen’s Compensation Board.

*783In related custody proceedings pursuant to Family Court Act article 6, the father appeals from (1) an order of the Family Court, Dutchess County (Forman, J.), dated September 6, 2005, which denied that branch of his motion which was to set aside his prior consent to a “mini-hearing” procedure, and (2) an order of the same court dated September 15, 2005, which, after a hearing, inter alia, awarded sole custody of the parties’ child to the mother. Ordered that on the Court’s own motion, so much of the notice of appeal as purports to appeal as of right from the order dated September 6, 2005, is treated as an application for leave to appeal from that order, and leave to appeal is granted (see Family Ct Act § 1112); and it is further, Ordered that the orders are reversed, on the law, without costs or disbursements, that branch of the father’s motion which was to set aside his prior consent to a “mini-hearing” procedure is granted, and the matter is remitted to the Family Court, Dutchess County, for further proceedings consistent herewith. At a hearing held before the Family Court on May 31, 2005 the attorney for the father consented to a “mini-hearing” procedure to determine the custody of the child, in which the father and the mother would testify in narrative form, to be followed by questions from the court and the law guardian. The format did not allow for the cross-examination of witnesses. At a hearing on August 11, 2005 the father’s attorney moved to be relieved as counsel, on the ground that the father would not cooperate with him in preparing for the “mini-hearing.” The court asked the attorney if he could continue representing the father for the remainder of the August 11th hearing. Before the attorney could answer, the court again outlined the “mini-hearing” procedure, and neither the father nor the attorney made any objection. The court then stated that it was relieving the father’s attorney. In an order dated September 6, 2005, the court denied that branch of the father’s pro se motion which was to set aside his prior consent to the “mini-hearing” procedure. At the close of the “mini-hearing,” held on September 15, 2005 the court stated that it was awarding sole custody of the child to the mother. The court then scheduled a psychiatric evaluation for the father to be held on December 22, 2005. In a written order dated September 15, 2005, the court, inter alia, awarded sole custody of the parties’ children to the mother. Although the parties in custody disputes may waive objections to irregular proceedings (see Kuleszo v Kuleszo, 59 AD2d *7841059, 1060 [1977]), it is unclear from the instant record whether or not the father was represented by counsel at the August 11th hearing. Thus, when the court again outlined the “mini-hearing” procedure, both the father and his attorney may have expected the other to make an objection. The failure to object in such confusing circumstances cannot be said to constitute an intelligent waiver of the father’s rights (cf. Matter of Goldman v Goldman, 201 AD2d 860, 861 [1994]). Moreover, the court erred in making a determination regarding custody prior to receiving the father’s psychiatric evaluation, which the court itself had requested (see Matter of Tyrone W. v Dawn M.P., 27 AD3d 1147, 1148 [2006]; Birnham v Birnham, 112 AD2d 967, 968 [1985]). Furthermore, the Family Court failed to state in the record the basis of its award of custody to the mother (see Matter of Machado v Del Villar, 299 AD2d 361 [2002]; Matter of Vangas v Ladas, 259 AD2d 755 [1999]; CPLR 4213 [b]). Accordingly, we remit the matter to the Family Court, Dutchess County, for a de novo hearing and a new determination regarding the petitions for custody. Miller, J.P, Spolzino, Ritter and Lifson, JJ., concur.

Appeal by an employer and its insurance carrier from a decision and award of the Workmen’s Compensation Board, appellants denying notice, and accident and causal relation. Claimant testified that while working as a boilermaker he dropped a baffle plate weighing 25 to 30 pounds on his right big toe, that he reported the accident to his foreman who obtained a bandage and bandaged the toe. The foreman testified that he did apply the bandage but that claimant did not report an accident, that “I thought he had trouble and I put a bandage on it and I didn’t think anything about it.” The conflict in testimony gave rise merely to an issue of credibility which the board was, of course, warranted in resolving as it did and in thereupon finding that an accident occurred and that the employer had actual knowledge and was not prejudiced by failure to give written notice. The injured toe became gangrenous and was amputated about five weeks after the accident. Claimant suffered from preexisting diabetes and severe sclerotic changes. The amputation wound broke down and became infected and claimant was totally disabled for some five months. Each of two doctors who attended claimant found the accident a competent cause of the complications and disability which followed it. The evidence was substantial and requires that we affirm. Awards in markedly similar cases have previously been sustained. (See Matter of Morano v. Marine Basin Co., 4 A D 2d 903, motion for leave to appeal denied 3 N Y 2d 709; Matter of Sliwinski v. Sacred Heart R. C. Church, 1 A D 2d 856.) Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Appeal from a decision and award of the Workmen’s Compensation Board for death benefits, the self-insured employer contending that decedent’s fatal accident which occurred when his automobile collided with a railroad car at a highway crossing did not arise out of the employment but was occasioned by a deviation therefrom. Decedent, a personnel manager, pursuant to direction of the employer transported two of its officials from its plant at Wellsville to a hotel in Buffalo, arriving there about 6:40 p.m. Coneededly, that trip and the homeward journey would ordinarily be in the employer’s business and the only issue is as to a possible deviation. There is no evidence as to decedent’s activities from 6:40 p.m. *572until about 11:30 p.m. when he was seen by a lawyer at an inn, described as “ highly reputable ”, at East Aurora. At this point decedent had travelled 18 miles from Buffalo, an eight-mile stretch of which was through city traffic, and was on the most direct route to Wellsville. Claimant conversed with the lawyer for more than an hour, consuming two splits of beer during that period, said he was tired but did not need to rest and left at about 12:45 a.m. He was not seen again until after the accident at the crossing, where he was about 70 miles from Buffalo and still on the direct route home, about 20 miles distant. The exact time of the accident is not known, as the members of the train crew were unaware of the collision, but the State Police were called at 2:05 a.m. Decedent’s son, who had accompanied his father on similar business trips, said that his father customarily stopped at a good restaurant for a leisurely dinner, sometimes spending two hours or more at the table and, further, that he occasionally pulled the car off the road and slept for a half hour to an hour and sometimes longer. Appellant, relying principally on Matter of Pasquel v. Coverly (4 N Y 2d 28), contends that from the mere unexplained lapse of time we must infer that the accidental death was occasioned by decedent’s deviation from the employment for personal indulgence or gratification in such degree as to require the conclusions that decedent never re-entered the employment and that the supposed personal acts prior to his departure from East Aurora caused his accidental death; and that we must thereupon reverse the board’s factual determination that no deviation occurred. There is no fair counterpart here to the factual situation in Pasquel, which involved many personal activities extending over a large part of the night and until decedent commenced his return trip between 3:00 and 3:30 a.m. and proceeded to his death in a one-ear accident two hours later. (Cf. Matter of Lowery v. Riss & Co., 10 A D 2d 489, motion for leave to appeal denied 8 N Y 2d 707.) Further, Pasquel’s movements were shown by uncontradicted proof; here it is sought to infer, if not conjecture, activities productive of risk and danger and contributory to decedent’s accident and death merely from lapse of time, unexplained because of the circumstances that there is no known witness to any act of decedent while en route home, until he reached East Aurora at 11:30 p.m. The board was warranted in rejecting the inference suggested. Absent proof or reasonable inference to the contrary, it is clear that decedent remained within the time and space limits of his employment and that the presumption of compensable accident, under section 21 of the Workmen’s Compensation Law, thereupon became operative and was not rebutted. (Matter of Ackerman v. Dairymen’s League Co-op. Assn., 10 A D 2d 112, motion for leave to appeal denied 8 N Y 2d 706; Matter of Pierorazio v. Pettignano, 3 A D 2d 616, motion for leave to appeal denied 2 NY 2d 710.) Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Incorporated Village of Málveme, dated September 29, 2005, which, after a hearing, denied his application for area variances, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Galasso, J.), dated January 9, 2006, which denied the petition and dismissed the proceeding. Ordered that the judgment is affirmed, with costs. In 2005 the petitioner purchased real property in the Incorporated Village of Málveme and applied for permission to subdivide the parcel and build a second residence on the vacant portion of the land. The Málveme Building Department denied the application on the ground that the proposal required variances from the Málveme zoning code. The petitioner applied to the Zoning Board of Appeals of the Incorporated Village of *785Málveme (hereinafter the ZBA) for the variances and, after a hearing, the ZBA denied the variances. The petitioner commenced a proceeding pursuant to CPLR article 78 seeking to annul the ZBA’s determination. The Supreme Court dismissed the proceeding, and we affirm. Contrary to the petitioner’s contention, he was not entitled to build on the proposed vacant parcel as of right since the Málveme zoning code does not contain a single and separate exemption from new zoning requirements. Therefore, the petitioner was required to obtain an area variance to build on the parcel (see Matter of Khan v Zoning Bd. of Appeals of Vil. of Irvington, 87 NY2d 344 [1996]; Matter of Milburn Homes v Trotta, 7 AD3d 531 [2004]; Matter of Bialla v Zoning Bd. of Appeals of Vil. of Northport, 271 AD2d 685 [2000]). Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion (see Matter of Halperin v City of New Rochelle, 24 AD3d 768 [2005]). Thus, the determination of a zoning board should be sustained upon judicial review if it has a rational basis and is not arbitrary and capricious (see Matter of Sasso v Osgood, 86 NY2d 374, 384 [1995]; Matter of Halperin v City of New Rochelle, supra; Matter of O’Connell v Knowlton, 21 AD3d 1105 [2005]). In determining whether to grant an area variance, a zoning board is required to engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted (see Matter of Aliperti v Trotta, 35 AD3d 854 [2006]; Village Law § 7-712-b [3] [b]). The zoning board is also required to consider whether (1) an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance, (2) the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance, (3) the requested area variance is substantial, (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district, and (5) the alleged difficulty was self-created (see Village Law § 7-712-b [3] [b]). Here, the ZBA weighed the relevant statutory factors and its determination was rational, and not arbitrary or capricious. The ZBA’s determination that the petitioner’s proposal would exacerbate already existing traffic and parking problems on the street had a rational basis (see Matter of Il Classico Rest, v *786Colin, 254 AD2d 418 [1998]; Matter of Moundroukas v Nadel, 223 AD2d 645 [1996]). Further, the petitioner is presumed to have had knowledge of applicable zoning restrictions in effect when he purchased the property, and, as such, any hardship was self-created (see Matter of Strohli v Zoning Bd. of Appeals of Vil. of Montebello, 271 AD2d 612 [2000]; Matter of Levine v Korman, 185 AD2d 323 [1992]; Matter of Sakrel, Ltd. v Roth, 182 AD2d 763 [1992]). Accordingly, the Supreme Court properly dismissed the proceeding. Schmidt, J.E, Skelos, Lifson and Covello, JJ., concur.

Appeal from a judgment of conviction of violation of section 483-b of the Penal Law of the State of New York. The defendant was convicted of the above section — carnal abuse of a child over 10 years and less than 16 years — on the testimony of a 13-year-old retarded child who stated that while alone in an automobile operated by the defendant and while lying on the front seat where the defendant was sitting, he took off her pants and that the defendant was sitting close to her. The occurrence is alleged to have taken place on the 3d day of November, 1959 in the Town of Ithaca, County of Tompkins. To sustain a conviction under section 483-b, the statute requires carnal abuse of the body of the child or indulging in any indecent or immoral practice with the sexual parts or organs of such child. That part of the indictment with which we are concerned alleged that the defendant “ did expose her [child] private parts and Ms private parts and did feel her private parts with *573his hands”. Suffice it to say that wherever the information was obtained for the purpose of preparing the indictment, it was not forthcoming at the time of the trial to substantiate these allegations. The other witnesses on behalf of the People in no essential way substantiated the charges. From such limited testimony we conclude there was an utter failure of proof to sustain the charges set forth in the indictment. (People v. Salacuse, 279 App. Div. 842.) The proof here is dependent solely upon her testimony which in itself does not meet the requirements of the statute. Under such circumstances, the operative facts necessary to constitute the crime are missing and the judgment of conviction cannot stand. (People v. Belcher, 299 N. Y. 321.) In view of our conclusions, it is not necessary to review the other alleged errors. Judgment of conviction on the law and facts reversed and indictment dismissed.

In related proceedings pursuant to Family Court Act articles 6, 8 and 10, the father appeals from (1) an amended decision of the Family Court, Dutchess County (Forman, J.), dated August 16, 2005, made after a hearing, (2) an order of fact-finding and disposition of the same court entered October 7, 2005, which, upon the amended decision and after a dispositional hearing, inter alia, found that the father had sexually abused and neglected the child Candace S., and derivatively abused and neglected the children Cedric S. and Dylen S., and found that the additional elements of severe abuse (see Social Services Law § 384-b [8] [a]) were proven and that the children were severely abused children, and awarded custody of the children to the mother and placed the father under the supervision of the Dutchess County Department of Social Services for a period of up to 12 months effective September 6, 2005, requiring him to *787comply with certain terms and conditions, and (3) an order of protection of the same court also dated October 7, 2005, which directed the father, inter alia, to stay at least 500 feet away from the children to remain in effect until January 12, 2009, with respect to the children Candace S. and Cedric S., and until August 17, 2019, with respect to the child Dylen S. Ordered that the appeal from the amended decision dated August 16, 2005 is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v J.A. Green Constr Corp., 100 AD2d 509 [1984]); and it is further, Ordered that the order of fact-finding and disposition entered October 7, 2005 is modified, on the law and the facts, by deleting the provision thereof finding that the additional elements of severe abuse were proven and that the children were severely abused children; as so modified, the order of fact-finding and disposition is affirmed, without costs or disbursements; and it is further, Ordered that the order of protection is modified, on the law, by deleting the provisions thereof directing that the order of protection remain in effect until January 12, 2009, with respect to the children Candace S. and Cedric S., and until August 17, 2019, with respect to the child Dylen S., and substituting therefor a provision directing that the order of protection remain in effect until October 7, 2006; as so modified, the order of protection is affirmed, without costs or disbursements. The determination by the Family Court that the appellant father had sexually abused his daughter Candace S. is supported by a preponderance of the evidence (see Family Ct Act § 1046 [b]; Matter of Tammie Z., 66 NY2d 1 [1985]). Where, as here, the Family Court is primarily confronted with issues of credibility, its factual findings must be accorded great weight on appeal (see Matter of Sylvia J., 23 AD3d 560, 562 [2005]; Matter of Cassandra C, 300 AD2d 303, 304 [2002]). Moreover, in article 10 cases, the Family Court has “considerable discretion to decide whether the child’s out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated and whether the record as a whole supports a finding of abuse” (Matter of Christina F., 74 NY2d 532, 536 [1989]; see Matter of Nicole V., 71 NY2d 112, 124 [1987]; Matter of Department of Social Servs. v Warren D., 195 AD2d 460, 461 [1993]). Here, where Candace’s out-of-court statements were partially corroborated by the out-of-court statements of her brother Cedric (see Family Ct Act § 1046 [a] [vi]; Matter of Nicole V., supra; Matter of Department of Social Servs. v Waleska M., 195 AD2d 507, 510 [1993]), and validated by the court-qualified expert in *788psychiatry who treated Candace during her hospitalizations (see Matter of Commissioner of Social Servs. of City of N.Y. v Edyth W., 210 AD2d 328, 328 [1994]; Matter of Nassau County Dept. of Social Servs. v Steven K., 176 AD2d 326, 327 [1991]; Matter of Linda K., 132 AD2d 149, 157 [1987]), Candace’s statements were sufficiently corroborated to support the finding of sexual abuse. In addition to its finding of abuse and neglect as to all three children, the Family Court made a further finding that the children were severely abused, as defined in Social Services Law § 384-b (8) (a). “Because such a finding is admissible, and often central, in a subsequent proceeding to terminate parental rights (see Family Ct Act § 1051 [e]; Social Services Law § 384-b [4] [e]), it must be based on clear and convincing evidence (see Family Ct Act § 1051 [e]), and must include, inter aha, a finding that ‘the agency has made diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate the [parent], when such efforts will not be detrimental to the best interests of the child, and such efforts have been unsuccessful and are unlikely to be successful in the foreseeable future’ ” (Matter of Latifah C., 34 AD3d 798, 800 [2006], quoting Social Services Law § 384-b [8] [a] [iv]). As no proof of such “diligent efforts” was tendered by the agency here, the Family Court’s additional finding of severe abuse cannot stand. The appellant is correct that, under the plain language of Family Court Act § 1056 (1) and (4), it is only where the person is not a relative, “by blood or marriage,” that the duration of an order of protection may extend to the child’s 18th birthday (see Matter of Collin H., 28 AD3d 806, 809-810 [2006]). Since the appellant is the children’s biological father, the court was not authorized to extend the order of protection beyond the duration of the order of disposition, one year in this case (see Family Ct Act § 1056 [1]; Matter of Sheena D., 8 NY3d 136 [2007]). Rivera, J.E, Skelos, Dillon and Covello, JJ., concur.

Appeal by the Special Disability Fund under subdivision 8 of section 15 from a decision of the Workmen’s Compensation Board which held it liable for compensation awarded. On October 2, 1953 claimant sustained an accident while working as manager of a meat market, resulting in injuries to his neck and cervical spine, for which awards have been made. On November 3,1954 the carrier filed a claim for reimbursement based upon a “ marked loss of hearing in the left ear incurred on April 29, 1948 ”. Claimant had a previous accident on April 29, 1948 where loss of hearing was claimed in a third-party suit. The only evidence in the record pertaining to this previous loss of hearing consists of medical reports showing varying loss of hearing from 35 to 70 decibels. There is no evidence of the percentage or degree of loss or the effect of the loss upon employment. Claimant, who is really the owner of the business of the corporate employer, does not claim that any loss of hearing interfered with or affected his work. The most *574that can be said of this record is that some loss of hearing was established. The extent or effect of it is undisclosed. There is no evidence that it constituted a handicap to employment or had any bearing on claimant’s employability. Neither is there anything to indicate that there is any greater disability than that which resulted from the last accident alone. We find no substantial evidence in this record that claimant was suffering from a permanent physical impairment within the meaning of subdivision 8 of section 15 so as to warrant charging the Special Fund with liability. Decision reversed, with costs to appellant, and the matter remitted to the Workmen’s Compensation Board.

Appeal from decision of the Workmen’s Compensation Board which found decedent died from work activities in the course of his duties as a volunteer fireman. On November 8, 1956, while helping as a volunteer fireman, the decedent collapsed and upon his arrival at a hospital, was pronounced dead. There was no autopsy. The testimony established that he ran back and forth on errands associated with the fighting of the fire, in the course of which he collapsed. It is undisputed that such activities constituted strenuous physical exertion. He had been in prior good health with no apparent heart ailments. The principal contention here seems to be that without an autopsy the medical testimony and the opinion of the doctors were speculative, especially when there was no prior history of heart disease. The decedent was 39 years of age and the doctor stated that while it was unusual at that age, the decedent must have had quite a degree of underlying arteriosclerosis and his opinion was based upon years of experience and attending many autopsies. While, of course, in all such cases an autopsy is helpful, the failure to have one is not fatal. Medical testimony generally is based upon opinion and hypothesis. Circumstances such as here, where the incident took place while in his employment and it was not disputed the work was strenuous and death was due to myocardial infarction, seem to be a fair basis for an opinion by the doctor as to causal relationship. There is substantial evidence, considering the record as a whole, to sustain the finding of the board. (Matter of Green v. Geiger, 253 App. Div. 469; 255 App. Div. 903, affd. 280 N. Y. 610; Matter of Wagner v. City Prods. Corp., 11 A D 2d 551; Matter of Shefick v. Lefrak, 11 A D 2d 828.) Decision unanimously affirmed, with costs to the Workmen’s Compensation Board.

In related visitation proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Kings County (O’Shea, J.), dated May 31, 2006, which, without a hearing, in effect, granted the mother’s motion to dismiss the proceedings for lack of continuing jurisdiction pursuant to Domestic Relations Law § 76-a. *789Ordered that the order is affirmed, without costs or disbursements. It is undisputed that the mother and the child have resided in Connecticut since September 2002. The father nevertheless argues that the Family Court retained “exclusive, continuing jurisdiction” (Domestic Relations Law § 76-a) with respect to these visitation proceedings, which were commenced on October 15, 2005, on the basis of either a temporary order of protection that was issued by the same court (Yuskevich, Ct Atty Ref) on February 13, 2002, or a permanent order of protection issued in a criminal action by the Supreme Court, Kings County (Lott, J.), on June 17, 2003. Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter UCCJEA) (see Domestic Relations Law § 75-a et seq.), a New York court that has issued an initial custody determination retains exclusive, continuing jurisdiction with respect to issues of custody and visitation, except in certain circumstances specified in the statute (see Domestic Relations Law § 76-a [1] [a], [b]). Contrary to the father’s argument, however, neither of the orders of protection constitutes an initial custody determination upon which exclusive, continuing jurisdiction may be predicated. For the purpose of the UCCJEA, the term “child custody determination” means “a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child” (see Domestic Relations Law § 75-a [3]). Neither the temporary order of protection nor the permanent order of protection took any such action. As a result, neither order can provide a basis for exclusive, continuing jurisdiction to support the petitions here. Therefore, the Family Court, in effect, correctly dismissed the proceedings for lack of jurisdiction. Miller, J.P, Spolzino, Goldstein and McCarthy, JJ., concur.

Proceeding pursuant to CPLR article 78 to review two determinations of the New York State Department of Correctional Services, both dated December 23, 2004, which (1) af*790firmed a determination of a hearing officer dated October 14, 2004, made after a Tier III superintendent’s hearing, finding that the petitioner had violated institutional rules, and imposing penalties, and (2) modified a determination of a hearing officer dated October 21, 2004, made after a Tier III superintendent’s hearing, finding that the petitioner had violated institutional rules, and imposing penalties. Adjudged that the determinations are confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements. During his temporary release from Lincoln Correctional Facility (hereinafter Lincoln), the petitioner left several voicemail messages on his wife’s telephone, threatening to kill her. The petitioner’s parole officer investigated the matter, listened to the messages and, by telephone, directed the petitioner to report to Lincoln immediately. The petitioner failed to return to Lincoln, either on that day or two days later when his period of temporary release expired, and he was apprehended approximately five months later. The petitioner was charged, in two separate inmate misbehavior reports, with violating various institutional rules of conduct. At the conclusion of disciplinary hearings, the petitioner was found guilty of most of the charges, and penalties were imposed. After pursuing an administrative appeal to the Department of Correctional Services, the petitioner commenced this CPLR article 78 proceeding, challenging the agency’s determinations. We confirm the determinations. Contrary to the petitioner’s contention, the two charges of violating temporary release program rules, one asserted in each inmate misbehavior report, were not duplicative (see Matter of Rowlett v Coombe, 242 AD2d 798, 799 [1997]; Matter of Crandall v Coughlin, 219 AD2d 823 [1995]). The first charge, involving the time before the expiration of the period of temporary release, related to the petitioner’s failure to report to Lincoln immediately, as directed by the parole officer. The second charge, involving the time after the petitioner was apprehended, related to his failure to return to Lincoln upon the expiration of his temporary release period. The charges of harassment and making threats were supported by substantial evidence (see Matter of Lahey v Kelly, 71 NY2d 135, 140 [1987]; People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]; Matter of Alston v Goord, 25 AD3d 852 [2006]). The testimony of the parole officer, who listened to the messages left by the petitioner and made verbatim notes of the messages, was sufficient to support the finding of guilt on those charges. *791The penalties imposed upon the petitioner, as modified upon the administrative appeal, are not “so shocking to one’s sense of fairness as to be excessive” (Matter of Williams v Goord, 37 AD3d 948 [ 2007]). The petitioner’s remaining contentions are not properly before this Court (see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 375 [1975]), and in any event, are without merit. Miller, J.E, Spolzino, Goldstein and McCarthy, JJ., concur.

In a contested probate proceeding, the objectant appeals from a decree of the Surrogate’s Court, Suffolk County (Czygier, Jr., J.), dated September 30, 2005, which, upon, inter alia, an order of the same court dated March 31, 2005 granting the petitioner’s motion for summary judgment dismissing the objections to probate, admitted the will to probate. Ordered that the decree is affirmed, with costs to the petitioner payable by the objectant-appellant personally. Contrary to the objectant’s contention, the petitioner adhered to the court-ordered time frame for filing of dispositive motions, and thus, her motion for summary judgment dismissing the objections to probate was properly considered by the Surrogate’s Court (see CPLR 3212 [a]; cf. Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]; J & A Vending v J.A.M. Vending, 303 AD2d 370, 371-372 [2003]). The Surrogate’s Court properly granted that branch of the petitioner’s motion which was for summary judgment dismissing the objection for improper execution. Where, as here, the attorney draftsman supervised the will’s execution, there is a presumption of regularity that the will was properly executed in all respects (see Matter of Weltz, 16 AD3d 428 [2005]; Matter of Weinberg, 1 AD3d 523 [2003]). In opposition to the petitioner’s prima facie showing that the will was properly executed in ac*792cordance with the formal requirements of EPTL 3-2.1, the objectant failed to raise a triable issue of fact to support her objection for improper execution or relating to the genuineness of the decedent’s signature on the will (see Matter of Weltz, supra; Matter of Weinberg, supra; Matter of Terry, NYLJ, Oct. 8, 1998, at 31, col 4; Matter of Wilson, NYLJ, Aug. 18, 1998, at 22, col 5). The Surrogate’s Court also properly granted that branch of the petitioner’s motion which was for summary judgment dismissing the objection for lack of testamentary capacity. In opposition to the petitioner’s prima facie showing that the decedent was alert and of sound mind at the time of execution and that he knew the nature of the act he was performing, the extent of his property, and the natural objects of his bounty, the objectant failed to raise a triable issue of fact as to the decedent’s alleged lack of testamentary capacity (see Matter of Kumstar, 66 NY2d 691, 692 [1985]; Matter of Weltz, supra; Matter of Spinello, 291 AD2d 406 [2002]; Matter of Herman, 289 AD2d 239 [2001]). Schmidt, J.P., Skelos, Lifson and Covello, JJ., concur.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach, J.), rendered March 25, 2003, convicting him of murder in the second degree, attempted robbery in the first degree (two counts), and assault in the second degree, upon a juiy verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Marras, J.), of that branch of the defendant’s omnibus motion which was to suppress lineup identification evidence. Ordered that the judgment is affirmed. Contrary to the defendant’s contention, any error by defense counsel at the Huntley hearing (see People v Huntley, 15 NY2d 72 [1965]) in waiving arguments regarding the voluntariness of the defendant’s statements to the police, was not so “egregious and prejudicial” as to render counsel’s performance ineffective, thereby compromising the defendant’s right to a fair trial (People v Caban, 5 NY3d 143, 152 [2005]; see People v Hobot, 84 NY2d 1021, 1022 [1995]). No prejudice resulted since there was *793overwhelming evidence of the defendant’s guilt (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Celleri, 29 AD3d 707, 708 [2006]). The hearing court properly declined to suppress the lineup identification evidence (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]; People v Green, 14 AD3d 578 [2005]). While lineup participants should share the same general physical characteristics, there is no requirement that a suspect in a lineup be surrounded by persons who are nearly identical in appearance (see People v Chipp, supra; People v Green, supra). Here, the minor differences in the fill-ins’ skin tones and clothing was insufficient to render the lineup unduly suggestive (see People v Chipp, supra; People v Torres, 309 AD2d 823 [2003]; People v Saunders, 306 AD2d 502 [2003]; People v Miller, 199 AD2d 422 [1993]). The defendant’s contention that the sentencing court improperly imposed a sentence based on crimes of which he was acquitted is unpreserved for appellate review (see CPL 470.05 [2]; People v Rambali, 27 AD3d 582 [2006]; People v Morgan, 27 AD3d 579 [2006]). In any event, this contention is without merit (see People v Morgan, supra). Mastro, J.E, Krausman, Florio and Balkin, JJ., concur.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (McDonald, J.), rendered March 12, 2003, convicting him of assault in the first degree, assault in the second degree, reckless endangerment in the first degree, vehicular assault in the second degree, reckless driving, and leaving the scene of an accident without reporting, upon a jury verdict, and imposing sentence. *794Ordered that the judgment is modified, on the law, by vacating the convictions of assault in the second degree under count five of the indictment and reckless endangerment in the first degree under count six of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed. During the trial, the court observed that a particular juror had been sleeping, and after an in camera interview of this juror, the court concluded that she was “grossly unqualified” (CPL 270.35 [1]), and discharged her from the jury. Contrary to the defendant’s argument on appeal, the discharge of this juror was not an improvident exercise of the trial court’s discretion (id.; see People v Simpkins, 16 AD3d 601 [2005]; People v Rogers, 266 AD2d 481, 482 [1999]; People v Adams, 179 AD2d 764, 765 [1992]). The defendant’s contention that other jurors had been sleeping is unpreserved for appellate review since he neither requested that the court interview any other juror in camera nor moved to dismiss any other juror (see CPL 470.05 [2]; see People v Wright, 16 AD3d 1113 [2005]; People v Fenderson, 203 AD2d 585, 586 [1994]). Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt of vehicular assault in the second degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt for this crime was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Under the circumstances of this case, the defendant’s contention that, during cross-examination, the prosecutor asked the defendant if he thought that the People’s witnesses were untruthful does not require reversal (see People v Allen, 13 AD3d 892, 897 [2004]; People v Swails, 250 AD2d 503 [1998]; People v Overlee, 236 AD2d 133, 138-140 [1997]). Any error regarding such cross-examination was harmless in light of the overwhelming proof of the defendant’s guilt (see People v Gonzalez, 15 AD3d 594 [2005]). The defendant’s contentions regarding the prosecutor’s summation are without merit, as the prosecutor’s remarks were fair comment upon the evidence or were a fair response to arguments presented in the summation by defense counsel (see People v Urena, 24 AD3d 693 [2005]; People v Meyers, 13 AD3d 395 [2004]; People v Warren, 12 AD3d 708 [2004]). The People correctly concede that the convictions of assault in the second degree and reckless endangerment in the first degree must be dismissed as they are inclusory concurrent *795counts of assault in the first degree (see CPL 300.40 [3] [b]; People v Swinton, 21 AD3d 1039, 1040 [2005], mod on other grounds 7 NY3d 776 [2006]; People v Carew, 2 AD3d 742 [2003]). Accordingly, we vacate those convictions and the sentences imposed thereon, and dismiss those counts of the indictment. Upon review of trial counsel’s performance as demonstrated by the entire record, we find that the defendant received meaningful representation (see People v Henry, 95 NY2d 563 [2000]; People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]; People v Thomas, 33 AD3d 1053 [2006]; People v Quiller, 298 AD2d 712, 714 [2002]). The defendant’s contention, raised in point five of his brief, relating to the trial court’s limitation of defense counsel’s summation, is without merit. The defendant’s remaining contentions are unpreserved for appellate review. Rivera, J.E, Santucci, Angiolillo and Dickerson, JJ., concur.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered September 14, 2005, convicting him of grand larceny in the fourth degree, criminal mischief in the fourth degree, criminal possession of stolen property in the fifth degree (two counts), possession of burglar’s tools, and jostling, upon a jury verdict, and imposing sentence. *796Ordered that the judgment is affirmed. The record does not support the defendant’s contentions that the trial judge was “physically or constructively absent from [a] material stage of the proceedings” (People v Mellerson, 15 AD3d 964, 965 [2005]). No juror was questioned or excused in the absence of the court (see People v Toliver, 89 NY2d 843 [1996]; People v Pinkney, 272 AD2d 52 [2000]). The court in its discretion required the jurors to fill out questionnaires which were given to the attorneys before the voir dire. The defense counsel was given an opportunity to review the questionnaires with his client and the attorneys were given an opportunity to confer with each other. After a “discussion off the record,” certain jurors were excused on the record by the court on consent. Under the circumstances, the record does not demonstrate that there was an improper delegation of judicial authority by the trial court (see People v Pulido, 278 AD2d 254 [2000]). Miller, J.P., Spolzino, Goldstein and McCarthy, JJ., concur.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Gazzillo, J.), rendered February 22, 2005, convicting him of criminal possession of a controlled substance *797in the second degree, criminal possession of a controlled substance in the third degree (four counts), criminal possession of a controlled substance in the fourth degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence. Ordered that the judgment is affirmed. On appeal, the defendant contends that the police did not have probable cause on December 11, 2003 to pull over the vehicle in which he was a passenger. Thus, the defendant contends that the court erred in denying that branch of his omnibus motion which was to suppress physical evidence. Contrary to the People’s contention, the defendant adequately preserved this issue for appellate review (see CPL 470.05 [2]). However, as the People correctly contend, the police were not required to have “probable cause” that a crime had been committed in order to pull over the vehicle in which the defendant was a passenger. “It is fundamental that in order to stop a vehicle the police must have a ‘reasonable suspicion’, based on objective evidence, that the occupants were involved in a felony or misdemeanor” (People v Coleman, 183 AD2d 840, 841 [1992]; see CPL 140.50 [1]). The arresting detective had reasonable suspicion that criminality was afoot, thereby justifying the vehicle stop, based upon the detective’s experience in the field and his observation of what appeared to be a narcotics transaction (see People v Alvarez, 100 NY2d 549 [2003]; People v Butler, 293 AD2d 686 [2002]). Once the vehicle was stopped on the basis of reasonable suspicion, the defendant’s evasive, suspicious behavior and lack of cooperation gave rise to probable cause to arrest the defendant (see People v LeSeur, 294 AD2d 518 [2002]). Accordingly, the Supreme Court properly denied that branch of the defendant’s omnibus motion which was to suppress physical evidence. Schmidt, J.R, Skelos, Lifson and Covello, JJ., concur.

Appeal by the defendant from a judgment of the County Court, Rockland County (Resnik, J), rendered April 29, 2004, convicting him of manslaughter in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and sentencing him to concurrent determinate terms of imprisonment of 25 years for manslaughter in the first degree, 15 years for criminal possession of a weapon in the second degree, and 7 years for criminal possession a weapon in the third degree. Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the term of imprisonment for manslaughter in the first degree from 25 years to 18 years and criminal possession of a weapon in the second degree from 15 years to 10 years; as so modified, the judgment is affirmed. *799The trial court’s failure to charge the lesser-included offense of criminally negligent homicide was not error. Because the court charged the lesser-included offense of manslaughter in the second degree, and the defendant was convicted of manslaughter in the first degree, “the court’s refusal to charge the more remote lesser-included offense of criminally negligent homicide cannot be a basis for reversal” (People v McMurry, 30 AD3d 444 [2006]). The sentence imposed was excessive to the extent indicated herein (see People v Suitte, 90 AD2d 80 [1982]). The defendant’s remaining contention is without merit. Crane, J.E, Florio, Fisher and Dickerson, JJ., concur.

Appeal by the defendant from two judgments of the County Court, Suffolk County (Corso, J.), both rendered November 6, 2002, convicting him of assault in the second degree, menacing in the second degree, resisting arrest, and disorderly conduct under indictment No. 1051-01, and rape in the first degree, sodomy in the first degree, robbery in the third degree, and unauthorized use of a motor vehicle in the first degree under indictment number 1505-01, upon jury verdicts, and imposing sentences. Ordered that the judgments are affirmed. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded *800great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]). Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdicts of guilt were not against the weight of the evidence (see People v Romero, supra). Specifically with regard to indictment No. 1505-01, the defendant’s contention that the evidence of his guilt was wholly circumstantial and that the trial court erred in failing to give a special circumstantial evidence charge is unpreserved for appellate review, as the defendant did not request a circumstantial evidence charge or object to the charge as given (see CPL 470.05 [2]; see also People v Brown, 209 AD2d 532, 532 [1994]; People v Burgos, 170 AD2d 689, 689 [1991]). We decline to reach the issue in the exercise of our interest of justice jurisdiction (see CPL 470.15 [3] [c]; [6] [a]). The imposition of consecutive sentences was proper (see People v Day, 73 NY2d 208, 212 [1989]; People v Brathwaite, 63 NY2d 839, 843 [1984]; People v Almeda, 10 AD3d 367, 368 [2004]; People v Clark, 191 AD2d 576 [1993]). Furthermore, the sentences imposed were not excessive (see People v Suitte, 90 AD2d 80 [1982]). The defendant’s remaining contentions are without merit. Miller, J.E, Spolzino, Ritter and Lifson, JJ., concur.

Appellants appeal from an award in a heart case which established accident and death resulting therefrom. The decedent, who had been suffering from a pre-existing heart condition, was a shoe salesman working for the employer herein. On February 1, 1957, there was a heavy snowstorm as the result of which business was very slow and the decedent, together with others, spent most of the day shifting shoe boxes to various locations. His wife testified when he arrived home that evening he was ashen white, complained of pains in his chest, and he told her of the unusual work he had been doing at the store on *579that day. He ate very little, went to bed early and the next morning his wife suggested that he not go to work. That day, Saturday, they were busy in the store and while in the performance of his duties he collapsed, was taken in an ambulance to a hospital where he died on February 25, 1957. Certain employees of the store testified as to the type of work which the decedent did on the days involved and the board determined that as a result of the extra exertion on both dates, he sustained an accidental injury. The cause of death resulting from the heart attack was a myocardial coronary infarction. The autopsy performed on February 25 established that the infarct was about three weeks old and the doctor for the claimant testified that the activities which decedent performed on February 1 and 2 aggravated the underlying coronary condition and precipitated the condition which caused his death. The doctor for the carrier admitted that the decedent had suffered an acute coronary occlusion on February 2, 1957 but said it was due to natural progression of a pre-existing condition. The board has resolved this factual medical question in favor of the claimant and there is substantial testimony to support its finding. Decision and award affirmed, with costs to the Workmen’s Compensation Board. Bergan, P. J., Coon, Gibson and Herlihy, JJ., concur; Reynolds, J., dissents, and votes to reverse.

Appeal from an order of the County Court of Warren County which denied defendant’s motion in the nature of a writ of error coram nobis addressed to his conviction of assault in the second degree. Defendant (1) attacks the sufficiency of the indictment, (2) claims error in the charge and (3) finally asserts that a prior conviction which became erroneous as to sentence (when a conviction preceding that was vacated) in some way vitiates his latest conviction and sentence as a multiple offender or entitles him to some amelioration thereof. Upon the papers before us on this appeal these contentions appear groundless. In any event, each supposed defect appears upon the face of the record and, therefore, none affords a basis for coram nobis. (People v. Sullivan, 3 N Y 2d 196; and as to supposed defective indictment see People v. Fortson, 7 A D 2d 139, citing People v. Eastman, 306 N. Y. 658.) It seems not amiss to remark that defendant’s conviction was affirmed in this court and aspects of his ease were also considered on another appeal. (People v. Gifford, 2 A D 2d 634; People v. Gifford, 7 A D 2d 787.) Further, defendant’s third contention, above indicated, has been expressly determined adversely to him by this court on one occasion and inferentially on at least one other. (People v. Gifford, 2 A D 2d 642; People v. Gifford, 8 A D 2d 909; and see People v. Kowalsky, 2 A D 2d 938, affd. 2 N Y 2d 949.) Order affirmed. Bergan, P. J., Coon, Gibson and Reynolds, JJ., concur.

In an action, inter alia, to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated August 31, 2005, as denied those branches of its motion which were, in effect, pursuant to CPLR 3211 (a) (5) to *803dismiss the causes of action to recover damages for breach of contract, tortious interference with contract, and unjust enrichment, and pursuant to CPLR 3211 (a) (7) to dismiss the cause of action to recover damages for unfair competition and granted the plaintiffs cross motion for leave to amend the complaint to assert a cause of action based on promissory estoppel. Ordered that the order is affirmed insofar as appealed from, with costs. We agree with the Supreme Court that, although an alleged oral agreement regarding the payment of certain commissions to the plaintiff was not, by its terms, capable of being performed within one year (see General Obligations Law § 5-701 [a] [1]; Zupan v Blumberg, 2 NY2d 547, 550 [1957]), a November 22, 2004 letter from the defendant’s counsel to the plaintiff set forth all of the agreement’s essential terms, so as to defeat those branches of the defendant’s motion which were, in effect, pursuant to CPLR 3211 (a) (5) to dismiss the causes of action sounding in breach of contract, tortious interference with contract, and unjust enrichment as barred by the statute of frauds (see Whitehorn Assoc. v One Ten Brokerage, 264 AD2d 516, 517 [1999]). “On a CPLR 3211 motion made against a complaint,” including a motion pursuant to CPLR 3211 (a) (5) to dismiss a complaint based on the statute of frauds, “a court must take the allegations as true and resolve all inferences which reasonably flow therefrom in favor of the pleader” (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998], citing Sanders v Winship, 57 NY2d 391, 394 [1982]). “In opposition to such a motion, a plaintiff may submit affidavits ‘to remedy defects in the complaint’ and ‘preserve inartfully pleaded, but potentially meritorious claims.’ Though limited to that purpose, such additional submissions of the plaintiff, if any, will similarly be ‘given their most favorable intendment’ ” (Cron v Hargro Fabrics, supra at 366 [citations omitted]; see O’Keeffe v Fava, 278 AD2d 393, 394 [2000]). Giving the plaintiffs submissions their most favorable intendment, the letter can, through reasonable implication (cf. Scheck v Francis, 33 AD2d 91, 96 [1969], affd 26 NY2d 466 [1970]), support the plaintiffs contention that the defendant agreed to pay the commissions for as long as the defendant continued to receive “residual” payments on certain accounts procured by the plaintiff (see Schleger v Treiber Group, 303 AD2d 335, 335-336 [2003]; Whitehorn Assoc. v One Ten Brokerage, supra at 517). Accordingly, the Supreme Court correctly denied that branch of the defendant’s motion which was to dismiss the cause of action to recover damages for breach of contract (see CPLR 3211 [a] [5]; O’Keeffe v Fava, supra). *804In addition, to the extent that the complaint alleges that the defendant falsely held itself out to third parties as having purchased or acquired the plaintiff in order to “poach” the plaintiffs accounts, it states a cognizable cause of action to recover damages for unfair competition (see White Studio, Inc. v Dreyfoos, 221 NY 46, 49 [1917]). Thus, the Supreme Court correctly denied that branch of the defendant’s motion which was to dismiss that cause of action (see CPLR 3211 [a] [7]). Where, as here, there would be no undue prejudice to the defendant, the Supreme Court providently exercised its discretion in granting the plaintiffs cross motion for leave to amend the complaint to assert a cause of action based on promissory estoppel (see Sclafani v City of New York, 271 AD2d 430, 431 [2000]; cf. Scarangello v State of New York, 111 AD2d 798, 799 [1985]). The defendant’s remaining contentions are without merit. Crane, J.P, Skelos, Covello and Dickerson, JJ., concur.

In an action to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Dutchess County (Dolan, J.), entered April 19, 2006, which, upon an order of the same court dated March 29, 2006 granting the plaintiffs motion for summary judgment, is in favor of the plaintiff and against it in the principal sum of $214,200. Ordered that the judgment is modified, on the law, by adding thereto a provision prohibiting enforcement of the judgment against any asset of the defendant exclusive of pooled funds in accordance with the terms and conditions of the 1990 payment agreement and pursuant to paragraph 4 (C) of the defendant’s second amendment to the restated offering plan and further limiting the plaintiffs enforcement, in the alternative, to the plaintiffs right of reacquisition of the real estate as set forth in the 1990 payment agreement; as so modified, the judgment is affirmed, without costs or disbursements. *805In this action to recover damages for breach of contract, the plaintiff, the executor of her mother’s estate, seeks to recover from the defendant the sum of $214,200, which was the entrance fee paid by the plaintiffs mother and father into a retirement community owned by the defendant’s predecessor. The Supreme Court properly determined that, in response to the plaintiffs prima facie establishment of her entitlement to judgment as a matter of law, the defendant failed to raise a triable issue of fact in connection with its allegation that a 1990 payment agreement (hereinafter the payment agreement) and a 1990 residency agreement (hereinafter the residency agreement) were modified by the subsequent acts of the governing body of the retirement community. The record establishes that the plaintiffs mother Charlotte Johnston did not agree to amend or modify the payment agreement to reduce her entitlement under that agreement from $214,200 to $149,940. The defendant, the present owner of the retirement community, failed to demonstrate that the resident’s association had any authority to amend or modify the termination payment agreement with the retirement community sponsors. Johnston refused to execute the proposed amendment to the payment agreement and the resident’s association was without authority to amend or modify an agreement to which it was not a party. The payment agreement and the residency agreement each included a nonrecourse clause, which provided that in the event of a default, Johnston’s sole remedy was the right of reacquisition of the real estate, and that Johnston was precluded from pursuing a judgment of personal liability against the defendant or the defendant’s assets. Additionally, pursuant to the payment agreement, the termination payment to Johnston was to be made only when and to the extent that certain pooled funds held by the defendant were available. Those provisions clearly and unequivocally precluded any recovery against the assets of the defendant exclusive of the pooled funds (see Gupta Realty Corp. v Gross, 251 AD2d 544, 545 [1998]; Bronxville Knolls v Webster Town Ctr. Partnership, 221 AD2d 248 [1995]). Therefore, the Supreme Court erred in awarding judgment to the plaintiff without limiting the enforcement of the judgment to pooled funds, if any, maintained in escrow by the defendant for the payment of the termination payment of $214,200 due and owing to Johnston in accordance with the payment agreement and section 4 (C) of the second amendment to the restated offering plan. Mastro, J.P., Florio, Garni and McCarthy, JJ., concur.

*806In an action, inter alia, pursuant to Lien Law article 3-A, the plaintiffs appeal (1) from an order of the Supreme Court, Nassau County (Warshawsky, J.), dated September 28, 2005, which granted the motion of the defendant Bruce Fahey, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the complaint, and (2), as limited by their brief, from so much of an order of the same court dated January 12, 2006, as denied that branch of their motion which was for leave to renew. Ordered that the order dated September 28, 2005 is reversed, on the law and in the exercise of discretion, and the motion of the defendant Bruce Fahey, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the complaint is denied; and it is further, Ordered that the plaintiffs’ time to seek class certification pursuant to Lien Law § 77 (1) and CPLR article 9 is extended until 60 days after service upon them of a copy of this decision and order; and it is further, Ordered that the appeal from the order dated January 12, 2006 is dismissed as academic in light of our determination on the appeal from the order dated September 28, 2005; and it is further, Ordered that one bill of costs is awarded to the plaintiffs payable by the respondents appearing separately and filing separate briefs. In this action to enforce a Lien Law article 3-A trust, the defendant Bruce Fahey moved, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action. He contended that the complaint should be dismissed because the plaintiffs failed to seek class certification as required by Lien Law § 77 (1). The plaintiffs opposed the motion, arguing that Fahey had not given the court advance notice of his intention to make the motion, as required by rule 24 of the Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70; hereinafter rule 24). The Supreme Court disregarded Fahey’s failure to comply with rule 24 and granted his motion to dismiss the complaint. We reject the plaintiffs’ contention that the court should have denied the motion on the ground that Fahey failed to comply with rule 24. However, the court erred in granting Fahey’s motion without affording the plaintiffs an opportunity to comply with Lien Law § 77 (1) by seeking class certification. Although an action to enforce a trust pursuant to Lien Law *807§ 77 must be brought as a class action, the failure to do so is not fatal, and may be cured (see Brooklyn Navy Yard Dev. Corp. v J.M. Dennis Constr. Corp., 12 AD3d 630 [2004]; Atlas Bldg. Sys. v Rende, 236 AD2d 494 [1997]; Tri-City Elec. Co. v People, 96 AD2d 146 [1983], affd 63 NY2d 969 [1984]; Scriven v Maple Knoll Apts. 46 AD2d 210 [1974]; Higgins-Kieffer, Inc. v State of New York, 165 Misc 2d 425 [1995]). Accordingly, Fahey’s motion should have been denied and the plaintiffs granted an extension of time to seek class certification pursuant to Lien Law § 77 (1) and CPLR article 9. In light of our determination on the appeal from the order dated September 28, 2005, the appeal from the order dated January 12, 2006, denying that branch of the plaintiffs’ motion which was for leave to renew, has been rendered academic. Schmidt, J.E, Santucci, Krausman and Balkin, JJ., concur.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Westchester County (Donovan, J), dated September 27, 2004, as, upon a decision of the same court (Shapiro, J.), dated August 5, 2004, made after a nonjury trial, awarded him only a 25% share of the marital assets and denied him an award of maintenance. Ordered that the judgment is affirmed insofar as appealed from, with costs. Contrary to the husband’s contention, the Supreme Court did not err in awarding him only a 25% share of the marital assets. Equitable distribution does not necessarily mean equal distribution, and it is evident that the Supreme Court properly considered the relevant statutory factors in fashioning the distribution in the instant case (see Falgoust v Falgoust, 15 AD3d 612 [2005]). The parties’ marriage was of relatively short duration, both parties are relatively young and healthy, and there are no children of the marriage. Furthermore, the husband’s financial contributions to the marriage were minimal. Thus, the court properly awarded him only a 25% share of the marital as*808sets (see DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]; Greene v Greene, 250 AD2d 572 [1998]; Moody v Moody, 172 AD2d 730 [1991]; Barnes v Barnes, 106 AD2d 535 [1984]). Contrary to the husband’s further contention, the Supreme Court properly denied him an award of maintenance. The amount and duration of maintenance to be awarded is a matter committed to the sound discretion of the trial court (see Keane v Keane, 25 AD3d 729 [2006]). Every case of maintenance must be considered on its unique facts (see Popelaski v Popelaski, 22 AD3d 735 [2005]). Here, the marriage was relatively short, and both parties are relatively young and healthy. Although the husband earned substantially less income than the wife, he has three college degrees. An award of maintenance is not determined by actual earnings, but rather by earning capacity (see Aborn v Aborn, 196 AD2d 561 [1993]). The husband quit many jobs of his own volition, despite the wife’s wishes that he maintain steady employment. Furthermore, he received a distributive award of 25% of the marital assets. Thus, the court properly denied him an award of maintenance (cf. Wexler v Wexler, 34 AD3d 458 [2006]; Keane v Keane, supra; Bourne v Bourne, 237 AD2d 317 [1997]). The husband’s remaining contention regarding enforcement of an alleged agreement dated May 14, 1996 is not properly before us as he raises it for the first time on appeal (see McNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544 [2006]). Miller, J.E, Spolzino, Ritter and Dillon, JJ., concur.

In an action to recover damages for breach of contract, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Colabella, J.), entered January 4, 2006, which granted the defendant’s motion for summary judgment dismissing the complaint, and (2) a judgment of the same court dated April 18, 2006, which, upon the order, dismissed the complaint. Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is affirmed; and it is further, *809Ordered that one bill of costs is awarded to the defendant. The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on appeal from the judgment (see CPLR 5501 [a] [1]). The plaintiff commenced this action to recover damages for breach of contract after the defendant, upon the termination of the plaintiffs employment, denied his demand for payment of the monetary value of his accrued “compensatory time.” The Supreme Court granted the defendant’s motion for summary judgment dismissing the complaint. We affirm. In general, in the absence of a pre-existing contractual provision or legislative enactment, a municipal employee is not entitled to recover the monetary value of accrued credits such as “compensatory time” (see General Municipal Law § 92 [1]; Matter of Karp v North Country Community Coll., 258 AD2d 775 [1999]; Matter of Rubinstein v Simpson, 109 AD2d 885 [1985]; Dow v Board of Trustees of Farmingdale Pub. Lib., 75 AD2d 632 [1980]). Here, in opposition to the defendant’s prima facie demonstration of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact. Thus, the defendant was properly granted summary judgment dismissing the complaint. The plaintiffs remaining contentions are not properly before this Court or lack merit. Miller, J.P, Spolzino, Ritter and Dillon, JJ., concur.

In an action to foreclose a mortgage, Morgan Stanley Dean Witter Credit Corporation, as servicer for Wells Fargo Bank Minnesota, N.A., formerly known as Norwest Bank Minnesota, appeals from an order of the Supreme Court, Queens County *810(LeVine, J.), dated November 22, 2005, which denied its motion for leave to renew and reargue that branch of its prior cross motion which was for summary judgment on the affirmative defense of equitable subrogation insofar as asserted by Wells Fargo Bank Minnesota, N.A., formerly known as Norwest Bank Minnesota, which was denied by order of the same court dated September 26, 2005. Ordered that the appeal from so much of the order as denied that branch of the motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further, Ordered that the order is reversed insofar as reviewed, on the law and in the exercise of discretion, that branch of the motion which was for leave to renew is granted, upon renewal, so much of the order dated September 26, 2005, as denied that branch of the prior cross motion which was for summary judgment on the affirmative defense of equitable subrogation is vacated, and that branch of the prior cross motion which was for summary judgment on the affirmative defense of equitable subrogation is granted; and it is further, Ordered that one bill of costs is awarded to the nonparty appellant payable by the plaintiff Bank One and the defendant Provident Bank of Maryland, appearing separately and filing separate briefs. On or about February 29, 1996 the predecessor in interest of the defendant Provident Bank of Maryland (hereinafter Provident) extended a loan in the principal amount of $147,847 to the defendant Mon Leang Mui (hereinafter Mui) in exchange for a mortgage on his property located at 151-15 25th Drive in Whitestone. The respective note and mortgage were subsequently assigned to Provident. On or about March 1, 1996 the predecessor in interest of the plaintiff Bank One extended a loan in the amount of $296,000 to Mui in exchange for a mortgage on the subject property. Shortly thereafter, Bank One contended that Mui drew the sum of $169,258.76 from the Bank One mortgage loan in the form of a check and advanced it to satisfy a mortgage senior to the Provident mortgage. On March 21, 1996 the Provident mortgage was recorded. On or about April 18, 1996 the predecessor in interest of Wells Fargo Bank Minnesota, N.A., formerly known as Norwest Bank Minnesota (hereinafter Norwest) extended a loan in the amount of $352,500 to Mui in exchange for a mortgage on the subject property. Sometime between April 18, 1996 and April 24, 1996 Mui allegedly drew $76,892.80 from the Norwest mortgage loan in the form of a check and advanced it to satisfy a mortgage senior *811to all other mortgages. On April 24, 1996 Bank One recorded, its mortgage. On May 7, 1996 Norwest recorded its mortgage. Following Mui’s default on the three separate mortgages, the mortgagees commenced three separate foreclosure actions which were joined for trial, but not consolidated. In the instant action commenced by Bank One, the nonparty appellant Morgan Stanley Dean Witter Credit Corporation (hereinafter Morgan Stanley), as servicer for Norwest, cross-moved, inter alia, for summary judgment on the affirmative defense of equitable subrogation insofar as asserted by Norwest. By order dated September 26, 2005, the Supreme Court denied the cross motion. Subsequently, Morgan Stanley moved for leave to renew and reargue that branch of its prior cross motion which was for summary judgment on the affirmative defense of equitable subrogation. By order dated November 22, 2005, the Supreme Court denied the motion for leave to renew and reargue. To the extent that this appeal is from so much of the order dated November 22, 2005 as denied that branch of Morgan Stanley’s motion which was for leave to reargue, no appeal lies from an order denying reargument (see Vandewinckel v Northport/East Northport Union Free School Dist., 24 AD3d 432, 433 [2005]). However, under the circumstances here, the Supreme Court should have granted that branch of the motion which was for leave to renew. “While it is generally true that a motion to renew must be based on newly-discovered facts, courts have discretion to grant this relief in the interest of justice, although not all the requirements for renewal are met” (Strong v Brookhaven Mem. Hosp. Med. Ctr., 240 AD2d 726, 726-727 [1997]; see J.D. Structures v Waldbaum, 282 AD2d 434, 436 [2001]; Sorto v South Nassau Community Hosp., 273 AD2d 373, 373-374 [2000]; Goyzueta v Urban Health Plan, 256 AD2d 307 [1998]; Liberty Mut. Ins. Co. v Allstate Ins. Co., 237 AD2d 260, 262 [1997]). Under the circumstances of this case, that branch of Morgan Stanley’s motion which was for leave to renew should have been granted and upon renewal, that branch of its prior cross motion which was for summary judgment on the affirmative defense of equitable subrogation also should have been granted. The doctrine of equitable subrogation applies “where the funds of a mortgagee are used to satisfy the lien of an existing, known incumbrance when, unbeknown to the mortgagee, another lien on the property exists which is senior to his but junior to the one satisfied with his funds” (King v Pelkofski, 20 NY2d 326, 333-334 [1967]). “In order to avoid the unjust enrichment *812of the intervening, unknown lienor, the mortgagee is entitled to be subrogated to the rights of the senior incumbrance” (id.; see Roth v Porush, 281 AD2d 612, 614 [2001]; Pawling Sav. Bank v Hunt Props., 225 AD2d 678, 680 [1996]). Here, based on extensive documentary proof demonstrating that Mui drew a $76,892.80 check from the Norwest mortgage loan and advanced that check to satisfy the senior-most mortgage, and that Norwest did not have notice of the yet-to-be recorded Bank One mortgage, Morgan Stanley established Norwest’s entitlement to be equitably subrogated in the amount of $76,892.80 over Bank One. However, since Norwest did have notice of the Provident mortgage, it cannot recover these funds before Provident recovers the balance on its mortgage loan (see R.C.P.S. Assoc. v Karam Devs., 238 AD2d 492, 493 [1997]; Pawling Sav. Bank v Hunt Props., supra). Consequently, in regard to the priority of the respective mortgages, equity requires that first, Bank One receives the amount drawn from its mortgage loan to satisfy the mortgage senior to the Provident mortgage; second, Provident receives the balance on its mortgage loan; third, Norwest receives the amount drawn from its mortgage to satisfy the senior-most mortgage; fourth, Bank One receives the balance on its mortgage loan; and fifth, Norwest receives the balance on its mortgage loan. The final figures, owed to the respective mortgages including interest and costs as set forth in the respective mortgage instruments, will be ascertained and computed by an appointed referee, along with the question of how the subject property should be sold. The remaining contentions of Bank One and Provident are without merit. Rivera, J.E, Santucci, Angiolillo and Dickerson, JJ., concur.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated July 12, 2005, as granted that branch of the motion, in effect, of all defendants except Donald L. Bunsis, which was for summary judgment dismissing the complaint insofar as asserted against the defendants Donald L. Bunsis and Company, Barry E Bunsis, sued herein as Barry A. Bunsis, and Michael 0. Bunsis. Ordered that the order is affirmed insofar as appealed from, with costs. The plaintiff commenced this action, inter alia, to recover damages for breach of contract based on the alleged failure of the defendants to repay a series of loans. The plaintiff alleged that between 1989 and 1993, she made a series of loans to Donald L. Bunsis, who received the loans on behalf of the defendant Donald L. Bunsis and Company (hereinafter the partnership), a public accounting firm that consisted of Donald L. Bunsis and his three sons, the defendants Barry E Bunsis, sued herein as Barry A. Bunsis, Howard Bunsis, and Michael Bunsis. The plaintiff contends that she made these loans to the partnership, and not to Donald L. Bunsis individually, so that the partnership could invest in business ventures. During the pendency of this litigation, Donald L. Bunsis filed for bankruptcy resulting in a stay of the proceedings as to him and a discharge of his obligations to the plaintiff. A motion was made by, in effect, all of the defendants except Donald L. Bunsis for summary judgment dismissing the complaint insofar as asserted against the moving defendants, on the ground that they were not liable to the plaintiff, as Donald *814L. Bunsis did not have either actual or apparent authority to enter into the loan agreements with the plaintiff on the partnership’s behalf. The motion was granted. On appeal, the plaintiff challenges only the grant of summary judgment in favor of the partnership, Barry E Bunsis, sued herein as Barry A. Bunsis, and Michael Bunsis (hereinafter collectively the respondents). Partnerships are governed by the laws of agency (see Partnership Law § 4 [3]). “A partner is the agent of the partnership and his acts may be adopted and enforced by the partnership as its own” (Bennett Dairy v Putney, 46 AD2d 1010 [1974]). However, “it is only when it can be seen that a partner is, in fact, acting as an agent of his copartners, that he binds them” (Bienenstok v Ammidown, 155 NY 47, 58 [1898]). The respondents established their prima facie entitlement to summary judgment by demonstrating that the loans were made to Donald L. Bunsis individually, and that they did not have any communication with the plaintiff which would give rise to the appearance and reasonable belief that Donald L. Bunsis possessed apparent authority to enter into the loan agreements on their behalf (see Lindenbaum v Albany Post Prop. Assoc., 297 AD2d 661, 662-663 [2002]; Morgold, Inc. v ACA Galleries, 283 AD2d 407, 408 [2001]). In opposition, the plaintiff failed to raise a triable issue of fact as to whether there was apparent authority (see Zuckerman v City of New York, 49 NY2d 557 [1980]). The plaintiff’s own affidavit revealed that she relied on her conversations with Donald L. Bunsis and never spoke to the respondents. Moreover, the plaintiff failed to make reasonable inquiries into Donald L. Bunsis’s actual authority (see Lindenbaum v Albany Post Prop. Assoc., supra; Morgold, Inc. v ACA Galleries, supra). The plaintiff’s contention that the loans were apparently made in the usual course of the business of a public accounting firm and, therefore, binding on the respondents, is without merit (cf. Partnership Law § 20 [1]). The partnership agreement did not give Donald L. Bunsis the authority to borrow money on the partnership’s behalf. Nor is borrowing money for the purpose of investing in other business ventures an act apparently made “for the carrying on . . .in the usual way” the business of a public accounting firm (see Partnership Law § 20 [2]; Riley v Larocque, 163 Misc 423, 431 [1937]). Mastro, J.E, Florio, Garni and McCarthy, JJ., concur.

In an action, inter alia, to recover damages for fraud and breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Berler, J.), dated December 1, 2005, as denied, as premature, their motion for summary judgment dismissing the complaint. Ordered that the order is affirmed insofar as appealed from, with costs. The plaintiffs were in default on their mortgage. In an effort to save their property, the plaintiffs entered into a sale-leaseback arrangement with the defendants. As part of that arrangement, the plaintiffs agreed to sell their property to the defendants. The plaintiffs also agreed to lease the property from the defendant N.Y.C. Premier Properties, Inc., for monthly rent of $2,150. In addition, the lease agreement provided the plaintiffs with an option to purchase the property at the end of the one-year lease period. Pursuant to the arrangement, the plaintiffs conveyed the property to defendant Fortini and signed the lease agreement. Subsequently, the plaintiffs defaulted on the lease payments and, after facing possible eviction, vacated the property. The plaintiffs commenced this action alleging that the defendants fraudulently induced them into executing the sale and lease of their property by misrepresenting that the arrangement was a means of refinancing the property. The plaintiffs further alleged that, if a valid contract of sale existed, the defendants breached it by failing to pay to them sums that were due under the sales contract. The defendants moved for sum*816mary judgment dismissing the complaint, and the Supreme Court, inter alia, denied the defendants’ motion as premature, noting further discovery was warranted. Although the defendants demonstrated their prima facie entitlement to summary judgment dismissing the complaint (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), the Supreme Court properly denied the motion as premature (see Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637 [2006]; Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 792-793 [1988]). “CPLR 3212 (f) permits a party opposing summary judgment to obtain further discovery when it appears the facts supporting the position of the opposing party exist but cannot be stated” (Juseinoski v New York Hosp. Med. Ctr. of Queens, supra at 637). “This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion” (Baron v Incorporated Vil. of Freeport, supra at 793). Here, the plaintiffs raised issues warranting further discovery. Accordingly, the Supreme Court properly denied, as premature, the defendants’ motion for summary judgment dismissing the complaint. Miller, J.P, Spolzino, Goldstein and McCarthy, JJ., concur.

In a matrimonial action in which the parties were divorced by judgment dated April 24, 2002, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Sunshine, J.), dated January 13, 2006, as, upon a decision of the same court dated December 6, 2005, made after a hearing, granted that branch of the plaintiffs motion which was to modify the judgment of divorce by awarding physical custody of the parties’ infant child to him. Ordered that on the Court’s own motion, the notice of appeal from the decision is deemed a premature notice of appeal from the order (see CPLR 5520 [c]); and it is further, Ordered that the order is affirmed insofar as appealed from, with costs. The record in this case, reached after a full evidentiary hearing, provides a sound and substantial basis for the Supreme Court’s determination (see Eschbach v Esehbach, 56 NY2d 167, 173-174 [1982]; Matter of Bowe v Robinson, 23 AD3d 555, 556 [2005]; Matter of Lynch v Acey, 281 AD2d 483 [2001]). Although both parties appear to be loving and capable parents, the defendant mother failed to meet her burden of establishing, by a *817preponderance of the evidence, that the best interests of the child warranted relocating him to Norway from New York (see Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]; Matter of Belbol v Stevenson, 23 AD3d 555 [2005]). Further, the plaintiff father established that the totality of the circumstances warranted modifying the judgment of divorce to the extent of awarding him physical custody of the child (see Eschbach v Eschbach, supra at 174; cf. Matter of Bowe v Robinson, supra at 556-557). Crane, J.P., Skelos, Covello and Dickerson, JJ., concur.

In a consolidated action to recover damages for personal injuries, the plaintiff Mark Bluth appeals from so much of an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated January 3, 2006, as granted those branches of the separate motions of the defendant WorldOmni Financial Corp. and the defendant Edouard Melnikov which were for summary judgment dismissing the complaint insofar as asserted by him on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the separate motions of the defendant WorldOmni Financial Corp. and the defendant Edouard Melnikov which were for summary judgment dismissing the complaint insofar as asserted by the plaintiff Mark Bluth are denied. The defendants WorldOmni Financial Corp. and Edouard Melnikov failed to make prima facie showings that the appellant did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In support of their separate motions, they relied upon, inter alia, the affirmed medical report of Dr. Edward Toriello, an examining orthopedic surgeon. In his report, he set forth the results of the appellant’s various *818magnetic resonance imaging reports, including those of the appellant’s lumbar spine, which revealed that the appellant had, inter alia, bulging discs at L3 through SI. When setting forth his range of motion findings concerning the appellant’s lumbar spine, he noted “decreased flexion of 70 degrees,” yet did not compare that finding to the normal range of motion (see Harman v Busch, 37 AD3d 537 [2007]; Iles v Jonat, 35 AD3d 537, 538 [2006]; Mirochnik v Ostrovskiy, 35 AD3d 413 [2006]; Kavanagh v Singh, 34 AD3d 744, 745-746 [2006]; Agathe v Tun Chen Wang, 33 AD3d 737, 738 [2006]; Mondi v Keahon, 32 AD3d 506, 506-507 [2006]; Benitez v Mileski, 31 AD3d 473, 474 [2006]). Moreover, while he indicated that there was a limitation in the range of motion, absent a comparative quantification of that limitation to what is deemed normal, it cannot be concluded that the decreased range of motion is mild, minor, or slight so as to be considered insignificant within the meaning of the no-fault statute (see Harman v Busch, supra; Iles v Jonat, supra at 538; McCrary v Street, 34 AD3d 768, 769 [2006]; Whittaker v Webster Trucking Corp., 33 AD3d 613 [2006]; Yashayev v Rodriguez, 28 AD3d 651, 652 [2006]; Kaminsky v Waldner, 19 AD3d 370, 371 [2005]; see also Gaddy v Eyler, supra at 957; Licari v Elliott, 57 NY2d 230, 236 [1982]). Since the defendants failed to meet their respective burdens, it is unnecessary to consider whether the papers submitted by the appellant in opposition were sufficient to raise a triable issue of fact (see Harman v Busch, supra; Iles v Jonat, supra at 538; McCrary v Street, supra at 769; Whittaker v Webster Trucking Corp., supra at 613). Schmidt, J.E, Krausman, Goldstein, Covello and Angiolillo, JJ., concur.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated April 24, 2006, which denied their motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted. The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of his fall (see Rodriguez v Cafaro, 17 AD3d 658 [2005]; Arbusto v Amerada Hess Corp., 16 AD3d 527, 528 [2005]; Dapp v Larson, 240 AD2d 918, 918-919 [1997]). In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiffs expert submitted in op*819position to the motion was based on speculation and was therefore insufficient to raise a triable issue of fact (see Tower Ins. Co. v Allstate Ins. Co., 31 AD3d 630, 631 [2006]). Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint. In light of our determination, we need not reach the defendants’ remaining contentions. Prudenti, EJ., Fisher, Garni and McCarthy, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered February 1, 2006, which granted that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) and denied, as academic, her motion for summary judgment on the issue of liability, and (2), as limited by her brief, from so much of an order of the same court dated May 31, 2006 as denied that branch of her motion which was for leave to renew her opposition to the defendant’s cross motion. Ordered that the order entered February 1, 2006 is reversed, on the law, with costs, that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint is denied, and the matter is remitted to the Supreme Court, Nassau County, for a determination of the plaintiffs motion for summary judgment on the issue of liability on the merits; and it is further, Ordered that the appeal from the order dated May 31, 2006 is dismissed as academic in light of our determination on the appeal from the order entered February 1, 2006. With respect to the order entered February 1, 2006, the defendant failed, on his cross motion, to establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant *820relied on the affirmed medical report of his examining orthopedist, which noted limitations in the plaintiff’s lumbar spine range of motion, specifically during sitting and supine straight leg raising testing, that were not adequately quantified or qualified so as to establish the absence of a significant limitation of motion (see Dzaferovic v Polonia, 36 AD3d 652 [2007]; McCrary v Street, 34 AD3d 768, 769 [2006]; Iles v Jonat, 35 AD3d 537, 538 [2006]; Whittaker v Webster Trucking Corp., 33 AD3d 613 [2006]; Kaminsky v Waldner, 19 AD3d 370 [2005]). Since the defendant failed to satisfy his prima facie burden on his cross motion, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition to the defendant’s cross motion raised a triable issue of fact (see Dzaferovic v Polonia, supra; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). In light of this determination, the plaintiff’s appeal from the order dated May 31, 2006 has been rendered academic. The Supreme Court, having granted the defendant’s cross motion, denied, as academic, the plaintiffs motion for summary judgment on the issue of the defendant’s liability for the happening of the subject accident. Therefore, we remit the matter to the Supreme Court, Nassau County, to determine the plaintiffs motion on the merits (see Torres v Performance Auto. Group, Inc., 36 AD3d 894 [2007]; Campbell v Vakili, 30 AD3d 457 [2006]; Korpalski v Lau, 17 AD3d 536, 538 [2005]). Schmidt, J.E, Krausman, Goldstein, Covello and Angiolillo, JJ., concur.

In an action to recover damages for personal injuries, the defendants Bobo Robo, Inc., doing business as Regents, Edward Hardy, Pat Illig, and Michael Ferreri appeal (1) from so much of an order of the Supreme Court, Kings County (Silverman, J.), dated September 12, 2005, as granted that branch of the plaintiffs motion which was to strike the answer of the defendant Edward Hardy, and (2) from an undated order of the same court which denied their motion for leave to renew and reargue. Ordered that the appeals by the defendants Bobo Robo, Inc., doing business as Regents, Pat Illig, and Michael Ferreri from *821the order dated September 12, 2005, are dismissed, as they are not aggrieved by that order; and it is further, Ordered that the appeal from so much of the undated order as denied that branch of the motion which was for leave to reargue is dismissed, as no appeal lies from an order denying re-argument; and it is further, Ordered that the order dated September 12, 2005 is affirmed insofar as appealed from; and it is further, Ordered that the undated order is affirmed insofar as reviewed; and it is further, Ordered that one bill of costs is awarded to the plaintiff. The plaintiff allegedly suffered serious injuries in 1998 when he fell over the ledge of a terrace at a bar owned by the defendant Bobo Robo, Inc., doing business as Regents (hereinafter Regents), after being chased and threatened by patrons, while Regents employees, including the defendant Edward Hardy, refused to help. Approximately three years later, the plaintiff commenced this action and an answer was interposed on behalf of Regents, Hardy, and two other former employees of Regents by defense counsel appointed by Regents’ insurance carrier. After Hardy failed to appear for a deposition after three court orders, including a “so-ordered” stipulation dated September 26, 2002, the Supreme Court granted the plaintiffs motion to strike Hardy’s answer and thereafter denied the defendants’ motion, inter alia, for leave to renew. “The nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court” (Reyes v Vanderbilt, 303 AD2d 391 [2003], citing Patterson v New York City Health & Hosps. Corp. [Queens Hosp. Ctr.], 284 AD2d 516 [2001]). Before invoking the drastic remedy of striking a pleading, however, the “court must determine that the party’s failure to comply with a disclosure order was the result of willful, deliberate, and contumacious conduct or its equivalent” (Reyes v Vanderbilt, supra at 392; see CPLR 3126; Viteritti v Gelfand, 289 AD2d 566, 567 [2001]; Solomon v Horie Karate Dojo, 283 AD2d 480, 480-481 [2001]; Cianciolo v Trism Specialized, Carriers, 274 AD2d 369, 370 [2000]). Here, the Supreme Court providently exercised its discretion in striking Hardy’s answer based upon his failure to appear for court-ordered depositions on three occasions. The willful and contumacious character of Hardy’s failure to appear can be inferred from his repeated failure to comply with the court orders directing his appearance, all of which were entered upon *822his counsel’s consent, and the lack of an adequate excuse for his failure to appear (see Xina v City of New York, 13 AD3d 440, 441 [2004]; Kroll v Parkway Plaza Joint Venture, 10 AD3d 633 [2004]; Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339, 340 [2004]; Patterson v Greater N.Y. Corp. of Seventh Day Adventists, 284 AD2d 382, 383 [2001]). Further, leave to renew is appropriate only when it is based on facts not known to the moving party at the time of the original motion (see Johnson v Marquez, 2 AD3d 786, 788-789 [2003]; CPLR 2221 [e] [2], [3]). Here, the Supreme Court providently exercised its discretion in denying that branch of the motion which was for leave to renew since his counsel failed to demonstrate diligent efforts to locate Hardy. In fact, it is clear that the search for Hardy did not even begin until after the third date on which the court had ordered his deposition to be held. Spolzino, J.E, Ritter, Covello and Balkin, JJ., concur.

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated August 18, 2005, as denied that branch of its motion pursuant to CPLR 4404 (a) which was for judgment as a matter of law and to dismiss the complaint, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as granted that branch of the defendant’s motion pursuant to CPLR 4404 (a) which was to set aside, as against the weight of the evidence, a jury verdict finding the defendant 51% at fault in the happening of the accident, and for a new trial. Ordered that the order is reversed insofar as appealed from, that branch of the defendant’s motion pursuant to CPLR 4404 (a) which was for judgment as a matter of law and to dismiss the complaint is granted, and that branch of the defendant’s motion pursuant to CPLR 4404 (a) which was to set aside the verdict as against the weight of the evidence and for a new trial is denied as academic; and it is further, Ordered that the cross appeal is dismissed as academic in light of our determination on the appeal; and it is further, *823Ordered that one bill of costs is awarded to the defendant. The evidence, viewed in the light most favorable to the plaintiff, was legally insufficient to support the jury’s verdict and, thus, that branch of the defendant’s motion pursuant to CPLR 4404 (a) which was for judgment as a matter of law and to dismiss the complaint should have been granted. The mere fact that the plaintiff was struck by a train, which is all that was shown, afforded no proof of the defendant’s negligence. In addition to establishing the fact of the accident, it was the plaintiffs burden to demonstrate what actually happened at the time of the accident so as to enable the jury to find that the defendant was negligent and that its negligence was the proximate cause of the accident (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 521 [1980]). To entitle the plaintiff to recover, the plaintiff was required to show that the train operator could have avoided the accident. It was the plaintiffs theory that the train operator should have seen him when the train first entered the station, and if he had taken the proper action to stop the train at that point, the accident could have been avoided. However, the claim that the plaintiff had fallen onto the tracks before the train entered the station was purely speculative. There was no evidence presented at trial that the plaintiff was on the tracks when the train first entered the station. The plaintiff did not establish when he fell onto the tracks, or for what length of time he was on the tracks before he was struck, so that it was impossible to infer from the evidence presented that the motorman saw or should have seen the plaintiff on the tracks a sufficient time before the accident to bring the train to a stop. Rather, the only evidence presented as to when the plaintiff fell onto the tracks was presented by the defendant, and it demonstrated that the plaintiff did not fall onto the tracks until it was too late for the motorman to avoid the accident. Thus,.the verdict in favor of the plaintiff was based upon pure speculation and conjecture, rather than upon any proof of negligence, and cannot be sustained (see Feblot v New York Times Co., 32 NY2d 486, 494 [1973]; Santiago v New York City Tr. Auth., 271 AD2d 675, 677 [2000]; Duran v Nassau County, 267 AD2d 346, 347 [1999]). Accordingly, that branch of the defendant’s motion pursuant to CPLR 4404 (a) which was for judgment as a matter of law and to dismiss the complaint should have been granted. In light of our determination on the appeal, the cross appeal has been rendered academic. Crane, J.E, Florio, Fisher and Dickerson, JJ., concur.

*824In an action, inter alia, to impose a constructive trust upon certain real property, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Jones, J.), dated June 20, 2006, which denied his motion to vacate an order and judgment (one paper) of the same court entered February 1, 2006 which granted the defendant’s unopposed motion to enforce a stipulation of settlement, and is in favor of the defendant and against him dismissing the complaint and awarding the defendant, among other things, possession of the real property on the defendant’s counterclaim. Ordered that the order is affirmed, with costs. The defendant entered a default judgment against the plaintiff based upon the plaintiff’s failure to oppose the defendant’s motion to enforce the terms of a stipulation which had been previously entered into between the parties. To vacate his default, the plaintiff was required to demonstrate both a reasonable excuse for his default and a meritorious cause of action or defense to the defendant’s counterclaim (see CPLR 5015 [a] [1]; Rockland Tr. Mix, Inc. v Rockland Enters., Inc., 28 AD3d 630 [2006]; Gironda v Katzen, 19 AD3d 644 [2005]; Liotti v Peace, 15 AD3d 452 [2005]). Here, the'plaintiffs excuse for his failure to timely oppose the defendant’s motion constituted little more than law office failure. Although it is within the discretion of the Supreme Court, in the interest of justice, to excuse a default resulting from law office failure (see CPLR 2005; Caputo v Peton, 13 AD3d 474 [2004]), under the circumstances of this case, the plaintiffs law office failure excuse was not reasonable (see Weitzenberg v Nassau County Dept. of Recreation & Parks, 282 AD2d 741 [2001]; Kyriacopoulos v Mendon Leasing Corp., 216 AD2d 532 [1995]; Bowdren v Peters, 208 AD2d 1020 [1994]; Correa v Ahn, 205 AD2d 575 [1994]; First Fed. Sav. & Loan Assn. of Rochester v 1220 Richmond Rd. Corp., 123 AD2d 418 [1986]). The plaintiff also failed to demonstrate a meritorious cause of action or defense to the defendant’s counterclaim (see Cooper v Hempstead Gen. Hosp., 2 AD3d 566 [2003]; Bubeck v Main Urology Assoc., 275 AD2d 909 [2000]; Doria v Masucci, 230 AD2d 764 [1996]). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion to vacate. Schmidt, J.P., Santucci, Krausman and Balkin, JJ., concur.

*825In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated May 11, 2006, which granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, and that branch of the defendant’s motion which was for summary judgment dismissing the complaint is denied. “ ‘A defendant who moves for summary judgment in a slip- and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it’ ” (Ulu v ITT Sheraton Corp., 27 AD3d 554 [2006], quoting Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511; see Roethgen v AMF Babylon Lanes, 30 AD3d 398 [2006]; Yioves v T.J. Maxx, Inc., 29 AD3d 572 [2006]; Daniels v Brisbane Leasing Ltd. Partnership, 24 AD3d 409 [2005]). Only after the movant has satisfied this threshold burden will the court examine the sufficiency of the plaintiffs opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Yioves v T.J. Maxx, Inc., supra at 573). Here, the defendant failed to make a prima facie showing that it was entitled to judgment as a matter of law on the ground that it had no notice of the condition which allegedly caused the plaintiffs fall. This burden cannot be satisfied merely by pointing out gaps in the plaintiffs case (see Cox v Huntington Quadrangle No. 1 Co., 35 AD3d 523 [2006]; Pearson v Parkside Ltd. Liab. Co., 27 AD3d 539 [2006]; South v K-Mart Corp., 24 AD3d 748 [2005]; Mondello v DiStefano, 16 AD3d 637, 638 [2005]; Surdo v Albany Collision Supply, Inc., 8 AD3d 655 [2004]; O’Leary v Bravo Hylan, LLC, 8 AD3d 542 [2004]). Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was for summary judgment dismissing the complaint. Rivera, J.P., Ritter, Goldstein and Angiolillo, JJ., concur. [See 12 Misc 3d 1159(A), 2006 NY Slip Op 50970(U) (2006).]

Appeal from an order of the Supreme Court, at Special Term, entered December 18, 1959, in New York County which denied a motion by defendant for an order to dismiss the first and second causes of action of the amended complaint. Memorandum by the Court. Order entered on December 18, 1959, denying a motion to dismiss first and second causes of action of the amended complaint for insufficiency and granting the cross motion to serve an amended complaint, modified, on the law, to the extent of dismissing the first cause of action and, in the exercise of discretion, with leave to replead and the order, as so modified, affirmed, with $20 costs and disbursements to the appellant. In this action, under which the plaintiff seeks to recover for unlawful discharge as a sales agent for the defendant, the plaintiff annexes to the complaint a writing setting forth certain terms of an agreement entered into between the parties. The defendant, in support of his motion to dismiss the first cause of action, urges that it appears from the writing that no cause of action exists. It is true that on a motion to dismiss a complaint for insufficiency, where a party rests on a written agreement which is annexed to the complaint, the court will determine the rights of the parties by reference to that writing regardless of what effect the plaintiff attempts to give to it in his pleading. However, nothing in this complaint compels a construction that that writing constitutes the entire agreement between the *584parties. On the contrary there are additional terms of the agreement set forth. True, he characterizes those additional terms as conditions precedent but a fair reading of the first cause of action seems to indicate his intention to plead a contract of broader scope than that which is encompassed by the writing. We cannot tell from the complaint whether these additional terms were oral or in writing,* nor does it appear conclusively that they vary or contradict the terms of the written document rather than supplement them. Whether or not the plaintiff will be able to offer introducible evidence in support of those additional terms we cannot determine from the pleadings. However, the first cause of action does not set forth an agreement with sufficient clarity to enable the defendant to properly answer. Moreover, the first cause of action is deficient in that there is no showing of the duration of his period of employment. It is, therefore, lacking in a term essential to an enforci'ble contract. The first cause of action should therefore be dismissed. However, the plaintiff should be given an opportunity to replead clearly the entire agreement upon which he relies. We find the second cause of action to be sufficient. Ignoring the inappropriate use of the term “ condition precedent ” and giving a liberal construction to the pleading, it appears that what is pleaded is an independent agreement whereby upon the termination of plaintiff’s employment, he would be reimbursed for his relocation expenses. Such an agreement, if proven, can stand on its own regardless of whether the first cause of action is good or bad. He alleges the employ • ment and he alleges the termination thereof. His claim is for reimbursement of his relocation expenses which he alleges was promised upon the termination of that employment. While it is true that this cause would suffer from the same infirmities as does the first cause of action if we were obliged to treat this agreement as part of the basic employment contract, there is nothing in the pleading that makes it mandatory that we do so. The agreement here pleaded can be considered as a separate and distinct one sustained by an independent and adequate consideration. The brief of the plaintiff-respondent refers to these additional terms as being oral but there is no explicit concession to that effect. However, the resolution of this appeal does not depend on whether they were oral or in writing.

Breitel, J. P. (dissenting in part). The order denying the motion to dismiss the first and second causes of action of the amended complaint for legal insufficiency should be reversed entirely, the motion granted and the causes of action dismissed, without leave to replead. Only the first two out of four causes of action are involved. In each plaintiff endeavors to allege an agreement, conceded in his brief to be oral, which he states was the inducement to his entering into the written agreement of continued employment. In the first cause of action he seeks to avoid the inevitable legal consequences by literally characterizing defendant’s alleged promises as “ a condition precedent ”. In the second cause of action he seeks to accomplish the same effect by again repeating that an agreement, this time with respect to removal expenses, was “ a further condition precedent ”. In each cause of action there is incorporation by reference of the written agreement to which these alleged “ oral ” agreements are supposed to be conditions precedent and inducements to plaintiff. The rule is well settled that when, in a pleading, a written agreement is attached and incorporated by reference, its legal effect is to be determined from the writing and not from the allegations of the pleader (Greeff v. Equitable Life Assur. Soc., 160 N. Y. 19, 29; Red Robin Stores v. Rose, 274 App. Div. 462, 465). Consequently, the written agreement in this case is controlling. *585The written agreement, as is evident from its face, provides for the continued employment of plaintiff in the Cleveland office of defendant. It provides that defendant “ is not to be involved or obligated for any personal business or other expense [of plaintiff] of whatever nature ”. There is then provision for various percentage payments by way of commissions and the stipulation that “ After such termination whatever amounts are still outstanding under this arrangement one way or another will be settled up promptly ”. It was provided in the agreement that the employment could be terminated at the option of either party. The agreement, concededly oral, alleged in the first cause of action as a “ condition precedent ” is to the effect that the employment could not be terminated without a comparison of the amount of business done, and if there were a material increase over the prior period “the said agreement should remain and continue to be in full force”. The alleged oral agreement is a flat contradiction of the provision in the written agreement that it is terminable at will if either party were not satisfied. The agreement in the second cause of action, also concededly oral, is alleged to have provided that, if the agreement were terminated by defendant, defendant would pay plaintiff $1,200 and other reimbursement for certain substantial expenses in removing his home from Cleveland to New York. This alleged oral agreement is in flat contradiction of the written agreement insofar as the latter provided that defendant was not to be involved or obligated for any personal, business or other expenses of whatever nature. In Fogelson v. Rackfay Constr. Co. (300 N. Y. 334) Judge Fuld, on behalf of the Court of Appeals, made the applicable rule quite clear (p. 338) : “ The rule, defining the limits of the contract to be construed, forbids proof of an oral agreement to add to or vary the writing. It does not, however, apply where the written contract was not intended to embody the entire agreement between the parties. In general, an oral agreement may be proved only if it is ‘ not * * * so clearly connected with the principal transaction as to be part and parcel of it ’ ”. True, in that case the question arose after trial. But the principle is still controlling in this pleading case. This is the way Judge Fuld further applied the rule to the facts in that case (p. 340) : “ From the tenants themselves in the case before us come indisputable acknowledgment that the transaction was single and that the oral agreement not only was part of the consideration but was the inducing cause for the execution of the lease itself. In so many words, they said that they would not have signed the leases had the landlords not promised to furnish bus service.” Transposing a description of the parties and adjusting the references, the language matches the problem in this case with astounding precision. For, in this case plaintiff has alleged in each cause of action that the extrinsic, and therefore parol, agreement was the inducing cause for the execution of the written agreement. He has, in truth, said, in so many words, that he would not have signed the written agreement if the employer had not promised him the additional right to continue the agreement and the additional payments. All that remains to the problem is that a reading of the letter agreement between the parties bespeaks its own finality and completeness. Moreover, while plaintiff contends otherwise in his brief on appeal, it is evident from his pleading that his theory rests on the making of independent oral agreements as conditions precedent to the integrated written agreement. So, too, by plaintiff’s own allegations, the oral' agreements are “ so clearly connected with the principal transaction as to be part and parcel of it”. The key to plaintiff’s dilemma is that he cannot claim an incomplete writing here because the subject matter of the alleged oral agreements is covered and contradicted in the writing. He can *586only hope to escape the parol evidence rule by arguing independent conditions precedent, but the court is unanimous that that is a legal impossibility. Leave to replead should not be granted because it is evident that plaintiff cannot legally or truthfully escape the effect of the written agreement he has incorporated by reference in each of the causes of action attacked. Babin, Valen te and Eager, JJ., concur in Memorandum; Breitel, J. P., dissents in part and votes to reverse in entirety in opinion in which Stevens, J., concurs. Order modified on the law, etc. [20 Misc 2d 334.]

In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated March 28, 2005, as, after a nonjury trial, (1) awarded her less than a 50% interest in certain real property in Highland Mills and in Cornwall, and *826failed to provide for the disposition of those awards, (2) failed to determine the parties’ rights to various joint accounts and certain securities, (3) denied her an award of spousal maintenance, (4) denied her an award of counsel fees, and (5) permitted her to resume use of the prior surname “McGowan.” Ordered that the judgment is modified, on the facts, (1) by deleting from the 10th decretal paragraph the words “seventy-five (75%) percent” and “twenty-five (25%) percent” and substituting therefor the words “fifty (50%) percent” and “fifty (50%) percent,” respectively, (2) by deleting from the 11th decretal paragraph the words “eighty (80%) percent” and “twenty (20%) percent” and substituting therefor the words “fifty (50%) percent” and “fifty (50%) percent,” respectively, and (3) by deleting from the 21st decretal paragraph the word “McGowan” and substituting therefor the word “McPhillips”; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for further proceedings in accordance herewith. The Supreme Court providently exercised its discretion in denying the defendant wife an award of spousal maintenance (see Almeda v Hopper, 2 AD3d 471 [2003]; cf. Buchsbaum v Buchsbaum, 292 AD2d 553, 554 [2002]; Domestic Relations Law § 236 [B] [6] [a]). Under the circumstances of this case, however, the Supreme Court improvidently exercised its discretion in not awarding the defendant a 50% interest in two properties, one located in Highland Mills and the other in Cornwall. Moreover, with respect to these two properties the court also failed to “provide for the disposition thereof’ (Domestic Relations Law § 236 [B] [5] [a]). As the defendant wife correctly contends, she will only be able to realize her interest in the property located in Highland Mills, where the plaintiff husband now resides, if the property is sold or if the husband purchases her interest. The same applies to the wife’s interest in the property located in Cornwall, which cannot be realized unless the property is sold or the husband purchases her interest (cf. D’Elia v D’Elia, 14 AD3d 477, 479 [2005]). We therefore remit the matter to the Supreme Court, Orange County, for further proceedings, including a hearing, if necessary, to determine and provide for the appropriate distribution of these two properties and to amend the judgment accordingly. We also find that the court improperly failed to order a distributive award of certain securities, valued at approximately $10,000 or $12,000, which the husband admitted were acquired *827by him after the marriage and were subject to equitable distribution, as well as the sum of approximately $22,000, which remained in the parties’ joint checking account at the time of the trial. Both distributions should be 50% to each party. Upon remittal, the court should distribute 50% of the above property to each party after determining the exact value of the property. As a result of an obvious clerical error, the judgment appealed from incorrectly refers to the wife’s prior surname as “McGowan” instead of the correct prior surname, “McPhillips.” The wife’s remaining contentions are without merit. Crane, J.E, Goldstein, Fisher and Lifson, JJ., concur.

In an action to recover an attorney’s fee, the defendant appeals from a judgment of the Supreme Court, Rockland County (Sherwood, J.), entered August 15, 2005, which, inter alia, upon an order of the same court dated July 28, 2005, granting the plaintiffs motion for summary judgment, is in favor of the plaintiff and against him in the principal sum of $70,659.37. Ordered that the judgment is affirmed, with costs. Contrary to the defendant’s contention, the Supreme Court properly granted the plaintiffs motion for summary judgment. In opposition to the plaintiffs prima facie showing of its entitlement to judgment as a matter of law, the defendant failed to submit evidence in admissible form establishing the existence of a triable issue of fact as to whether the plaintiff was entitled to recover legal fees which were incurred pursuant to a written agreement between the parties (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Mere conclusory allegations, unsubstantiated assertions, or speculation may not defeat a motion for summary judgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Carleton Studio, Ltd. v MONY Life Ins. Co., 18 AD3d 491, 492 [2005]; Leggio v Gearhart, 294 AD2d 543, 544 [2002]). Accordingly, the plaintiffs motion for summary judgment was properly granted (see Alvarez v Prospect Hosp., supra at 324). The appellant’s remaining contentions are without merit. Miller, J.E, Spolzino, Ritter and Dillon, JJ., concur.

Judgment affirmed, on the law and on the facts, with costs to the respondents. In connection with the sale of stock — which was essentially a sale of land being developed — the defendant warranted “ that [the] sewers had been fully paid for.” The breach of that warranty was fully established. The sewers had not been paid for. The sewer assessments which became a lien on the land in consequence thereof aggregated the sum of $163,415. The principal question to be decided is that of the amount of damage which the plaintiff is entitled to recover as the result of that breach. If this property had been warranted to be free and clear and if it were found to be encumbered by a mortgage, we would readily say that the plaintiff would be entitled to recover from the defendant the amount of that encumbrance, or at least its market value. Whether it retained the property or sold it it would be entitled to recover such sum. Nor does it make any difference if the property were subsequently sold at a profit. The purchaser would be entitled to receive what it paid for. I see no reason for a different measure of damages to be applied here. The assessment reflected the cost of the sewer installation. It was fixed in amount and it became an encumbrance on the property in such an amount. Nor is the relation of the amount of damages to the purchase price of any materiality. It is common knowledge that development costs of unimproved property very often equal and at times exceed the value of the land as undeveloped. However, that is quite immaterial because the agreed price reflected what the purchaser was willing to pay for the property with the sewers fully paid for. The plaintiff, however, has offered additional evidence, accepted by the court, whereby the loss could be established by other standards. For example, he proved that after the disclosure of the fact that the sewers had not been paid for there were refunds made by the defendants to prior purchasers in the same development to the extent of $500 per lot. Likewise, it was proved by a representative of the Veterans’ Administration that the Veterans’ Administration’s appraisal of each lot was diminished by the sum of $500 as a direct result of the unpaid sewer assessment. Furthermore, there was proof that the allocated cost of the installation of the sewers amounted to $805 per lot. There is, therefore, ample evidence in the record to establish a finding of a minimum loss of $119,375.23 resulting from the unpaid sewers and the other items of damage as reflected in the judgment of the court. The court could very well have found the loss to be the full amount of the sewer assessment. However, it chose to find a lesser amount based upon the alternative evidence of damage offered. If anything the defendants were benefited thereby. The plaintiff is entitled to what it contracted for and any profit which it made as the result of its operations should not inure to the benefit of the defendants who breached the •contract. Concur — Botein, P. J., Rabin and McNally, JJ.; Valente and Eager, JJ., dissent in the following memorandum: We dissent. The plaintiffs did establish a clear case entitling them to recover for breaches of warranties, but the record here is *587insufficient to support the damages awarded by the learned trial court and, therefore, the judgment appealed from should be reversed and a new trial ordered. The sale was a sale by defendants of all the shares of stock in a realty development corporation, which owned a tract of land subdivided into 203 building lots and developed with roads and utilities. In connection with the sale, the defendants represented .and agreed in writing that sewers had been fully installed so as to enable each of the lots to be connected with a sewage system, excepting seven lots described by number; that said sewers had been fully paid for; and that there were no unpaid assessments whatsoever against the premises. Within three months after the closing of the sale, the plaintiffs discovered that the sewer installations were not paid for and that the local Sewer District had assessed each of the lots the sum of $805 on account thereof, or a total assessment of the 203 lots of $163,415. Also involved was an alleged warranty that the lots were suitable to build upon, and it was alleged and proven by the plaintiffs that there was a breach of such warranty as to three of the lots in that they had been dedicated for park purposes. The plaintiffs brought this action to recover for breach of the warranty with respect to the three lots unavailable for building purposes, and to recover damages on account of the breach of the warranties that sewer installations were fully paid for and that sewer assessments were paid. The learned Trial Justice, readily reaching a conclusion that the plaintiffs were entitled to recover, aptly said, “ The question of damages may not be so clear.” He concluded that this was not a case for the application of subdivision 7 of section 150 of the Personal Property Law, prescribing damages in eases of breach of warranty of quality. He held that plaintiffs’ damages should be measured pursuant to subdivision 6 of section 150 of the Personal Property Law, providing that “ The measure of damages for breach of warranty is the loss directly and naturally resulting in the ordinary course of events from the breach of warranty.” In fixing the amount of damages to be awarded for breach of the warranties that sewer installations were fully paid for and that sewer assessments were paid, the trial court found that the plaintiffs had sold 200 building lots with houses to be constructed thereon and that “ plaintiffs suffered a loss of $500 profit on each sale.” The conclusion was that the plaintiffs sustained damages of $100,000 computed at the rate of $500 on a total of 200 lots. Such conclusion however does not have support in the record. (Incidentally, it appears that only 198 lots were sold with houses thereon, and that the warranties with respect to the sewer assessment did not apply to three of such lots.) In any event, the proof on the part of plaintiffs was merely to the effect that, on account of the failure of the defendants to have paid for sewer installations as warranted, the plaintiffs sustained a loss of $500 on many of the lots which were sold to veterans. Such proof was of course only effective to prove the loss on the limited number of lots which were sold to veterans, and the trial court specifically found that “ plaintiffs did not prove that they sold all the lots and houses thereon to veterans, or the exact amount of their loss There is no proof in the record as to the number of houses sold to veterans on which plaintiffs took a loss of $500. Award of $500 on each of 200 lots, as the loss sustained by plaintiffs, was not properly supported by the indefinite testimony on the part of the chief appraiser for the Veterans’ Administration that he estimated in a general way the cost of the construction of sewer pipes and outlets for a 75-foot house and lot at approximately the sum of $500. Nor is the particular award supported by the conclusion of the trial court that “It is only fair to assume that competition in the market required the pricing of all houses on the same basis as prices to veterans.” The plaintiffs had the burden of proving a proper basis for ascertaining the damages sus*588tained by reason of breach of the alleged warranties. “ ‘ Damages are recoverable for losses caused * * * by the breach [of contract] only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty ’ (American Law Institute, Restatement of the Law, of Contracts, § 331), and the plaintiff has always the burden of producing evidence sufficient to form a basis for the estimate.” (Haughey v. Belmont Quadrangle Drilling Corp., 284 N. Y. 136, 142.) Damages awarded by a trial court must find support in the evidence. An award may not stand where it rests upon mere conjecture or guesswork. (Dunkell v. McDonald, 272 App. Div. 267, affd. 298 N. Y. 586; Walter Janvier, Inc. v. Baker, 229 App. Div. 679, 680.) It should not have been necessary for the trial court to assume that the plaintiffs sustained a loss of $500 on each lot because “ competition in the market required the pricing of all houses on the same basis as prices to veterans ”. In adopting the speculative and untenable basis of $500 per lot as the measure of damages, the trial court not only predicated its conclusion on a standard unsupported by a proper evidentiary foundation, but reached a result which in monetary terms is on its face wholly disproportionate to the consideration for the entire contract. Plaintiffs are clearly entitled to be compensated for any and all loss sustained, but a misrepresentation or breach of warranty may not be used as a fulcrum for an unexpected profit. This does not appear to have been a case where there should have been any difficulty in establishing plaintiffs’ actual loss, or presenting proof whereby the same could be reasonably approximated. Under the circumstances, there should be a remand for a new trial for proper proof of “the loss directly and naturally resulting in the ordinary course of events from the breach of warranty ”,

Judgment unanimously reversed, on the law and on the facts, and a new trial ordered. Defendant and respondent in their summations addressed themselves to the issue of frame-up. After the ease was submitted to the jury, the jury returned three times with questions. The third inquiry was as follows: “‘With ever [sic] reference to frameup or setup, was the Judge [sm] ruling that it be stricken from the record? ’ * * * ‘Are we, as jurors, allowed to determine the defendant’s verdict on the premise that he was or was not framed? ’ ” The trial court answered as follows: “ The question — what was stricken from the record may not be — it may not be stricken from the record, that I do not remember; but I want to tell you again that if it was — a question from an attorney, that is not evidence.” Further colloquy ensued and then Juror Number Three stated: “Your Honor, that truly does not answer the question. We cannot really remember all of the — there are certain things — The Court : What portion of the evidence do you want read back to you? Juror Number Three: I cannot—I don’t know. The Court: Well, retire, and maybe your memory will be refreshed as a result of discussion. You are supposed to sit and discuss with the other jurors, and if you’ve forgotten some of the testimony, you can discuss with them and maybe they remember it. Maybe it will refresh your recollection. Retire and continue your deliberations.” It may be reasonably assumed the import of the question was whether or not the jury was entitled to consider the defense of frame-up. On this record the trial court’s response should have been in the affirmative. The trial court’s failure to instruct the jury in response to its request was substantial error. (People v. Gezzo, 307 N. Y. 385, 396; People v. Gonzalez, 293 N. Y. 259, 262-263.) The instructions given by the trial court made it appear that the jury was not entitled to consider the issue of frame-up. Concur — Botein, P. J., Breitel, Rabin, McNally and Eager, JJ.

*828In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (McGuirk, J.), dated September 29, 2005, which granted the motion of the defendants Gerard Laurer and Beverly Laurer for summary judgment dismissing the complaint insofar as asserted against them. Ordered that the order is affirmed, with costs. The plaintiff was injured when she stepped on a raised piece of sidewalk in front of property owned by the defendants Gerard Laurer and Beverly Laurer (hereinafter the Laurers), lost her balance, and fell. After the plaintiff commenced the present action, the Laurers moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court properly granted the motion. After the Laurers established, prima facie, that they did not create the defect which caused the plaintiffs accident, the plaintiff failed to raise a triable issue of fact (see CPLR 3212 [b]). In opposition to the motion, the plaintiff relied primarily upon the deposition testimony of the defendant Beverly Laurer, in which she acknowledged that, years earlier, she and her husband had caused certain repairs to be made to the sidewalk in front of their property. However, by referring to an exhibit on which the plaintiff had previously denoted the area where she fell, Ms. Laurer established that the repair work had been performed on a different part of the sidewalk. It was incumbent upon the plaintiff to establish that the defective condition in the sidewalk was created by the abutting landowner, and an abutting landowner will not be held responsible for the condition which caused the accident merely because repairs to other, unrelated areas of the walk were undertaken (see Roark v Hunting, 24 NY2d 470, 477 [1969]; Yass v Deepdale Gardens, 187 AD2d 506 [1992]). Miller, J.E, Spolzino, Ritter and Dillon, JJ., concur.

*829In an action to recover damages for breach of contract and for specific performance of a contract for the sale of real property, the defendant appeals from an order of the Supreme Court, Rockland County (Nelson, J.), entered January 19, 2006, which denied his motion for summary judgment dismissing the complaint and granted that branch of the plaintiffs cross motion which was for summary judgment on the issue of liability on its causes of action to recover damages for breach of contract. Ordered that the order is affirmed, with costs. In opposition to the plaintiffs prima facie showing of entitlement to judgment as a matter of law on the issue of liability on its causes of action to recover damages for breach of contract, the defendant failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The defendant did not raise an issue of fact as to his defense of impossibility to perform under the contract because impossibility must be “produced by an unanticipated event that could not have been foreseen or guarded against in the contract” (Kel Kim, Corp. v Central Mkts., 70 NY2d 900, 902 [1987]). Here, the defendant could have foreseen or guarded against the possibility that a prior contract of sale of the subject real property to a third party would remain valid. Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint, and granted that branch of the plaintiffs cross motion which was for summary judgment on the issue of liability on its causes of action to recover damages for breach of contract. The defendant’s remaining contentions are not properly before this Court or are without merit. Rivera, J.E, Ritter, Goldstein and Angiolillo, JJ., concur.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated November 14, 2005, as denied their motion for summary judgment on the issue of liability under Labor Law § 240 (1), and the defendants cross-appeal from so much of the same order as denied that branch of their cross motion which was for summary judgment dismissing the cause of action based on Labor Law § 240 (1). *830Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements. Labor Law § 240 (1) imposes liability upon owners and contractors who fail to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards (see Misseritti v Mark IV Constr. Co., 86 NY2d 487, 490-491 [1995]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]; Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2006]). To prevail on a cause of action under Labor Law § 240 (1), a plaintiff must demonstrate that he was injured during “the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (Labor Law § 240 [1]; Joblon v Solow, 91 NY2d 457, 464 [1998]; Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 576-577 [1990]; Spaulding v S.H.S. Bay Ridge, 305 AD2d 400, 401 [2003]). Once Labor Law § 240 (1) is shown to be applicable, in order to establish prima facie entitlement to judgment as a matter of law, a plaintiff must demonstrate that an owner, contractor, or their agent breached a duty under the statute, and that the breach proximately caused the plaintiff’s injury (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993]; Woszczyna v BJW Assoc., 31 AD3d 754, 755 [2006]; Lightfoot v State of New York, 245 AD2d 488, 489 [1997]). A defendant cannot be held liable if the plaintiffs actions were the sole proximate cause of the accident (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]; Marin v Levin Props., LP, 28 AD3d 525 [2006]; Morin v Machnick Bldrs., 4 AD3d 668, 669 [2004]). Here, the parties failed to establish, prima facie, whether the injured plaintiff had access to properly placed and adequate safety devices (see Marin v Levin Props., supra at 526; Palacios v Lake Carmel Fire Dept., Inc., 15 AD3d 461, 462-463 [2005]; cf. Orellana v American Airlines, 300 AD2d 638 [2002]). Moreover, the Supreme Court properly found that a triable issue of fact exists as to whether the injured plaintiffs conduct in using a forklift to access the air conditioning unit was the sole proximate cause of his accident (see Marin v Levin Props., supra; Cahill v Triborough Bridge & Tunnel Auth., supra at 40; cf. Robinson v East Med. Ctr., LP, 6 NY3d 550 [2006]). Accordingly, the plaintiffs’ motion, and that branch of the defendants’ cross motion which was for summary judgment dismissing the cause of action based on Labor Law § 240 (1), were properly denied. The defendants’ contention regarding the plaintiffs’ Labor *831Law § 241 (6) claim is not properly before this Court, and their remaining contentions are without merit. Rivera, J.E, Santucci, Angiolillo and Dickerson, JJ., concur.

Order entered on October 30, 1959, denying motion for a further bill of particulars and to strike certain items in the bill of particulars furnished, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to the appellant, and the motion to strike the reservations contained in items 6, 7 and 13(b) granted, with $10 costs. The motion for a further bill is granted as to items 7(b), (c), (d), (e), (f), (h), (i), (j), (I), as modified by striking therefrom the words “the basis upon which such claim is made; and an identification of the servants, agents and employees of the defendant Bronx Hospital over whom *590it is claimed that the defendant Weinstein was charged with supervision, direction and control”; items (p), (q), (r), (s), (u), (x), (z), (aa), (bb), (ee), (ff), (hh), and is otherwise denied. Such bill is to be served within 20 days after service of a copy of the order herein with notice of entry thereof. If respondent is unable to furnish any of the information required he may state his lack of knowledge by affidavit under oath in lieu thereof. Settle order on notice. Concur — Botein, P. J., Breitel, Stevens, Eager and Noonan, JJ.

In an action, inter alia, to recover damages for breach of a commercial lease, the plaintiff appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Nassau County (O’Connell, J.), dated September 28, 2005, as granted those branches of the defendant’s motion which were for summary judgment dismissing the cause of action to recover damages for breach of a commercial lease and, in effect, for summary judgment on so much of the counterclaim as sought to recover attorneys’ fees, and (2) an order of the same court dated November 23, 2005, which determined that the defendant was entitled to the sum of $75,000 in attorneys’ fees. Ordered that the order dated September 28, 2005 is reversed insofar as appealed from, on the law, and those branches of the defendant’s motion which were for summary judgment dismissing the cause of action to recover damages for breach of a commercial lease and for summary judgment on so much of the counterclaim as sought to recover attorney’s fees are denied; and it is further, Ordered that the order dated November 23, 2005 is reversed, on the law; and it is further, Ordered that one bill of costs is awarded to the appellant. In May 1999 the plaintiffs predecessor in interest, the Chalos Law Firm, LLC (hereinafter the Chalos Firm), entered into a written lease with the defendant for office space on the third floor of a commercial building (hereinafter the original lease). In August 2000 the Chalos Firm, in need of room for expansion, entered into a lease with the defendant for additional office *832space at an adjacent building (hereinafter the second lease). Pursuant to the second lease, the defendant agreed, inter alia, to make substantial improvements, including the construction of an enclosed pedestrian walkway connecting the two properties at the third floor. The term of the second lease was to commence on October 1, 2000, or the date of “substantial completion” of the promised improvements, which was to be determined “at Landlord’s sole discretion.” In March 2002 the plaintiff commenced this action, inter alia, to recover damages for breach of the second lease. The plaintiff alleged that, despite due demand, the defendant had failed to timely complete the promised improvements, making occupancy of the additional space impossible, and, in effect, requiring relocation of the Chalos Firm and vacatur of existing leased space. The defendant answered and moved for summary judgment, inter alia, dismissing the complaint. The defendant noted that section 24 of the second lease exculpated it from all damages arising from a delay in giving possession. In this respect, the defendant asserted that significant unforeseen delays had arisen due to “serious structural problems” with the subject properties, which were revealed only during demolition, and by “a multitude of other problems.” The defendant also moved for summary judgment on its counterclaim which, among other things, sought an award of attorneys’ fees. Section 19 of the original lease provided for an award of such fees incurred in “instituting, prosecuting or defending” an action or proceeding occasioned by a default. Section 19 of the second lease is virtually identical to section 19 of the original lease and also provides for an award of attorneys’ fees under the same circumstances. In opposition, the plaintiff asserted, among other things, that the defendant had ceased making the promised improvements because it determined that the costs would be more than it initially anticipated, particularly as to the construction of a pedestrian walkway connecting the two buildings at the third floor. Thus, the plaintiff argued that the defendant’s conduct did not constitute a mere delay in making the promised improvements, but a total repudiation of the second lease. Indeed, the plaintiff noted, the promised improvements were not completed when it vacated the premises in July 2003, almost three years after the target date for occupancy of the additional space. By order dated September 28, 2005, the Supreme Court, inter alia, granted those branches of the defendant’s motion which were for summary judgment dismissing the cause of action to recover damages for breach of the second lease and, in effect, *833for summary judgment on so much of the counterclaim as sought to recover attorneys’ fees. By order dated November 23, 2005, the Supreme Court determined that the defendant was entitled to the sum of $75,000 in attorneys’ fees. The plaintiff appeals from both of these orders and we reverse. A clause which exculpates a contractee from liability to a contractor for damages resulting from delays in the performance of the latter’s work is valid and enforceable, and is not contrary to public policy, if the clause and the contract of which it is a part satisfy the requirements for the validity of contracts generally (see Corinno Civetta Constr. Corp. v City of New York, 67 NY2d 297 [1986]; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 381 [1983]; Noble Thread Corp. v Vormittag Assoc., 305 AD2d 386, 387 [2003]). However, this rule is not without exceptions, and “even exculpatory language which purports to preclude damages for all delays resulting from any cause whatsoever are not read literally” (Corinno Civetta Constr. Corp. v City of New York, 67 NY2d at 309). Generally, even with such a clause, damages may be recovered for: (1) delays caused by the contractee’s bad faith or its willful, malicious, or grossly negligent conduct, (2) uncontemplated delays, (3) delays so unreasonable that they constitute an intentional abandonment of the contract by the contractee, and (4) delays resulting from the contractee’s breach of a fundamental obligation of the contract (see id.). Here, the defendant failed to demonstrate, prima facie, that none of these exceptions are present, and that an award of damages to the plaintiff is precluded by the exculpatory clause of the second lease. Accordingly, the Supreme Court should have denied those branches of the defendant’s motion which were for summary judgment dismissing the cause of action to recover damages for breach of the second lease and for summary judgment on so much of the counterclaim as sought to recover attorneys’ fees. Spolzino, J.E, Ritter, Covello and Balkin, JJ., concur.

In an action for declaratory and injunctive relief, the plaintiffs Donald Garber, JLM Hotels, Co., Inc., JLM Food Services, Inc., *834Inn at Stony Brook, Inc., doing business as Three Village Inn, and Tsunis Hotels, LLC, doing business as Holiday Inn Express in Stony Brook, appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated December 14, 2005, which granted the defendants’ motion to dismiss the complaint. Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs. The Supreme Court correctly determined that the plaintiffs lacked standing as citizen taxpayers under State Finance Law § 123-b to maintain this action for a judgment, inter alia, to permanently enjoin the defendants State University of New York at Stony Brook (hereinafter SUNY Stony Brook) and its president and/or Stony Brook Foundation Realty, Inc. (hereinafter SBF Realty), from entering into contracts for the construction of a hotel and conference center on a portion of the campus of SUNY Stony Brook unless they comply with competitive bidding laws. State Finance Law § 123-b grants citizen taxpayers standing to bring an action for equitable or declaratory relief against an officer or employee of the State to prevent a “wrongful expenditure, misappropriation, misapplication, or any other illegal or unconstitutional disbursement of state funds or state property.” The statute is narrowly construed as a grant of “standing to correct clear illegality of official action,” but does not allow the interposition of “litigating plaintiffs and the courts into the management and operation of public enterprises” (Matter of Abrams v New York City Tr. Auth., 39 NY2d 990, 992 [1976]; see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 812 [2003], cert denied 540 US 1017 [2003]; Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579, 589 [1998]). The plaintiffs allege that the defendants’ conduct in entering into a contract with a private developer for construction of a hotel on the SUNY Stony Brook campus was “illegal” and constituted an unconstitutional gift of State property. While the allegations in the complaint are to be accepted as true when considering a motion to dismiss (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), “allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration” (Maas v Cornell Univ., 94 NY2d 87, 91 [1999], quoting Gertler v Goodgold, 107 AD2d 481, 485 [1985], affd 66 NY2d 946 [1985] for reasons stated below). The Supreme Court correctly determined, upon review of the documents submitted by the parties, that the proposed hotel construction proceeded in accordance *835with specific enabling legislation enacted by the Legislature (L 1986, ch 830; L 1989, ch 200). Within the time frame allowed by the enabling legislation, SUNY and SBF Realty entered into a ground lease and the ground lease was approved by the State Comptroller, the Budget Director and, as to form, by the Attorney General, as required by that statute. The enabling legislation also expressly provides that contracts entered into for construction of the hotel and conference facilities are exempt from the requirements of public bidding statutes. Since the conclusory allegations of illegality and gift of State property are clearly contradicted by the documentary evidence, the plaintiffs lack standing to challenge the ground lease or to enjoin the current plans to construct and develop a hotel on campus. Rivera, J.E, Santucci, Angiolillo and Dickerson, JJ., concur.

In an action, inter alia, for permanent injunctive relief, the defendants appeal (1) from an order of the Supreme Court, Kings County (Douglass, J.), dated September 20, 2005, which, after a hearing, granted the plaintiff’s motion, inter alia, to preliminarily enjoin them from, among other things, recording any vocal or instrumental music under the trademarked name The Chevra, or performing any of the copyrighted songs written by the plaintiff, and (2), as limited by their brief, from so much of an order of the same court dated December 6, 2005, as, in effect, upon reargument, adhered to the original determination. Ordered that the appeal from the order dated September 20, 2005 is dismissed, as that order was superseded by the order dated December 6, 2005, made, in effect, upon reargument; and it is further, Ordered that the order dated December 6, 2005 is modified, on the law, by adding a provision thereto directing the plaintiff to provide an undertaking; as so modified, the order is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Kings County, for the fixing of the amount of the undertaking; and it is further, Ordered that one bill of costs is awarded to the plaintiff. To prevail on a motion for a preliminary injunction, a movant must establish a likelihood of success on the merits, irreparable injury in the absence of an injunction, and a balance of equities in its favor (see Aetna Ins. Co. v Capasso, 75 NY2d 860 [1990]; Cruz v McAneney, 29 AD3d 512 [2006]; William M. Blake Agency v Leon, 283 AD2d 423, 424 [2001]; Somers Stained Glass Corp. *836v Somers Designs, 277 AD2d 442 [2000]). Further, the hearing court’s credibility determination is entitled to great weight on appeal (Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536 [2006]). Here, the Supreme Court properly granted the motion for a preliminary injunction (see Cruz v McAneney, supra). Although the fixing of the amount of an undertaking when granting a motion for a preliminary injunction is a matter within the sound discretion of the court (see Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348 [1998]), the language of CPLR 6312 (b) is “clear and unequivocal,” and it requires the party seeking the injunction to give an undertaking (Carter v Konstantatos, 156 AD2d 632, 633 [1989]; see Pitterson v Watson, 299 AD2d 467 [2002]). Thus, under the circumstances of the instant case, the Supreme Court erred to the extent that it granted the plaintiffs request for a preliminary injunction without requiring him to give an undertaking which would “reimburse the defendant for damages sustained if it [were] later finally determined that the preliminary injunction was erroneously granted” (Schwartz v Gruber, 261 AD2d 526 [1999]). Mastro, J.E, Krausman, Florio and Balkin, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated March 7, 2006, which granted the defendants’ motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. “The owner [or operator] of a store must take reasonable care that [its] customers shall not be exposed to danger of injury through conditions in the store or at the entrance which [it] invites the public to use . . . However, the business owner or operator is not obligated to provide a constant remedy to the problem of water or snow being tracked into the store caused by inclement weather” (Hackbarth v McDonalds Corp., 31 AD3d 498, 498- 499 [2006] [internal citations and quotations marks omitted]; see Murphy v Lawrence Towers Apts., LLC, 15 AD3d 371, 372 [2005]; Ford v Citibank, N.A., 11 AD3d 508, 509 [2004]; Yearwood v Cushman & Wakefield, 294 AD2d 568 [2002]). In this slip-and-fall case, the defendants made a prima facie showing of entitlement to summary judgment by presenting sufficient evidence, by way of the parties’ and nonparties’ dep*837osition testimony, demonstrating that they neither created the wet condition nor had actual or constructive notice thereof for a sufficient length of time for their employees to have discovered and remedied it. In opposition, the plaintiff failed to raise a triable issue of fact (see Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986]; Hackbarth v McDonalds Corp., supra; Dubensky v 2900 Westchester Co., LLC, 27 AD3d 514 [2006]; Murphy v Lawrence Towers Apts., supra; Ford v Citibank, N.A., supra at 509; Yearwood v Cushman & Wakefield, supra; Negron v St. Patrick’s Nursing Home, 248 AD2d 687 [1998]). Mastro, J.E, Florio, Garni and McCarthy, JJ., concur.

In an action to recover damages for personal injuries, etc., the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated June 7, 2005, as denied her motion for summary judgment on the issue of liability. Ordered that the order is affirmed insofar as appealed from, with costs. The plaintiff allegedly was injured when the vehicle she was driving came into contact with a garbage truck owned by the defendant City of New Rochelle and driven by the defendant Chesterfield Bowen. In opposition to the plaintiffs motion for summary judgment on the issue of liability, the defendants asserted, on the basis of Vehicle and Traffic Law § 1103 (b), that they would be liable for the plaintiffs injuries only upon a finding of “reckless disregard for the safety of others” and that the plaintiffs motion must be denied because the plaintiff failed to establish such recklessness on their part in support of her motion. Contrary to the defendants’ argument, however, Vehicle and Traffic Law § 1103 (b) applies only to vehicles “actually engaged in work [up]on a highway,” which is construed as being limited to vehicles performing “construction, repair, maintenance or similar work” (Riley v County of Broome, 95 NY2d *838455, 464 [2000]). Since the ordinary municipal refuse collection in which the garbage truck was engaged at the time of the accident is not such work, the statute is inapplicable. Applying an ordinary negligence standard, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that the defendants’ truck, which was stopped in the left lane facing against traffic, struck her vehicle as it attempted to cross the roadway and enter her lane of travel in violation of her right of way (see Vehicle and Traffic Law § 1143; Lallemand v Cook, 23 AD3d 533 [2005]; White v Gooding, 21 AD3d 485 [2005]). However, in opposition, the defendants raised a triable issue of fact regarding the plaintiffs alleged comparative fault. A motorist is negligent if he or she fails to see that which, under the circumstances, he or she should have seen through the proper use of his or her senses (see Bolta v Lohan, 242 AD2d 356 [1997]; see also Weigand v United Traction Co., 221 NY 39 [1917]). Here, the defendants presented the affidavit of Bowen’s coworker, a nonparty, who stated that he stood behind the truck and gestured toward the plaintiff in order for her to stop her vehicle from proceeding and to allow the defendants’ truck to merge into traffic. This directly conflicted with the plaintiffs testimony at her General Municipal Law § 50-h hearing, where she testified that no one said anything to her or gestured as she attempted to pass the defendants’ truck. Accordingly, a triable issue of fact remains regarding comparative negligence, precluding the granting of the plaintiffs motion for summary judgment (see Perla v Wilson, 287 AD2d 606 [2001]; Young v Mauch, 268 AD2d 583 [2000]). Miller, J.E, Spolzino, Goldstein and McCarthy, JJ., concur.

In an action, inter alia, for a judgment declaring the parties’ rights under a lease, the plaintiff appeals from an order of the Supreme Court, Nassau County (Warshawsky, J.), dated January 12, 2006, which denied its motion for a Yellowstone injunction (see First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 [1968]). Ordered that the order is affirmed, with costs; and it is further, Ordered that the stay contained in the decision and order on motion of this Court dated March 2, 2006 is vacated forthwith. The purpose of a Yellowstone injunction (see First Natl. Stores *839v Yellowstone Shopping Ctr., 21 NY2d 630 [1968]) is to allow a tenant confronted by a threat of termination of a lease to obtain a stay tolling the running of the statutory cure period so that, after a determination of the merits of any action arising under the lease, the tenant may cure the defect and avoid a forfeiture of the leasehold (see Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d 508, 514 [1999]; Long Is. Gynecological Servs. v 1103 Stewart Ave. Assoc. Ltd. Partnership, 224 AD2d 591, 593 [1996]; Sportsplex of Middletown v Catskill Regional Off-Track Betting Corp., 221 AD2d 428 [1995]). A tenant seeking Yellowstone relief must demonstrate that: (1) it holds a commercial lease, (2) it has received from the landlord a notice of default, notice to cure, or threat of termination of the lease, (3) its application for a temporary restraining order was made prior to expiration of the cure period and termination of the lease, and (4) it has the desire and ability to cure the alleged default by any means short of vacating the premises (see First Natl. Stores v Yellowstone Shopping Ctr., supra; Mayfair Super Mkts. v Serota, 262 AD2d 461 [1999]). The lease at issue was explicitly conditioned upon compliance with a certain 1996 stipulation between the plaintiff and the Village of Valley Stream. The Village commenced an action in federal court asserting that the plaintiff had violated the 1996 stipulation. By memorandum opinion and order dated January 5, 2004 [2004 WL 62560, 2004 US Dist LEXIS 348 (ED NY)], Magistrate Judge E. Thomas Boyle of the United States District Court for the Eastern District of New York granted the Village’s request for a judgment declaring that the plaintiff had breached the 1996 stipulation, and that the Village was thereby entitled to enforce, as against the plaintiff, Local Law No. 4 (1994) of the Village of Valley Stream, prohibiting “adult” video stores in certain locations. On May 31, 2005, a three-judge panel for the United States Court of Appeals for the Second Circuit affirmed Magistrate Judge Boyle’s order in all respects (see Hempstead Video, Inc. v Incorporated Vil. of Val. Stream, 409d 127 [2005]). We need not pass upon the applicability of the plaintiff’s purported waiver, pursuant to the terms of the lease, of its right to Yellowstone relief because the plaintiff was unable to establish its entitlement to Yellowstone relief in view of the circumstances described above (see Mayfair Super Mkts. v Serota, supra). Crane, J.E, Goldstein, Fisher and Lifson, JJ., concur.

*840In an action, inter alia, to recover damages for wrongful death, the defendants Stephan Goodman and James S. Vela appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Rockland County (Weiner, J.), entered September 19, 2005, as, upon so much of a jury verdict as awarded damages in the principal sums of $750,000 for conscious pain and suffering, $36,000 for past pecuniary loss, $9,000 for future pecuniary loss, and $25,000 for medical expenses, and upon the denial of that branch of their motion pursuant to CPLR 4404 (a) which was to set aside the jury verdict on the issue of damages as against the weight of the evidence and as excessive, is in favor of the plaintiff and against them in the principal sum of $820,000. Ordered that the judgment is modified, on the law, the facts, and in the exercise of discretion, by (1) deleting the provision thereof awarding damages in the principal sum of $25,000 for medical expenses, and (2) deleting the provision thereof awarding the plaintiff damages in the principal sum of $750,000 for conscious pain and suffering, and substituting therefor a provision granting that branch of the appellants’ motion pursuant to CPLR 4404 (a) which was to set aside, as excessive, so much of the jury verdict as awarded damages in the principal sum of $750,000 for conscious pain and suffering and granting a new trial with respect thereto; as so modified, the judgment is affirmed insofar as appealed from, with costs, unless, within 30 days after service upon the plaintiff of a copy of this decision and order, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Rockland County, a written stipulation consenting to reduce the verdict as to damages for pain and suffering from the principal sum of $750,000 to the principal sum of $525,000, and to the entry of an amended judgment in his favor; in the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Rockland County, for the entry of an amended judgment accordingly. Due to his complaints of shortness of breath, the plaintiffs *841decedent was admitted to Nyack Hospital on April 12, 2000. His attending physician diagnosed him with pneumonia. On April 17, 2000 the decedent complained of abdominal pain and his physician ordered a consultation by two gastroenterologists, the defendants Stephan Goodman and James S. Vela. However, the decedent developed pancolitis, an inflammation of the entire colon, and megacolon, a massive distension of the colon. The megacolon led to systemic toxicity and multiple organ failure, resulting in his death on April 21, 2000. The award for conscious pain and suffering deviates materially from what would be considered reasonable compensation and is excessive to the extent indicated (see CPLR 5501 [c]; Merola v Catholic Med. Ctr. of Brooklyn & Queens, Inc., 24 AD3d 629, 631 [2005]; Ramos v Shah, 293 AD2d 459 [2002]; Kogan v Dreifuss, 174 AD2d 607, 609 [1991]). However, the awards for individual pecuniary loss are not against the weight of the evidence nor do they deviate materially from what would be reasonable compensation (see Ramos v La Montana Moving & Stor., 247 AD2d 333, 334 [1998]; Glassman v City of New York, 225 AD2d 658, 660 [1996]; Rubin v Aaron, 191 AD2d 547, 549 [1993]). The defendants were prejudiced by the plaintiffs failure to notify them in the bills of particulars or prior to trial of his intent to recover the amount charged on the decedent’s hospital bill as medical expenses (see Johnson v Lazarowitz, 4 AD3d 334, 335 [2004]; Palchik v Eisenberg, 278 AD2d 293, 294 [2000]). The plaintiff introduced into evidence the hospital bill, which reflected the total charges for the decedent’s stay in the hospital, from April 12, 2000 to April 21, 2000. It was prejudicial to the defendants to admit the entire hospital bill when the decedent was admitted to the hospital on April 12, 2000 for a medical problem unrelated to that which caused his death. Moreover, the defendants were not involved in his treatment until April 17, 2000. Accordingly, it was improper and prejudicial to the defendants to admit the hospital bill summarizing all charges for the decedent’s entire stay in the hospital. Miller, J.P., Spolzino, Ritter and Dillon, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Dorsa, J.), entered March 6, 2006, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied. The defendant established, prima facie, his entitlement to judgment as a matter of law on his motion by showing, via his submissions, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-353 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Contrary to the Supreme Court’s determination, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury within the meaning of the Insurance Law as a result of the accident. The plaintiff submitted, inter alia, the affidavit of his treating chiropractor and the affirmation of his examining orthopedist, both specifying the decreased range of motion in his cervical and lumbar regions as evidenced by objec*843tive findings, along with evidence of herniated and bulging discs in the cervical and lumbar spine as confirmed by magnetic resonance imaging tests. The plaintiffs treating chiropractor, as well as his examining orthopedist, also asserted, in their respective submissions, that the plaintiffs injuries and limitations in his cervical and lumbar spine were permanent, and causally related to the accident. These submissions were sufficient to raise a triable issue of fact as to whether the plaintiff sustained a permanent consequential or significant limitation of use of his cervical and/or lumbar spine as a result of the subject accident (see Lim v Tiburzi, 36 AD3d 671 [2007]; Shpakovskaya v Etienne, 23 AD3d 368, 369 [2005]; Clervoix v Edwards, 10 AD3d 626, 627 [2004]). Crane, J.E, Santucci, Florio, Dillon and Balkin, JJ., concur.

In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated June 9, 2006, as denied their motion for summary judgment dismissing the complaint. Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted. On the afternoon of April 10, 2003, at the end of the school day, the infant plaintiff was dropped off, with three other students, at his bus stop. The bus driver, the defendant Richard Eolitano, knew that the infant plaintiff had to cross the street in front of the bus to get to his house. Although Vehicle and Traffic Law § 1174 (b) required Eolitano, inter alia, to instruct the infant plaintiff to cross in front of the bus, and to keep the bus’s red signal fights flashing until the infant plaintiff reached the opposite side of the road, he did not give the infant plaintiff any sort of warning. After the infant plaintiff was dropped off, he chose not to go home, but instead began “messing around” on the sidewalk with two of the other students. As the bus pulled away, he lost his balance, fell backwards into the bus, and allegedly sustained injury. *844On their motion for summary judgment dismissing the complaint, the defendants demonstrated their entitlement to judgment as a matter of law by establishing that any violation of Vehicle and Traffic Law § 1174 (b), which was enacted to protect school children that cross a highway after being dropped off by a school bus (see Van Gaasbeck v Webatuck Cent. School Dist. No. 1, 21 NY2d 239, 245 [1967]; Sewar v Gagliardi Bros. Serv., 69 AD2d 281, 288 [1979], affd 51 NY2d 752 [1980]), was not a proximate cause of the infant plaintiffs alleged injuries (see Shahzaman v Green Bus Lines Co., 214 AD2d 722, 723 [1995]). In response, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendants’ motion (see Shahzaman v Green Bus Lines Co., supra at 723). Crane, J.E, Skelos, Covello and Dickerson, JJ., concur.

In an action to foreclose a mechanic’s lien, the defendant 115 Flying Point, LLC, also known as 115 Flying Point Road, LLC, appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated January 6, 2006, as denied, in effect, as academic, that branch of its motion, made jointly with the defendants Barbara Sullivan and Christina Magidson, which was to discharge, as defective, a mechanic’s lien and granted that branch of the plaintiffs cross motion which was for leave to amend the notice of mechanic’s lien, and (2) from stated portions of a judgment of the same court entered February 23, 2006 upon the order; and the defendants Barbara Sullivan and Christina Magidson also appeal from the same order and judgment. Ordered that the appeals by the defendants Barbara Sullivan and Christina Magidson are dismissed as abandoned (see 22 NYCRR 670.8 [e]); and it is further, Ordered that the appeal by the defendant 115 Flying Point, LLC, also known as 115 Flying Point Road, LLC, from the order dated January 6, 2006, is dismissed; and it is further, Ordered that the judgment entered February 23, 2006, is affirmed insofar as appealed from by the defendant 115 Flying Point, LLC, also known as 115 Flying Point Road, LLC; and it is further, Ordered that one bill of costs is awarded to the plaintiff payable by the defendant 115 Flying Point, LLC, also known as 115 Flying Point Road, LLC. *845The appeal by the defendant 115 Flying Point, LLC, also known as 115 Flying Point Road, LLC, from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]). The defect in the verification in the notice of mechanic’s lien filed by the plaintiff is subject to amendment (see Matter of Teitler v McDermott & McDonald, 306 NY 953 [1954], affg 282 App Div 953 [1953]; Lien Law § 12-a [2]). Accordingly, the Supreme Court properly granted that branch of the plaintiffs cross motion which was for leave to amend the notice of mechanic’s lien, and properly denied, in effect, as academic, that branch of the motion which was to discharge, as defective, the mechanic’s lien. Crane, J.P, Goldstein, Fisher and Lifson, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated July 5, 2006, which granted the defendants’ motion to transfer venue of this action from Kings County to Nassau County pursuant to CPLR 510 and 511. Ordered that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a hearing in accordance herewith, and thereafter for a new determination of the motion. The plaintiff selected Kings County as the venue of this action based on her purported residence (see CPLR 503 [a]). The defendants moved to transfer venue (see CPLR 511), presenting evidence that the plaintiff did not reside in Kings County when she commenced this action. In her opposition papers, the plaintiff submitted, among other things, a vehicle registration document, a phone bill, a bank statement, and a tax return form, which collectively raised an issue of fact as to whether she resided in Kings County at the time of commencement of this action. Since this issue of fact could not properly have been resolved on the papers alone, the Supreme Court should have held a hearing on the issue of residency (see Ramondi v Paramount Leasehold, L.P., 37 AD3d 447 [2007]). Schmidt, J.P, Krausman, Goldstein, Covello and Angiolillo, JJ., concur.

In an action for a divorce and ancillary relief, the plaintiff former wife appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Nassau County (LaMarca, J.), entered January 13, 2005, which, inter alia, awarded her maintenance and retroactive child support, equitably distributed marital property, and directed that she be responsible for her own health insurance. Ordered that the judgment is affirmed insofar as appealed from, with costs. After 30 years of marriage, the former wife commenced the instant action for a divorce and ancillary relief in 1998. The parties entered into a stipulation dated April 10, 2003 providing for the equitable distribution of the marital residence, the defendant former husband’s businesses, and commercial real estate. A 55-day trial was conducted from April 26, 2002 through March 11, 2004, after which the trial court issued findings of fact, and rendered a judgment disposing of outstanding financial issues. The wife appeals from stated portions of the judgment. We affirm. Under the circumstances, in determining basic child support for the parties’ unemancipated daughter, the trial court providently exercised its discretion in determining that it would be unjust and inappropriate to apply the statutory percentage to the husband’s income in excess of $100,000 (see Domestic Relations Law § 240[l-b] [c] [3]; [f]; Matter of Cassano v Cassano, 85 NY2d 649, 655 [1995]; Corasanti v Corasanti, 296 AD2d 831 [2002]). Further, the wife’s contention that the trial court erred in denying her claim to equitable distribution of rental income from commercial real estate already distributed to the husband pursuant to the stipulation dated April 10, 2003 is without merit. Pursuant to the clear and unambiguous language of the *847stipulation, the wife waived any claim she may have had to this property. Considering all of the factors relevant in determining maintenance, including the amount of marital assets awarded to the wife, and her ability to become partially self-supporting, the award to her of nondurational maintenance in the sum of $800 per week was a provident exercise of the trial court’s discretion (see Fridman v Fridman, 301 AD2d 567 [2003]; Kret v Kret, 222 AD2d 412 [1995]; Domestic Relations Law § 236 [B] [6] [a]). The wife’s testimony with respect to her health problems was not corroborated by expert testimony, and did not establish that she was incapable of securing employment. Rather, the evidence indicates that she is capable of working. Considering the wife’s means and ability to secure employment, the trial court’s refusal to compel the husband to provide health insurance for her was a provident exercise of discretion (see Mollon v Mollon, 282 AD2d 659, 661 [2001]; Mulcahy v Mulcahy, 170 AD2d 587, 589 [1991]). The parties’ remaining contentions are without merit. Miller, J.E, Spolzino, Goldstein and McCarthy, JJ., concur.

In an action, inter alia, to recover damages for breach of contract, the plaintiff *848appeals (1) from an order of the Supreme Court, Westchester County (Rudolph, J.), entered September 27, 2005, which granted the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7); (2) from a judgment of the same court dated October 18, 2005, which, upon the order, is in favor of the defendants and against him dismissing the complaint; and (3), as limited by his brief, from so much of an order of the same court entered February 22, 2006, as, upon renewal and reargument, adhered to the original determination in the order entered September 27, 2005, and denied that branch of his motion which was for recusal. Ordered that the appeal from the order entered September 27, 2005 is dismissed; and it is further, Ordered that the judgment is affirmed; and it is further, Ordered that the order entered February 22, 2006 is affirmed insofar as appealed from; and it is further, Ordered that one bill of costs is awarded to the defendants. The appeal from the intermediate order entered September 27, 2005 must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]). In reviewing a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Board of Educ. of City School Dist. of City of New Rochelle v County of Westchester, 282 AD2d 561, 562 [2001]). However, bare legal conclusions are not presumed to be true and are not accorded every favorable inference (see McKenzie v Meridian Capital Group, LLC, 35 AD3d 676 [2006]). On a motion to dismiss pursuant to CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see Leon v Martinez, supra at 87-88; Williams v Williams, 36 AD3d 693 [2007]; New York Community Bank v Snug Harbor Sq. Venture, 299 AD2d 329, 329-330 [2002]). Here, the defendants submitted documentary evidence which conclusively established defenses to the plaintiffs claims alleg*849ing a contract between the defendant Winged Foot Golf Club, Inc., and the plaintiff. Further, the Supreme Court correctly determined that the complaint failed to set forth a cause of action to recover damages for any of the remaining asserted claims. Moreover, the record does not support a finding that any of the statutory disqualifications set forth in Judiciary Law § 14 are applicable (see Matter of New York State Assn. of Criminal Defense Lawyers v Kaye, 95 NY2d 556, 561 [2000]). Absent a legal disqualification under Judiciary Law § 14, a court is the sole arbiter of its recusal (see People v Moreno, 70 NY2d 403, 405 [1987]). Here, the plaintiff failed to set forth any proof of bias or prejudice (see Tornheim v Tornheim, 28 AD3d 534, 535 [2006]; Modica v Modica, 15 AD3d 635, 636 [2005]; Colella v Colella, 11 AD3d 576 [2004]). Therefore, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs motion which was for recusal. Rivera, J.E, Ritter, Goldstein and Angiolillo, JJ., concur.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated October 28, 2005, which granted the plaintiffs motion for summary judgment on the issue of liability and denied their cross motion for summary judgment dismissing the complaint. Ordered that the order is modified, on the law, by deleting the provision thereof granting the plaintiffs motion for summary judgment on the issue of liability and substituting therefor a provision denying the motion; as so modified, the order is affirmed, without costs or disbursements. The plaintiff allegedly sustained injuries when he was struck by an exterior mirror located on the side of a school bus owned by the defendant Rivlab Transportation Corp. and operated by the defendant Brian R. Albano. The plaintiff, who had a poor recollection of the accident, testified that the last thing he remembered was standing on top of a median island in the intersection about 12 to 18 inches back from the curb, waiting for a red light to change. The defendant driver testified that as *850he approached the intersection in the right hand lane he observed the plaintiff step into the street and then step back onto the curb of the median. The defendant driver was traveling at about 25 miles per hour and intended to proceed straight through the intersection. Although he was no longer able to observe the plaintiff, about two seconds later when the bus was halfway across the intersection, the defendant driver heard a thump. It appeared that the plaintiff had been struck by one of the buses’ exterior mirrors. Viewing the evidence in light most favorable to the defendants, we find the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). “There can be more than one proximate cause of an accident” (Cox v Nunez, 23 AD3d 427 [2005]). The deposition testimony of the parties demonstrated that even if the bus was operated in a negligent manner, this did not establish, as a matter of law, that the plaintiff was free from comparative negligence (see Johnson v Lovett, 285 AD2d 627 [2001]; Carrasco v Monteforte, 266 AD2d 330, 331 [1999]). Thus, the Supreme Court should have denied the plaintiffs motion for summary judgment on the issue of liability (see Scibelli v Hopchick, 27 AD3d 720 [2006]). The defendants’ remaining contention is without merit. Schmidt, J.E, Spolzino, Krausman and Balkin, JJ., concur.

Order, entered on July 1, 1960, which denied defendant’s motion to dismiss the first, third, fifth and seventh causes of action, unanimously affirmed, without costs to either party. The court is constrained to follow the determination of this court in Wyman v. Pan American Airways (262 App. Div. 995, same case, 267 App. Div. 947, affd. 293 N. Y. 878) and the determination of the Second Department in Elliott v. Steinfeldt (254 App. Div. 739). The Federal act, in the case of a death caused by wrongful act upon the high seas, goes only so far as to confer upon the representative of the decedent a “ suit for damages in the district courts of the United States, in admiralty.” Rights of action and remedies in State courts to recover for such a death are, by the act, stated to be not affected insofar as provision for the same is made by “ any State statute ”. But here, the plaintiffs, in their respective alleged causes of action for wrongful death, do not purport to rely upon any statute of this State as the basis therefor, expressly pleading that the same are “brought pursuant to the provisions of Title 46, U.S.C. Section 761, et seq.” Consequently, but for such determinations in this and in the Second Department, we would hold that these alleged causes of action for wrongful death are not maintainable in this court. Such holding would be in accordance with the recent Federal court decisions which most clearly point out that the language of the Federal act and legislative history (see Higa case, cited below) do not authorize a cause of action at law to recover for wrongful death upon the high seas. (Higa v. Transocean Airlines, 230 F. 2d 780; Noel v. Linea Aeropostal Venezolana, 247 F. 2d 677, cert. denied 355 U. S. 907; Wilson v. Transocean Airlines, 121 F. Supp. 85; Lafrate v. Compagnie Generale Transatlantique, 106 F. Supp. 619. Concur — Botein, P. J., Breitel, Rabin, McNally and Eager, JJ. [24 Misc 2d 1010.]

In related actions, inter alia, to recover damages for breach of contract, the plaintiff in action No. 1 appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (LaMarca, J.), entered September 16, 2005, as granted those branches of the defendant’s motion which were for summary judgment dismissing its first and second causes of action and denied its cross motion for summary judgment in its favor, and the plaintiff in action No. 2 appeals, as limited by its brief, from so much of an order of the same court, also entered September 16, 2005, as granted those branches of the defendant’s motion which were for summary judgment dismissing its first and second causes of action and denied its cross motion for summary judgment in its favor. Ordered that the orders are affirmed insofar as appealed from, with one bill of costs. *851On November 24,1992 Laramie Springtree Corp. and Laramie Spring Valley Corp. (hereinafter the Laramie entities) entered into two nearly identical agreements, the “Springtree Agreement” and the “Spring Valley Agreement” with the defendant’s predecessor. Under the terms of the agreements, the defendant’s predecessor obtained two adjoining parcels of land referred to as the “Springtree Parcel” and the “Spring Valley Parcel.” These two parcels were operated as a single residential apartment complex called the “Overlook.” The agreements provided each Laramie entity with a right of first refusal to purchase each parcel “on the same terms and conditions” as contained in a bona fide third-party offer, should the defendant ever seek to sell the properties. In October 2003 the defendant received an offer to buy the Overlook from Sagebrush Realty Investments, Inc. (hereinafter Sagebrush), for a combined price of $15.4 million. The defendant sent notice of the proposed sale to both Laramie entities, and they demanded a breakdown of the proposed purchase price as to each parcel. Sagebrush’s offer was for both properties as a single unit, and the defendant did not provide the requested breakdown. Additionally, the Laramie entities did not consent to the sale or match the terms of Sagebrush’s offer. The defendant sold the Overlook to Sagebrush on February 4, 2004. “The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]; see Kaufman v Village of Mamaroneck, 18 AD3d 505 [2005]; Nissequogue Boat Club v State of New York, 14 AD3d 542, 544 [2005]). In order to invoke the doctrine, the identical issue necessarily must have been decided in the prior action and the party precluded form relitigating the issue must have had a full and fair opportunity to contest the prior determination (see Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]). Here, the defendant met its burden of demonstrating that the identical issue that is dispositive of the Laramie entities’ breach of contract causes of action was necessarily decided in a prior action, Laramie Springtree Corp. v Equity Residential Props. Trust (303 AD2d 464, 465 [2003]), and the Laramie entities failed to establish a lack of an opportunity to fully and fairly litigate this issue. In the prior action, this Court determined that the defendant did not breach the Springtree agreement by refusing to sell one parcel, the Springtree parcel, after a bona *852fide third-party offered to buy both the Springtree and Spring Valley parcels as a combined whole. The breach of contract causes of action in the instant actions also involve the identical issue based upon the exact same contract provision language. Additionally, because Laramie Springtree Corp., the plaintiff in the prior action, and Laramie Spring Valley Corp., are in privity, the breach of contract causes of action asserted by Laramie Spring Valley Corp. are also barred by collateral estoppel. Both entities have the same president, Mark Silverman, and the same principals. Silverman also entered into both agreements on the same day for each of the Laramie entities. Therefore, there was unity of interest between Laramie Springtree Corp. and Laramie Spring Valley Corp. Additionally, they both sought to establish a breach of the agreements by the defendant’s efforts to sell the parcels as a unit (see Buechel v Bain, supra at 304; Altegra Credit Co. v Tin Chu, 29 AD3d 718, 720 [2006]; Glenriver, Inc. v Winchester Global Trust Co. Ltd., 28 AD3d 517, 517 [2006]). Accordingly, in both actions, the Supreme Court properly granted those branches of the defendant’s motions which were for summary judgment dismissing the first and second causes of action in the Laramie entities’ complaints and denied the Laramie entities’ cross motions for summary judgment in their favor. The Laramie entities’ remaining contentions are without merit. Schmidt, J.E, Santucci, Krausman and Balkin, JJ., concur.

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated January 18, 2006, as denied that branch of her motion which was for leave to renew that branch of the defendant’s prior motion which was for summary judgment dismissing so much of the complaint as sought to recover damages for loss of a fetus, which was originally granted in orders dated July 13, 2005 and November 3, 2005, respectively. Ordered that the order dated January 18, 2006 is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff’s motion which was for leave to renew is granted, and upon renewal, that branch of the defendant’s motion which was for summary judgment dismissing so much of the complaint as sought to recover damages for loss of a fetus is denied, and those portions of the orders dated July 13, 2005 and November 3, 2005, respectively, which granted that branch of the defendant’s motion are vacated. A motion for leave to renew is addressed to the sound discre*853tion of the court (see Matheus v Weiss, 20 AD3d 454 [2005]; Mi Ja Lee v Glicksman, 14 AD3d 669, 670 [2005]). Moreover, “[t]he requirement that a motion for leave to renew be based upon newly-discovered facts is a flexible one and a court, in its discretion, may grant renewal upon facts known to the moving party at the time of the original motion” (Gadson v New York City Hous. Auth., 263 AD2d 464 [1999]; see Allison v D’Agostino Supermarkets, 282 AD2d 219 [2001]; Daniel Perla Assoc. v Ginsberg, 256 AD2d 303 [1998]). Under the circumstances of this case, the Supreme Court should have exercised its discretion to grant that branch of the plaintiffs motion which was for leave to renew and, upon renewal, deny that branch of the defendant’s motion which was for summary judgment dismissing so much of the complaint as sought damages for loss of a fetus. Although the defendant made a prima facie showing that its alleged conduct and the loss of the fetus were not causally related, the affirmation submitted by the plaintiff’s medical expert on renewal raised a triable issue of fact (see Matheus v Weiss, supra; Mi Ja Lee v Glicksman, supra; Allison v D’Agostino Supermarkets, supra; Gadson v New York City Hous. Auth., supra; Daniel Perla Assoc. v Ginsberg, supra). Whether the plaintiff suffered a partial abruption resulting in the loss of the plaintiffs unborn child, as the plaintiffs expert opined, must await determination at a trial. Mastro, J.E, Florio, Garni and McCarthy, JJ., concur.

Judgment unanimously modified on the law and on the facts to delete therefrom the first decretal paragraph thereof, and in lieu thereof to order, adjudge and decree that the plaintiff B. W. Dyer & Co. recover of defendant Monitz, Wallack & Colodney a sum of money equal to the difference between the amount of $133,109.72 received by it on the sale of the sugar and the amount of its charges ($44,390.71, freight, etc. plus $82,000) against the same other than the April 13, 3956 item of $23,000, reduced to $6,500 and interest thereon. Such difference is computed and found by the court to be the sum of $1,221.90; and plaintiff B. W. Dyer & Co. shall have recovery against defendant Monitz, Wallack & Colodney for such sum of $1,221.90, with interest thereon from June 1, 1957, with taxable costs in the court below, but without costs of the appeal. The judgment is otherwise unanimously affirmed, without costs. The defendant Monitz, Wallack & Colodney was not a pledgee in good faith and for value with respect to the sum of $23,000 represented by said April 13, 1956 item. The purported charge of such item against the security of the documents of title for the sugar was no more than a mere bookkeeping entry on the transfer of such funds to the futures trading account of Skrod, and, thereupon, upwards of $6,500 of such item was applied to liquidate antecedent indebtedness of Skrod. Monitz, therefore, did not acquire a valid claim, as against the proceeds of sale of the sugar, for the balance of $6,500 and interest which remained unpaid on said item. (Cf. Adams v. Bowerman, 109 N. Y. 23.) In fact, the said defendant did not upon the trial of this action seriously take the position that it was entitled to claim credit on account of such item. Settle order on notice. Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated January 11, 2006, which denied, with leave to renew upon the completion of discovery, their motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted. On May 10, 2004 the infant plaintiff allegedly was injured in a brief fight with another student in the schoolyard of a public elementary school located in Brooklyn. The infant plaintiff, by his father, and the father, individually, commenced this action against the City of New York and the Board of Education of the *854City of New York, alleging, inter alia, that they were negligent in failing to properly supervise the students at the school. The Supreme Court denied, with leave to renew upon the completion of discovery, the defendants’ motion for summary judgment dismissing the complaint. We reverse. Although schools are under a duty to adequately supervise the students under their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision, schools are not insurers of the safety of their students, for they cannot reasonably be expected to continuously supervise and control all of the students’ movements and activities (see Mirand v City of New York, 84 NY2d 44, 49 [1994]; Convey v City of Rye School Dist., 271 AD2d 154, 159 [2000]). Moreover, “liability for injuries resulting from a fight between two students cannot be predicated on negligent supervision if the plaintiff was a voluntary participant in the fight” (Williams v Board of Educ. of City School Dist. of City of Mount Vernon, 277 AD2d 373, 373 [2000]; see Janukajtis v Fallon, 284 AD2d 428, 430 [2001]; Danna v Sewanhaka Cent. High School Dist., 242 AD2d 361, 362 [1997]). Here, the defendants established, prima facie, that the infant plaintiff was a voluntary participant in the fight, and thus, the alleged inadequacy of their supervision could not be considered a cause of the infant plaintiffs injuries (see Ruggerio v Board of Educ. of City of Jamestown, 31 AD2d 884 [1969], affd 26 NY2d 849 [1970]; Williams v Board of Educ. of City School Dist. of City of Mount Vernon, supra at 373; Danna v Sewanhaka Cent. High School Dist., supra at 362). In opposition, the plaintiffs failed to raise a triable issue of fact. Schmidt, J.P., Santucci, Krausman and Balkin, JJ., concur.

In an action to recover damages for personal injuries, the defendant Cobar Construction Corp. appeals from an order of the Supreme Court, Queens County (Elliot, J.), dated July 27, 2005, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it by the plaintiff Barbara Losito. *855Ordered that the order is affirmed, with one bill of costs. The plaintiff Barbara Losito was injured when she tripped over a two-inch metal object protruding from the roadway on Queens Boulevard at the intersection of 63rd Drive. Losito commenced this action against the City of New York and Cobar Construction Corp. (hereinafter Cobar) alleging that the latter caused or created the metal object to be imbedded in the roadway during construction work it undertook in the area. Losito’s contention that Cobar failed to offer good cause for its untimely motion for summary judgment was not raised in opposition to the motion and, therefore, is not properly before this Court (see Charles v Jamaica Hosp., 30 AD3d 459 [2006]; LaBella v Allstate Ins. Co., 261 AD2d 367, 368 [1999]). A contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk (see Brown v Welsbach Corp., 301 NY 202, 205 [1950]; Kleeberg v City of New York, 305 AD2d 549, 550 [2003]). Here, Cobar failed to satisfy its prima facie burden of demonstrating that it did not create or cause the allegedly dangerous condition over which Losito tripped and fell (see Cabrera v City of New York, 21 AD3d 1047,1048 [2005]; Finegold v Brooklyn Union Gas Co., 202 AD2d 469, 470 [1994]; cf. Kruszka v City of New York, 29 AD3d 742, 743-744 [2006]). The failure to make such a showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the Supreme Court properly denied Cobar’s motion for summary judgment dismissing the complaint insofar as asserted against it by Losito. Miller, J.P., Spolzino, Goldstein and McCarthy, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Murphy, J.), entered March 10, 2006, which granted the defendants’ motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. While attempting to disembark a bus owned and operated by *856the defendants, the plaintiff slipped on a step which she described as wet and slushy, and fell from the bus. It is undisputed that a heavy snow had fallen several days earlier and that passengers were tracking snow, slush, and water from the ground onto the bus. After the plaintiff commenced this action to recover damages for personal injuries allegedly sustained by her in the accident, the defendants moved for summary judgment, claiming, inter alia, that the accident was not the result of any breach of a duty on their part. The defendants established their prima facie entitlement to summary judgment (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). The evidence submitted by the defendants, including the plaintiffs deposition testimony and that of the bus driver, established that the defendants did not breach a duty owed to the plaintiff since, under the weather conditions which existed at the time of the accident, “[i]t would be unreasonable to expect the defendants] to constantly clean the floor[s] of [their] buses” (Spooner v New York City Tr. Auth., 298 AD2d 575, 575-576 [2002]; see Hussein v New York City Tr. Auth., 266 AD2d 146, 146-147 [1999]). The evidence submitted by the plaintiff in opposition to the motion failed to raise a triable issue of fact (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Indig v Finkelstein, 23 NY2d 728, 729 [1968]). Miller, J.E, Spolzino, Ritter and Dillon, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), entered February 14, 2006, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied. Contrary to the Supreme Court’s determination, the defendants failed to establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In support of the defendants’ motion, the defendants relied upon, inter alia, the affirmed medical report *857of their examining orthopedic surgeon, who examined the plaintiff on March 25, 2005. In his affirmed report, the orthopedic surgeon set forth the findings in a prior X-ray report of the plaintiffs cervical spine, as well as the evidence of acromioclavicular osteoarthritis in the plaintiffs right shoulder as set forth in a prior magnetic resonance imaging report. He deemed those findings to be degenerative in nature, pre-existing the subject accident. The orthopedic surgeon also set forth range of motion findings based on his examination of the plaintiffs cervical spine and shoulders. In doing so, he failed to compare any of those numeric findings to what is deemed normal ranges of motion for those regions of the plaintiffs body (see Harman v Busch, 37 AD3d 537 [2007]; Iles v Jonat, 35 AD3d 537, 538 [2006]; Mirochnik v Ostrovskiy, 35 AD3d 413 [2006]; Kavanagh v Singh, 34 AD3d 744, 745-746 [2006]). While he admitted that the numeric findings concerning the plaintiffs cervical spine amounted to a “mild” limitation and were consistent with the degenerative changes noted in the plaintiffs cervical X-ray report, he made no such claim with respect to the numeric findings concerning the plaintiffs bilateral shoulder range of motion. In fact, he admitted that the plaintiff appeared to suffer from traumatic aggravation of right shoulder acromioclavicular osteoarthritis as a result of the subject accident, which was alleged by the plaintiff in his amended bill of particulars. When reviewed, the numeric findings regarding bilateral shoulder range of motion, as set forth in the orthopedist’s report, evinced apparent limitations when compared to one another. Absent a comparative quantification of those findings observed in his report as to what is normal, it cannot be concluded that the range of motion in the plaintiffs right shoulder was normal, or that any limitations were mild, minor, or slight so as to be considered insignificant within the meaning of the no-fault statute (see Harman v Busch, supra; Iles v Jonat, supra; McCrary v Street, 34 AD3d 768 [2006]; Whittaker v Webster Trucking Corp., 33 AD3d 613 [2006]; Yashayev v Rodriguez, 28 AD3d 651 [2006]; Kaminsky v Waldner, 19 AD3d 370 [2005]; see also Gaddy v Eyler, supra at 957; Licari v Elliott, 57 NY2d 230, 236 [1982]). Moreover, the defendants also relied on the affirmed medical report of another orthopedic surgeon, who examined the plaintiff on May 16, 2003. In his report, concerning the plaintiffs cervical spine range of motion, he merely noted that the plaintiff was able to move his neck “in all directions without any deficits.” However, he failed to set forth the objective testing that he performed in order to arrive at this conclusion (see Schacker v County of Orange, 33 AD3d 903, 904 [2006]; Ilardo v New York City Tr. Auth., 28 AD3d 610, 611 [2006]; Kelly v *858Rehfeld, 26 AD3d 469, 470 [2006]; Nembhard v Delatorre, 16 AD3d 390, 391 [2005]). This orthopedic surgeon further conceded the existence of limitations in the plaintiff’s right, shoulder range of motion, especially in forward flexion and abduction. However, he never compared those findings to what is deemed normal ranges of motion for such tests (see Harman v Busch, supra; Iles v Jonat, supra; Mirochnik v Ostrovskiy, supra; Kavanagh v Singh, supra; Caracci v Miller, 34 AD3d 515 [2006]; Agathe v Tun Chen Wang, 33 AD3d 737, 738 [2006]; Mondi v Keahon, 32 AD3d 506, 507 [2006]; Benitez v Mileski, 31 AD3d 473, 474 [2006]). He further noted that the medical reports of the plaintiff, which he reviewed, showed a prior degenerative process in the plaintiff’s right shoulder. However, he still concluded that the plaintiff sustained an aggravation of that prior condition as a result of the subject accident. With that, he set forth the numeric limitations in the range of motion of the plaintiff’s right shoulder based on his examination of the plaintiff. His report evinced that the traumatic aggravation to the pre-existing condition in the plaintiffs right shoulder, as caused by the subject accident, resulted in the limitations in right shoulder range of motion observed by him and noted in his report. Absent a comparative quantification of those numeric limitations observed in his report as to what is normal, it cannot be concluded that the decreased range of motion in the plaintiff’s right shoulder, as conceded by this orthopedic surgeon, is mild, minor, or slight so as to be considered insignificant within the meaning of the no-fault statute (see Harman v Busch, supra; Iles v Jonat, supra; McCrary v Street, supra; Whittaker v Webster Trucking Corp., supra; Yashayev v Rodriguez, supra; Kaminsky v Waldner, supra; see also Gaddy v Eyler, supra; Licari v Elliott, supra). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether the plaintiffs papers submitted in opposition raised a triable issue of fact (see Harman v Busch, supra; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Mastro, J.E, Ritter, Skelos, Garni and McCarthy, JJ., concur.

In an action pursuant to RRAFL article 15, inter alia, to quiet *859title to real property, the defendant JD Venture Capital, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered August 14, 2006, as denied that branch of its cross motion which was for summary judgment, and granted those branches of the plaintiffs’ cross motion which were for summary judgment vacating a foreclosure sale of the subject real property conducted on March 29, 2006, and declaring invalid the referee’s deed to the real property dated March 29, 2006, and delivered to the defendant JD Venture Capital, LLC, pursuant to the foreclosure sale. Ordered that the order is affirmed insofar as appealed from, with costs. Under the circumstances presented, the Supreme Court correctly vacated the foreclosure sale. In support of their cross motion for summary judgment vacating the foreclosure sale of the subject real property conducted on March 29, 2006, and declaring invalid the referee’s deed to the real property dated March 29, 2006, and delivered to the defendant JD Venture Capital, LLC, pursuant to the foreclosure sale, the plaintiffs made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the mortgagee failed to comply with the applicable foreclosure sale notice provisions of the Real Property Actions and Proceedings Law, and that a substantial right of the plaintiff mortgagor Claudette Bogle was prejudiced as a result (see RPAPL 231 [6]). In opposition, the defendant grantee JD Venture Capital, LLC (hereinafter JDVC), failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Supreme Court correctly granted those branches of the plaintiffs’ cross motion which were for summary judgment vacating the foreclosure sale and declaring invalid the referee’s deed and correctly denied that branch of JDVC’s cross motion which was for summary judgment. JDVC’s remaining contentions are without merit. Since this action seeks declaratory relief, the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the referee’s deed to the subject real property dated March 29, 2006, and delivered to JDVC, pursuant to a foreclosure sale conducted on March 29, 2006, is invalid (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Miller, J.P, Spolzino, Ritter and Dillon, JJ, concur.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated April 6, 2006, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted. On November 2, 2003 the plaintiff was assaulted by another patron at the Bellerose Lanes bowling alley owned by the defendant. The plaintiff claims, inter alia, that the defendant was negligent in failing to protect him from the assault. The defendant moved for summary judgment, arguing that it had not breached any duty it owed to the plaintiff because the assault was a spontaneous and unforeseen criminal act by a third party for which it could not be held liable. While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner’s duty to control the conduct of persons on its premises *861arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control (see D’Amico v Christie, 71 NY2d 76, 85 [1987]; Petras v Saci, Inc., 18 AD3d 848 [2005]; Cutrone v Monarch Holding Corp., 299 AD2d 388, 389 [2002]). Thus the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults (id.). The defendant demonstrated its prima facie entitlement to summary judgment based on, inter alia, the plaintiffs deposition testimony that, before the assault, his assailant had done nothing to him other than laugh at him, and the deposition testimony of the defendant’s employee that before the assault, the assailant had not caused any problems and that the assault happened suddenly and without warning (see Cutrone, supra at 389). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). The evidence relied upon by the plaintiff was in large part speculative and failed to demonstrate that the defendant’s employees could reasonably have anticipated or prevented the assault of the plaintiff. Thus, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint. Mastro, J.E, Florio, Garni and McCarthy, JJ., concur.

In an action to recover no-fault medical payments under contracts of insurance, the plaintiffs appeal from an order of the Supreme Court, Nassau County (McCarty, J.), dated August 2, 2006, which denied the motion of the plaintiff Montefiore Medical Center, as assignee of Sherice Haye, for summary judgment in its favor on the first cause of action. Ordered that the appeal by the plaintiff New York and Presbyterian Hospital, as assignee of Haydee Marca, is dismissed, as that plaintiff is not aggrieved by the order appealed from (see CPLR 5511), and it is further, Ordered that the order is affirmed; and it is further, Ordered that one bill of costs is awarded to the defendant. Contrary to the contention of the plaintiff Montefiore Medical *862Center, as assignee of Sherice Haye (hereinafter Montefiore), the Supreme Court properly denied its motion for summary judgment in its favor on the first cause of action. In response to Montefiore’s prima facie showing of entitlement to judgment as a matter of law (see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indent. Co., 32 AD3d 458 [2006]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005] ), the defendant submitted the hospital records of the patient and other material which raised a triable issue of fact as to whether the condition for which the patient was treated was unrelated to her motor vehicle accident (see generally St. Luke’s Roosevelt Hosp. v Allstate Ins. Co., 303 AD2d 743 [2003]). Accordingly, a triable issue of fact exists regarding whether the defendant’s denial of no-fault benefits in this case was proper. Montefiore’s remaining contentions are without merit. Mastro, J.E, Florio, Garni and McCarthy, JJ., concur.

*863In an action, inter alia, for a judgment declaring that the defendant Utica National Assurance Company is obligated to defend and indemnify the plaintiffs in two underlying personal injury actions entitled Karim v Natural Stone Indus., and Sattar v Natural Stone Indus., both pending in the Supreme Court, Queens County, under index Nos. 6031/03 and 1241/02, respectively, the defendant Utica National Assurance Company appeals from an order of the Supreme Court, Queens County (Hart, J.), dated April 24, 2006, which denied its motion for summary judgment in its favor. Ordered that the order is reversed, on the law, with costs, the appellant’s motion for summary judgment dismissing the complaint is granted, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant Utica National Assurance Company is not obligated to defend and indemnify the plaintiffs in the two underlying personal injury actions entitled Karim v Natural Stone Indus. and Sattar v Natural Stone Indus., both pending in the Supreme Court, Queens County, under index Nos. 6031/03 and 1241/02 respectively. The defendant Utica National Assurance Company (hereinafter Utica) established its prima facie entitlement to summary judgment by demonstrating that it did not receive timely notice of the subject occurrence and properly disclaimed coverage (see Schoenig v North Sea Ins. Co., 28 AD3d 462, 463 [2006]; Modern Cont. Constr. Co., Inc. v Giarola, 27 AD3d 431 [2006]; Steinberg v Hermitage Ins. Co., 26 AD3d 426 [2006]). In response, the plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). Contrary to the plaintiffs’ contention, their notice of claim, made six months after the accident, was untimely as a matter of law (see Modern Cont. Constr. Co., Inc. v Giarola, supra at 433), and their belief that they could not legally be held liable for any damages sustained by the plaintiffs in the underlying personal injury actions was unreasonable as a matter of law (see Labor Law § 240; DiVincenzo v Plaza Farms Dev., 269 AD2d 842 [2000]) despite an indication that they would not be sued (see E.B. Gen. Contr. v Nationwide Ins. Co., 189 AD2d 796 [1993]; Platsky v Government Empls. Ins. Co., 181 AD2d 764 [1992]). Accordingly, Utica’s motion for summary judgment should have been granted. Since this is a declaratory judgment action, we remit the mat*864ter to the Supreme Court, Queens County, for the entry of a judgment declaring that Utica is not obligated to defend and indemnify the plaintiffs in the underlying personal injury actions. Rivera, J.E, Ritter, Goldstein and Angiolillo, JJ., concur.

In a matrimonial action in which the parties were divorced by judgment entered February 28, 2001, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (McNulty, J.), dated May 30, 2006, as denied that branch of her motion which was to modify a stipulation of settlement and modification agreement, dated August 24, 2001, so as to permit her new husband to be in the children’s presence and company. Ordered that the order is affirmed insofar as appealed from, without costs or disbursements. As part of the custody and visitation portion of a stipulation of settlement dated July 21, 2000, it was agreed by the parties that, for one year following the execution of the stipulation of settlement, the defendant former wife (hereinafter the mother) “shall not have the children in the presence of’ a certain named individual, who was a convicted felon (see People v Kuethman, 156 AD2d 472 [1989]). Pursuant to a so-ordered stipulation of settlement and modification agreement dated August 24, 2001, the condition excluding said individual from the childrens’ presence during the mother’s visitation was extended “for as long as the children are unemancipated.” On November 15, 2003 the mother married the individual in question. Nonetheless, by further modification agreement dated October 11, 2004, the parties, inter alia, ratified the condition on the mother’s visitation privileges, and agreed not to make further applications for modification until September 1, 2005. In October 2005 the mother moved to modify the custody and visitation arrangement, inter alia, to change custody to her or, alternatively, to expand visitation so as to allow her new husband to be present when her children are in her custody. The Supreme Court denied the motion, without a hearing, finding that the mother had not demonstrated a change of circumstances which might indicate that the best interests of the children would warrant any modification of the existing custody and visitation arrangement. We agree. The mother has failed to make an evidentiary showing of a previously uncontemplated change of circumstances *865sufficient to warrant a hearing as to whether, under the totality of the circumstances, it would be in the children’s best interest to have contact with the mother’s new husband (see Matter of Miller v Lee, 225 AD2d 778 [1996]; cf. Matter of Hight v Hight, 19 AD3d 1159 [2005]). Crane, J.E, Goldstein, Fisher and Lifson, JJ., concur.

*866In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated September 28, 2005, as granted that branch of the defendants’ motion which was for summary judgment dismissing so much of the complaint as sought to recover damages based upon the theory of design defect. Ordered that the order is affirmed insofar as appealed from, with one bill of costs. On their motion, the defendants demonstrated their entitlement to summary judgment dismissing so much of the complaint as sought to recover damages based upon the theory of design defect, by establishing through competent expert evidence that the allegedly defective “lacquer sealer” had no feasible alternative design (see Voss v Black & Decker Mfg. Co., 59 NY2d 102, 108 [1983]). In response, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court correctly granted that branch of the defendants’ motion which was for summary judgment dismissing so much of the complaint as sought to recover damages based upon the theory of design defect (see Perez v Radar Realty, 34 AD3d 305 [2006]; Felix v Akzo Nobel Coatings, 262 AD2d 447, 449 [1999]; see also Rodriguez v Sears, Roebuck & Co., 22 AD3d 823, 824 [2005]; Banks v Makita, U.S.A., 226 AD2d 659, 660 [1996]). The plaintiffs’ contention that the Supreme Court improperly vacated a certain stipulation is not properly before this Court (see Matter of Roman v Roman, 8 AD3d 394, 395 [2004]; Schlein v White Plains City School Dist., 292 AD2d 367 [2002]; see also Sample v Levada, 8 AD3d 465, 468 [2004]). The plaintiffs’ remaining contentions are without merit. Rivera, J.E, Santucci, Angiolillo and Dickerson, JJ., concur.

In a matrimonial action in which the parties were divorced by judgment dated January 16, 1987, the defendant appeals from an order of the Supreme Court, Westchester County (Montagnino, R.), dated August 24, 2005, which, inter aha, granted that branch of the plaintiffs motion which was to compel the sale of the former marital residence and directed that the proceeds therefrom be divided equally between the parties, and denied her cross motion, among other things, for an attorney’s fee. Ordered that the order is affirmed, with costs. A stipulation of settlement in a matrimonial action is a contract subject to principles of contract interpretation (see Rainbow v Swisher, 72 NY2d 106, 109 [1988]; Perry v Perry, 13 AD3d 508, 508-509 [2004]; Douglas v Douglas, 7 AD3d 481, 482 [2004]). Where the stipulation is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence (see Rainbow v Swisher, supra; Sieratzki v Sieratzki, 8 AD3d 552, 553-554 [2004]). Although partial performance of an oral modification of an agreement may render the modification enforceable (see Rose v Spa Realty Assoc., 42 NY2d 338, 341 [1977]; Richardson & Lucas, Inc. v New York Athletic Club of City of N.Y., 304 AD2d 462, 463 [2003]), the defendant former wife failed to establish that such an oral modification occurred in the instant case. Therefore, the Supreme Court properly granted the plaintiff former husband’s motion to compel the sale of the former marital home pursuant to the parties’ stipulation of settlement. The appellant’s remaining contentions are without merit. Miller, J.E, Spolzino, Ritter and Dillon, JJ., concur.

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated January 28, 2005, which, after a hearing to redetermine the defendant’s sex offender risk level pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]), designated him a level three sex offender pursuant to Correction Law article 6-C. Ordered that the order is affirmed, without costs or disbursements. The defendant is correct that the Supreme Court failed to set *867forth the findings of fact and conclusions of law upon which its determination was based, as required by Correction Law § 168-n (3). However, remittitur is not required because the record is sufficient for this Court to make its own findings of fact and conclusions of law (cf. People v Villane, 17 AD3d 336 [2005]). We find that the People met their burden of proving by clear and convincing evidence the facts that supported the defendant’s adjudication as a level three sex offender (see Correction Law § 168-n [3]; People v Morales, 33 AD3d 982 [2006]; People v Dong V. Dao, 9 AD3d 401 [2004]). Contrary to the defendant’s contention, nothing said at or before the hearing indicated that he and the victim were other than “strangers” within the meaning of the Sex Offender Registration Act (see Board of Examiners of Sex Offenders, Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 13 [2006 revisions]; cf. People v McGraw, 24 AD3d 525 [2005]). Similarly, his refusal to attend sex offender treatment while incarcerated was not disputed and, in any event, was evidenced by his Department of Correctional Services record. Thus, the defendant was properly assessed points under risk factors 7 and 12 of the risk assessment instrument. In any event, even if the contested points were disallowed, the defendant would remain a presumptive level three sex offender and, at the hearing, the defendant neither argued nor presented evidence that there existed any mitigating factor of a kind or to a degree not otherwise adequately taken into account by the guidelines that would warrant a discretionary downward departure from this presumptive designation (see People v Guaman, 8 AD3d 545 [2004]). The defendant’s remaining contentions are unpreserved for appellate review. Rivera, J.P, Ritter, Goldstein and Angiolillo, JJ., concur.

Appeals by the defendant from (1) an order of the Supreme Court, Richmond County (Rienzi, J.), dated May 27, 2005, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C, in connection with his conviction of sexual abuse in the first degree, and (2) an order of the same court also dated May 27, 2005, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C, in connection with his conviction of attempted sodomy in the first degree. Ordered that the orders are affirmed, without costs or disbursements. *868The defendant, who pleaded guilty to sexual abuse in the first degree and attempted sodomy in the first degree, and was designated a presumptive risk level three sex offender (see Correction Law § 168-/), argues that the court should have exercised its discretion and departed from this designation down to a risk level two (see Correction Law § 168-m). We disagree. A court, in the exercise of its discretion, may depart from the presumptive risk level determined by the risk assessment instrument based upon the facts in the record (see People v Inghilleri, 21 AD3d 404, 405 [2005]; People v Girup, 9 AD3d 913 [2004]; People v Guaman, 8 AD3d 545 [2004]). However, “utilization of the risk assessment instrument will generally ‘result in the proper classification in most cases so that departures will be the exception not the rule’ ” (People v Guaman, supra at 545, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]). “A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines’ ” (People v Inghilleri, supra at 405-406, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; see People v Mount, 17 AD3d 714, 715 [2005]; People v Girup, supra; People v Guaman, supra). Contrary to the defendant’s contentions, the Supreme Court, in designating him a level three sex offender, properly relied on the defendant’s 120-point risk assessment score, which the defendant conceded was accurate, as well as the clinical diagnosis of the defendant as a pedophile, along with the lack of documentation that the defendant had completed sex offender counseling. The defendant failed to prove any mitigating factor which would warrant a downward departure. Accordingly, the Supreme Court providently exercised its discretion in designating the defendant a level three sex offender (see Correction Law § 168-m). The defendant’s remaining contentions are without merit. Rivera, J.E, Santucci, Angiolillo and Dickerson, JJ., concur.

In an action to recover damages for personal injuries and property damage, the plaintiffs appeal from an order of the Supreme Court, Queens County (Polizzi, J.), dated February 22, 2006, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff Peter Phillips did not sustain a serious injury within the meaning of Insurance Law *869§ 5102 (d), and denied, as academic, their cross motion for summary judgment on the issue of liability. Ordered that the order is reversed, on the law, the defendants’ motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Supreme Court for a determination of the plaintiffs’ cross motion on the merits. The defendants made a prima facie showing that the plaintiff Peter Phillips did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Baez v Rahamatali, 6 NY3d 868, 869 [2006]; Ranzie v Abdul-Massih, 28 AD3d 447, 448 [2006]; Wright v Peralta, 26 AD3d 489 [2006]). The plaintiffs, however, raised a triable issue of fact as to whether the plaintiff Peter Phillips sustained a serious injury (see Pommells v Perez, 4 NY3d 566, 577 [2005]). Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint. In addition, the Supreme Court should have determined the plaintiffs’ cross motion on the issue of liability both as it relates to the serious injury claim and to the plaintiffs’ claim for property damage. Therefore, we remit the matter to the Supreme Court for a determination of the plaintiffs’ cross motion on the merits. Mastro, J.P, Ritter, Skelos, Garni and McCarthy, JJ., concur.

In an action to recover damages for personal injuries, etc., the defendant Key Bank USA, N.A., now known as Keybank National Association, appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered December 12, 2005, as denied that branch of its motion which was pursuant to CPLR 3211 (a) (5) to dismiss the amended complaint insofar as asserted against it as time-barred. The appeal brings up for review so much of an order of the same court entered April 18, 2006, as, upon reargument, denied that branch of the motion of the defendant Key Bank USA, N.A., now known as Keybank National Association, which was to sever the third-party actions, and adhered to its original determination denying that branch of the motion which was pursuant to CPLR 3211 (a) (5) to dismiss the amended complaint insofar as asserted against it as time-barred (see CPLR 5517 [b]). *870Ordered that the appeal from so much of the order entered December 12, 2005, as denied that branch of the motion of the defendant Key Bank USA, N.A., now known as Keybank National Association, which was pursuant to CPLR 3211 (a) (5) to dismiss the plaintiffs’ amended complaint insofar as asserted against it is dismissed as superseded by the order entered April 18, 2006, made upon reargument; and it is further, Ordered that the order entered April 18, 2006 is affirmed insofar as reviewed; and it is further, Ordered that one bill of costs is awarded to the plaintiffs. In opposition to the prima facie showing made by the defendant Key Bank USA, N.A., now known as Keybank National Association (hereinafter Keybank), pursuant to CPLR 3211 (a) (5) that the action insofar as asserted against it was time-barred, the plaintiffs successfully carried their burden of establishing the applicability of the relation-back doctrine (see CPLR 203 [f]; Austin v Interfaith Med. Ctr., 264 AD2d 702, 703 [1999]). In order for claims against one defendant to relate back to claims asserted against another, the plaintiffs must establish that (1) both claims arose out of the same conduct, transaction, or occurrence, (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that the new party will not be prejudiced in maintaining its defense on the merits, and (3) the new party knew or should have known that, but for a mistake by the plaintiffs as to the identity of the proper parties, the action would have been brought against that party as well (see Buran v Coupal, 87 NY2d 173, 178 [1995]; Pappas v 31-08 Café Concerto, 5 AD3d 452, 453 [2004]; Brock v Bua, 83 AD2d 61, 69 [1981]). Here, it is undisputed that the first two prongs of the test were satisfied. Further, the plaintiffs demonstrated that their initial failure to name Keybank as a defendant was a mistake, rather than an intentional decision not to assert the claim in order to gain a tactical advantage (see Buran v Coupal, supra at 181; Losner v Cashline, L.P., 303 AD2d 647, 649 [2003]; cf. Contos v Mahoney, 36 AD3d 646 [2007]; Snolis v Biondo, 21 AD3d 546, 546-547 [2005]). The Supreme Court properly determined that Keybank knew or should have known of the plaintiffs’ claims (see Losner v Cashline, L.P., supra at 649; Austin v Interfaith Med. Ctr., supra at 704), since it received a substantial insurance check for damage to the subject vehicle less than one month after the accident. Accordingly, the Supreme Court correctly denied that branch of Keybank’s motion which was to dismiss the amended complaint insofar as asserted against it as time-barred. *871To the extent that Keybank raises issues concerning that branch of its motion which was for summary judgment on its cross claims seeking common-law and contractual indemnification, we note that such issues are not properly before us, as that branch of the motion remains pending and undecided in the Supreme Court (see Katz v Katz, 68 AD2d 536, 542-543 [1979]). Finally, Keybank has failed to persuade us that, upon reargument, the Supreme Court improvidently exercised its discretion in denying that branch of its motion which was to sever the third-party actions (see Lamarca v Super Structure Bldrs., Inc., 35 AD3d 818 [2006]; Naylor v Knoll Farms of Suffolk County, Inc., 31 AD3d 726 [2006]). Crane, J.E, Skelos, Covello and Dickerson, JJ., concur.

Appeal (1) from an order of the Supreme Court at Special Term, entered June 28, 1960, which denied a motion by appellant for summary judgment and granted a cross motion by respondents for summary judgment, and award a sum of money to respondents and (2) from the judgment entered thereon. Memorandum by the court. Order and judgment (one paper) modified on the law and on the facts to the extent of deleting therefrom the second, third and fourth decretal paragraphs and denying the cross motion for summary judgment, with $10 costs, and otherwise affirmed, with costs to abide the event. It is the contention of the appellant that the three documents comprising the agreement as to fees spell out a contingent arrangement only. It is urged that whatever obligation arose with respect to the payment of fees was not absolute, but was contingent upon rent being collected. Furthermore, it is the appellant’s position that the acceleration provision upon a sale of the property referred only to a sale of the premises during an actual tenancy. The respondents, on the other hand, take the position that there was nothing contingent with respect to the obligation to pay the fees they claim they earned; thát while such fees were to be paid out of rents collected, the amount due was absolute and the balance of the full amount above what was received from rent collections was to be paid upon a sale of the property no matter when such sale took place. The issues thus raised cannot be resolved through an examination of the documents alone nor can • it be said that the affidavits of either side establish the position of either party so clearly that we can say that there is no issue to be tried. While the documents provide for the acceleration of payment of “ the *599remaining sums payable ” upon a sale of the property, they are silent as to whether that provision was to become effective regardless of whether there was a lease and a paying tenant in existence at the time of the sale. The property having been sold at a time when there was no tenant in the premises and after it had been untenanted for a period of about two years and before January 31, 1965 —the termination date of the lease negotiated by the respondents — it cannot be determined from the documents alone what the rights of the respective parties are. Accordingly, it would be best, and indeed necessary, to have testimony taken to enable the court to make a finding with respect to the intention of the parties.

Eager, J. (dissenting). I dissent insofar as this court would affirm that part of the order and judgment denying the motion of defendant Zara Marchant for summary judgment, and I would grant her motion and dismiss the cross complaint. In my opinion, there are no triable issues. It is clear from the writings constituting the agreement that this was a contingent fee arrangement. The agreement was not, as alleged by cross complainants, one for an unconditional payment of a sum certain, to wit, $44,275 for legal services rendered by them. On the contrary, the agreement was one for the payment of a contingent fee on a percentage basis out of the rent increases resulting from the services of the cross complainants. Plainly, as evidenced by the writings constituting the agreement, the fee was to be paid by the defendant owner or her successors in title out of the rents received until January 31, 1965 from the tenant Acweltone Corporation or from a successor tenant. It appears that, without breach or fault on the part of the defendant, the lease with Acweltone Corporation was terminated on August 5, 1957 and that the defendant duly paid to cross complainants the agreed upon percentage of rents received from said tenant. It further appears that the defendant, as owner, not being able to rerent the premises, sold and conveyed the same about two years after the termination of the Acweltone lease. Under the circumstances, the defendant has not in any way been guilty of a breach of the conditions of the agreement with the cross complainants; and there is no claim here that she did in any way proceed fraudulently or in bad faith in order to frustrate the contract rights of the cross complainants. Therefore, they have no cause of action against the defendant. Botein, P. J., Rabin, Valente and McNally, JJ., concur in Memorandum by the court; Eager, J., dissents and votes to reverse, grant defendant-appellant Zara Marehant’s motion for summary judgment, and dismiss the cross complaint in opinion. Order and judgment modified on the law and on the facts, etc.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Kurtz, J.), dated April 3, 2006, which granted that branch of the motion of the defendants Gerald Papadatos and Cabrini Medical Center which was for leave to reargue that branch of the plaintiffs’ prior motion which was to strike their answers pursuant to CPLR 3126 (3), which had been granted by order of the same court (Silverman, J.) dated October 17, 2005, and upon reargument, in effect, vacated the order dated October 17, 2005, and denied that branch of the plaintiffs’ motion. Ordered that the order dated April 3, 2006 is affirmed, with costs. On August 9, 2005 the plaintiffs moved, inter alia, to strike the answer of the defendant Cabrini Medical Center (hereinafter Cabrini) for failure to produce a witness for deposition, and for failure to comply with an order dated May 16, 2005, directing it to provide the written rules and regulations regarding implant surgery and to provide information about the manufacturer of the implant inserted into the plaintiff Vasillios Prappas (hereinafter Vasillios). The plaintiffs also moved to strike the *872answer of the defendant Gerald Papadatos for failure to comply with the order dated May 16, 2005 directing him to provide the plaintiffs with the documents requested at his examination before trial, the written rules and regulations regarding implant surgery, and information about the manufacturer of the implant. These defendants (hereinafter the respondents) argued that there was no evidence that their conduct was willful or contumacious, and thus the sanctions were not warranted. By order dated September 14, 2005, the Supreme Court adjourned the plaintiffs’ motion to October 17, 2005, directed Cabrini to produce a witness for deposition, and directed the respondents to comply with outstanding discovery demands on or before October 7, 2005. Cabrini stated that it would produce a witness for deposition and Papadatos stated that he was unable to locate the records demanded by the plaintiffs. By order dated October 17, 2005, the Supreme Court granted that branch of the plaintiffs’ motion which was to strike the respondents’ answers. On November 17, 2005 the respondents moved for leave to renew and reargue that branch of the plaintiffs’ motion which was to strike their answers. By order dated April 3, 2006, the Supreme Court, upon reargument, in effect, denied that branch of the plaintiffs’ motion which was to strike the respondents’ answers stating that the plaintiffs failed to demonstrate willful noncompliance with the court’s prior orders. We agree. “[The] drastic remedy of striking a pleading pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful and contumacious” (Russo v Tolchin, 35 AD3d 431, 434 [2006]; see Jenkins v City of New York, 13 AD3d 342 [2004]; Royal Caterers, LLC v Marine Midland, 8 AD3d 549, 550 [2004]; Assael v Metropolitan Tr. Auth., 4 AD3d 443, 444 [2004]). “Willful and contumacious conduct can be inferred from repeated noncompliance with court orders, inter alia, directing depositions, coupled with either no excuses or inadequate excuses (see Russell v B&B Indus., 309 AD2d 914 [2003]), or a failure to comply with court-ordered discovery over an extended period of time (see Vanalst v City of New York, 302 AD2d 515 [2003])” (Russo v Tolchin, supra at 434). Here, the respondents substantially complied with the discovery orders by making a good faith effort to find the items requested by the plaintiffs, even though they could not locate all of them, by participating actively in discovery, including Papadatos’ appearance at a multi-day deposition, and by providing the name and last known address of Cabrini’s designated witness, and then identifying another hospital employee who *873would be produced for deposition. Under the circumstances of this case, there was no clear showing that the defendants’ failure to produce a witness for deposition and comply with other discovery was willful and contumacious. Thus, the Supreme Court properly, upon reargument, denied that branch of the plaintiffs’ motion which was to strike the respondents’ answers. Rivera, J.E, Santucci, Angiolillo and Dickerson, JJ., concur.

In five related actions, inter alia, to recover damages for personal injuries, etc., Meagan A. Dixon and Eleanor M. Dixon, defendants in action Nos. 1, 2, 3, and 4, appeal from an order of the Supreme Court, Rockland County (Garvey, J.), dated December 6, 2005, which denied their motion for summary judgment dismissing the complaints and all cross claims insofar as asserted against them in those actions. Ordered that the order is affirmed, with costs. “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway” (Vehicle and Traffic Law § 1129 [a]; see Carhuayano v J&R Hacking, 28 AD3d 413 [2006]; David v New York City Bd. of Educ., 19 AD3d 639 [2005]). At the same time, the lead vehicle has a duty “not to stop suddenly or slow down without proper signaling so as to avoid a collision” (Purcell v Axelsen, 286 AD2d 379, 380 [2001] [internal quotation marks omitted]; see Carhuayano v J&R Hacking, supra). Meagan A. Dixon, who operated the lead vehicle in a multivehicle collision, and Eleanor M. Dixon, who owned that vehicle, submitted evidence of a rear-end collision sufficient to establish their entitlement to judgment as a matter of law (see Neidereger v Misuraca, 27 AD3d 537 [2006]; Rainford v Sung S. Han, 18 AD3d 638 [2005]; Malone v Morillo, 6 AD3d 324 *874[2004] ). However, the papers submitted in opposition to the motion were sufficient to raise a triable issue of fact as to whether Meagan A. Dixon contributed to the accident by making a sudden and unexplained stop (see Taveras v Amir, 24 AD3d 655 [2005] ; Gaeta v Carter, 6 AD3d 576 [2004]; Chepel v Meyers, 306 AD2d 235 [2003]). Miller, J.E, Spolzino, Ritter and Dillon, JJ., concur.

Order, entered July 27, 1960 dismissing complaint for legal insufficiency, unanimously reversed, on the law, with $20 costs and disbursements to plaintiff-appellant-respondent, and the motion for summary judgment under rule 113 of the Rules of Civil Practice denied, with $10 costs, with leave, however, to defendants, if they are so advised, to renew their motion at the conclusion of all pretrial procedures. On a motion for summary judgment under rule 113 the complaint was not properly dismissed for insufficiency in the pleading (Tripp, A Guide to Motion Practice [Rev. ed.], p. 283, § 95; subd. 17). Viewing the record under rule 113, there are issues of fact. The affidavits are in conflict as to the nature of the omissions from plaintiff’s bid as presented, and the responsibility for such omissions. On the basic merits of plaintiff’s legal theory, there are circumstances in which intentional interference with economic expectancies may engender a *600cause of action (see Harper and James, Law of Torts, § 6.11). Thus, the fact that defendant had no obligation to solicit bids from those situated like plaintiff is not determinative. The fact is that defendant did solicit bids, and plaintiff may have thereby incurred a proteetible economic interest, especially since the bids required the approval of a third party. Nor may one say on this record that the motive attributed by plaintiff to defendant, namely to favor another, was or was not a legally sufficient excuse or justification for the alleged falsification of plaintiff’s bid (ibid. § 6.12). Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Murphy, J.), entered September 16, 2005, as denied its motion for summary judgment dismissing the complaint. Ordered that the order is affirmed insofar as appealed from, with costs. The plaintiff allegedly was injured when he slipped and fell on a patch of “icy snow” in a parking lot located on the defendant’s premises. After the plaintiff commenced this action to recover damages for personal injuries, the defendant moved for summary judgment, claiming that it lacked actual or constructive notice of the hazardous condition which caused the accident. The Supreme Court denied the defendant’s motion and we affirm. A defendant may be held liable for a slip-and-fall incident involving snow and ice on its property upon a showing that, among other things, the defendant had actual or constructive notice of the allegedly dangerous condition (see Salvanti v Sunset Indus. Park Assoc., 21 AD3d 546 [2006]). Thus, “[o]n a motion for summary judgment to dismiss the complaint based upon lack of notice, the defendant is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law” (Goldman v Waldbaum, Inc., 248 AD2d 436 [1998]). The defendant made no such showing here. Viewing the evidence in the light most favorable to the nonmoving party, as we must (see Fleming v Graham, 34 AD3d 525, 526 [2006]; Makaj v Metropolitan Transp. Auth., 18 AD3d 625, 626 [2005]), the plaintiff did not testify that the ice patch on which he allegedly slipped was not visible. Moreover, although the plaintiff acknowledged in his deposition testimony that he could not specify the length of time that the patch of ice had been present on the ground before the occurrence, the defendant failed to submit any evidence showing that the allegedly dangerous *875condition existed for an insufficient length of time for them to have discovered and remedied it, as is its burden (see Pearson v Parkside Ltd. Liab. Co., 27 AD3d 539 [2006]). Miller, J.P., Spolzino, Ritter and Dillon, JJ., concur.

On this submission of controversy upon agreed facts, pursuant to sections 546 to 548 of the Civil Practice Act, judgment is directed, without costs, in favor of the defendant Empire Trust Company, as trustee, that the sum of $50,000 held by it in the lease security fund is the property of the holders of the bonds which were called for redemption as of January 1, 1960, and should be distributed to them pro rata, in accordance with the provisions of the indenture. The provisions of section 5 of article III of the Indenture of Mortgage, expressly designate the funds in the lease security fund as the property of the bondholders and direct that such funds “ at the date of the maturity or prior redemption of all the Bonds shall be distributed pro rata to the holders of Bonds then outstanding on such date ”, Such provisions, as specific provisions directly applicable to the situation now existing, control rather than the general provisions of section 2 of article XIX of the Indenture providing that on redemption of the bonds the “mortgaged property shall revert to the Company [the plaintiff] ” and that the trustee shall “ repay to the Company any balance of any funds paid to the Trustee by the Company remaining in the hands of the Trustee ”. If there were any inconsistency between the specific provisions of section 5 of article III having to do with the distribution of the lease security fund on the redemption of the bonds and riie general provisions of section 2 of article XIX, the specific provisions should control. The general rule is that where there is “ inconsistency between a specific provision and a general provision of a contract * * * the specific provision controls ”. (Muzak Corp. v. Hotel Taft Corp., 1 N Y 2d 42, 46.) In any event, when one considers the original source of the said lease security fund, it is clear that the provisions of section 2 of article XIX relied upon by the plaintiff, were not intended to and do not apply with respect to the disposition of the fund on the redemption of the bonds. It appears that such lease security fund was established by a payment from moneys ostensibly the property of the bondholders in that it was created by payment from the funds in the hands of the trustee under the former mortgage at the time of the reorganization in bankruptcy of the plaintiff and in that, if not so used, the said sum of $50,000 would have been available to further reduce the large arrears in interest owing to the bondholders at that time. In fact, under the plan of reorganization, duly approved by the United States District Court, the lease security fund was expressly declared to be “ held in trust by the Trustee (under the new indenture of mortgage) as the property of and for the benefit of the holders of the bonds”. Certainly, under these circumstances, this lease security fund was not “mortgaged property” or “funds paid to the Trustee by the Company [the plaintiff] ” to be turned over to the plaintiff on the payment of the mortgage as provided for in said section 2 of article XIX. We have examined and have found no merit to the plaintiff’s point that an illegal lottery is in effect created by the construction of the indenture of mortgage by a holding *601that the lease security fund is the property of the bondholders. Settle order on notice. Concur— Botein, P. J., Breitel, Rabin, McNally and Eager, JJ.

In an action to recover damages for personal injuries, etc., the defendants Beverly Road Realty Company and Sheldrake Management, Inc., appeal from an order of the Supreme Court, Kings County (Bunyan, J.), dated January 3, 2006, which, without a hearing, denied their motion pursuant to CPLR 5015 (a) (1) and (4) to vacate their default in appearing and answering the complaint. Ordered that the order is affirmed, with costs. The affidavits of the process servers constituted prima facie evidence of proper service upon the defendant Beverly Road Realty Company (hereinafter Beverly Road Realty) pursuant to CPLR 310 (c) and upon the defendant Sheldrake Management, Inc. (hereinafter Sheldrake Management), pursuant to Business Corporation Law § 306 (b). The unsubstantiated denials of service of the summons and complaint by Leib Puretz, a partner of Beverly Road Realty and an officer of Sheldrake Management, were insufficient to rebut the prima facie showing (see General Motors Acceptance Corp. v Grade A Auto Body, Inc., 21 AD3d 447 [2005]; Household Fin. Realty Corp. of N.Y. v Brown, 13 AD3d 340 [2004]; Carrenard v Mass, 11 AD3d 501 [2004]). Accordingly, that branch of the motion of Beverly Road Realty and Sheldrake Management (hereinafter collectively the appellants) which was pursuant to CPLR 5015 (a) (4) to vacate their default in appearing and answering the complaint was properly denied without a hearing (see 96 Pierrepont v Mauro, 304 AD2d 631 [2003] ). Furthermore, in light of the disclaimer letters from the appellants’ insurance carriers, the appellants failed to demonstrate a reasonable excuse for their delay of about six years in seeking to interpose an answer (see Ramirez v Rao, 23 AD3d 447 [2005]; Thompson v Steuben Realty Corp., 18 AD3d 864, 865 [2005]; Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716, 716-717 [2004] ). Accordingly, the court also properly denied that branch of the appellants’ motion which was pursuant to CPLR 5015 (a) (1) to vacate their default in appearing and answering the complaint (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., *87667 NY2d 138, 141 [1986]; Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]). Mastro, J.E, Ritter, Skelos, Garni and McCarthy, JJ., concur.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Westchester County (Colabella, J.), dated October 19, 2005, as, upon so much of a jury verdict as was in favor of the defendant Ruth McCormack on the issue of liability, and upon denying that branch of their motion pursuant to CPLR 4404 (a) which was to set aside that portion of the verdict and for judgment as a matter of law against that defendant or, in the alternative, to set aside that portion of the verdict as against the weight of the evidence and for a new trial against that defendant, is in favor of the defendant Ruth McCormack and against them dismissing the complaint against her. Ordered that the judgment is affirmed insofar as appealed from, with costs. The plaintiffs, Robert Schwalb and Suzanne Schwalb, prospective buyers of a farm owned by the defendant Ruth McCormack, commenced this action against McCormack and her real estate agents to recover damages for injuries allegedly sustained by Mr. Schwalb when his leg broke through the *877second-story floorboards of a barn being shown to the plaintiffs. Following a jury verdict on the issue of liability, the Supreme Court, inter alia, denied that branch of the plaintiffs’ motion pursuant to CPLR 4404 (a) which was to set aside so much of the verdict as was in favor of McCormack and for judgment as a matter of law or, alternatively, to set aside that portion of the verdict as against the weight of the evidence and for a new trial against McCormack. In evaluating the legal sufficiency of a verdict, we must determine whether there is any “valid line of reasoning and permissible inferences which could possibly lead a rational [person] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Here, a rational person could have concluded that McCormack did not have actual or constructive notice of the allegedly dangerous condition, and the jury was not required, as a matter of law, to draw an inference that the accident was caused by the defendants’ negligence under the doctrine of res ipsa loquitur. The plaintiffs’ contention that so much of the verdict as was in favor of McCormack should have been set aside as against the weight of the evidence is without merit. A jury verdict should only be set aside as against the weight of the evidence when it could not have been reached on any fair interpretation of the evidence (see Bendersky v M & O Enters. Corp., 299 AD2d 434, 435 [2002]; Nicastro v Park, 113 AD2d 129, 132 [1985]). Here, so much of the verdict as was in favor of McCormack was supported by a fair interpretation of the evidence. The plaintiffs’ remaining contention is unpreserved for appellate review and, in any event, without merit. Mastro, J.P, Florio, Garni and McCarthy, JJ., concur.

Order, entered August 25, 1960 dismissing for lack of prosecution certain causes of action in behalf of adult plaintiffs in personal injury negligence action unanimously affirmed, with $50 costs and disbursements to the respondent. Plaintiffs-appellants, however, are granted leave to move to vacate such dismissal as to them within 30 days after service of the order herein with notice of entry, upon tender and payment of $250 additional costs, together with payment of the costs and disbursements taxable to date in the action against such plaintiffs, including this appeal, to be charged to and *602paid by attorneys for plaintiffs. While the delay appears inexcusable, the circumstances in which the infant plaintiffs may proceed with the action, and the adults cannot, presents an anomaly that perhaps should be avoided. Moreover, if, as plaintiffs aver, without contradiction on this motion, the accident occurred as it did, then there is unusual merit to their claims, and the delays can only be the responsibility of their lawyers. On these extraordinary circumstances the firm policy of this court with respect to delays in prosecution should he conditionally but cautiously relented (see Tripp, A Guide to Motion Practice [Rev. ed.], § 20, but especially the cases collected in the 1960 Cumulative Supp.; cf. Kanare v. City of New York, 6 A D 2d 696; but see, also, 23 Carmody-Wait, New York Practice, p. 135, § 107). Concur — Botein, P. J., Breitel, Stevens, Eager and Noonan, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Jamieson, J.), entered March 1, 2006, which granted that branch of the motion of the defendants Cablevision Systems Corp., Cablevision of Southern Westchester, Inc., and CSC Holdings, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them. Ordered that the order is affirmed, with costs. The plaintiff, while riding his bicycle on July 1, 2002 allegedly was thrown to the ground when the bicycle’s front wheel became entrapped in a rut on the roadway intersection. The rut was located next to an area of excavation and near a manhole in the street. As a result of being thrown from his bicycle, the plaintiff sustained personal injuries. The plaintiff commenced this action upon learning that the City of White Plains and the County of Westchester issued permits to the defendants Cablevision Systems Corp., Cablevision of Southern Westchester, Inc., and CSC Holdings, Inc. (hereinafter collectively the defendants) to perform work in the roadway intersection where the accident occurred. The Supreme Court granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them. We affirm. The defendants established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting the affidavit of their construction supervisor. He stated that construction in the roadway intersection at the location where the plaintiff was injured began on July 31, 2002, 30 days after the plaintiffs accident on July 1, 2002. This affidavit was sufficient admissible evidence to establish the defendants’ prima facie entitlement to summary judgment on the issue of liability. In opposition, the plaintiff failed to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Puello v City of New York, 35 AD3d 294 *879[2006]; Flores v City of New York, 29 AD3d 356, 359 [2006]; Gaines v Shell-Mar Foods, Inc., 21 AD3d 986, 987 [2005]; Robinson v City of New York, 18 AD3d 255 [2005]). The plaintiffs contention that the motion for summary judgment was premature because he had not fully completed discovery is without merit. The plaintiff failed to indicate the existence of any material fact which would show that the defendants in any way contributed to the happening of the plaintiff’s accident and would thereby justify denial of the defendants’ motion. Thus, the plaintiff failed to demonstrate the need for additional discovery. Crane, J.E, Skelos, Covello and Dickerson, JJ., concur.

Resettled order entered April 14, 1960, denying, among other things, the cross motion of the defendant Nationwide Insurance Company for summary judgment, unanimously modified to the extent of granting said defendant’s cross motion for summary judgment, with $10 costs, and as so modified, the resettled order is affirmed, with $20 costs and disbursements to appellant Nationwide Insurance Company. Nationwide had issued an automobile liability policy to defendants Jayson — who operated a Summer camp — covering a pick-up truck. A camper was injured on July 7, 1957, apparently as she was climbing aboard the truck. Nationwide was not notified until April 19, 1958, when the Jaysons received a claim letter from the girl camper’s attorneys, although the policy required the insured to give written notice of an accident or occurrence “ as soon as practicable ”. Even assuming that the insureds were justified in supposing that the occurrence on July 7, 1957, was a trivial mishap, they were certainly alerted to the possibility of a claim being made when the camper’s father telephoned Jayson in November or December, 1957 and informed Jayson that radioactive treatments were being administered to the injured person’s leg. Any unreasonable delay in notifying the insurer from that point became inexcusable. The passage of four to five months from the receipt of such information to the time of notifying Nationwide constitutes late notice as a matter of law. Hence, there is no triable issue as to the reasonableness of the notice under the circumstances. The appeal from the order entered January 18, 1960, is dismissed, without costs, since that order was subsequently resettled by the order entered April 14, 1960. (Matter of French v. Knapp, 170 App. Div. 959; Young v. White, 158 App. Div. 763.) Settle order on notice. Concur—Valente, J. P., McNally, Stevens, Eager and Noonan, JJ.

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Rockland County (Weiner, J.), dated December 21, 2005, which denied their motion for summary judgment and granted the defendants’ cross motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. Education Law § 6306 (2) states, in relevant part, that “[t]he board of trustees of each community college shall appoint a president for the college, subject to approval by the state university trustees” (see also 8 NYCRR 600.2). Here, the plaintiffs failed to establish, prima facie, that they were entitled to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]). In contrast, the defendants made a prima facie showing of their entitlement to summary judgment dismissing the cause of action to recover damages for breach of contract, as the State University of New York Board of Trustees did not approve the contract seeking to extend the appointment of the plaintiff Thomas G. Voss as the interim community college president. In opposition, the plaintiffs failed to raise a triable issue of fact. Consequently, the Supreme Court properly summarily dismissed the plaintiffs’ remaining causes of action to recover damages for tortious interference with contractual relations and to recover litigation costs and attorneys’ fees, as those causes of action were predicated upon the invalid contract. In light of our determination, the parties’ remaining contentions have been rendered academic. Rivera, J.E, Santucci, Angiolillo and Dickerson, JJ., concur.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Mahon, J.), entered March 21, 2006, which, upon granting the defendants’ motion pursuant to CPLR 4401, made at the close of the plaintiffs case, to dismiss the complaint for failure to establish a prima facie case, is in favor of the defendants and against her, dismissing the complaint. Ordered that the judgment is affirmed, with costs. “To be entitled to judgment as a matter of law pursuant to CPLR 4401, a defendant has the burden of showing that there *881is no rational process by which the jury could find in favor of the plaintiff and against the moving defendant” (Velez v Goldenberg, 29 AD3d 780, 781 [2006]; see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Tapia v Dattco, Inc., 32 AD3d 842, 844 [2006]). “In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” (Szczerbiak v Pilat, supra at 556). Applying this standard, the Supreme Court properly granted the defendants’ motion. The defendants had “ ‘no duty to protect or warn against an open and obvious condition which, as a matter of law, [was] not inherently dangerous’ ” (Fernandez v Edlund, 31 AD3d 601, 602 [2006], quoting Jang Hee Lee v Sung Whun Oh, 3 AD3d 473, 474 [2004]; see Cupo v Karfunkel, 1 AD3d 48, 51-52 [2003]). Mastro, J.E, Florio, Garni and McCarthy, JJ., concur.

Proceeding pursuant to CPLR article 78 to review so much of a determination of the New York State Liquor Authority, dated May 22, 2006, as, upon the petitioner’s plea of no contest to charges of, inter alia, violating Alcoholic Beverage Control Law § 100 (2-b), revoked the petitioner’s liquor license, imposed a $1,000 bond claim, and placed a proscription on relicensing for a period of 24 months. Adjudged that the determination is confirmed insofar as reviewed, the petition is denied, and the proceeding is dismissed on the merits, with costs. The petitioner owned and operated an establishment that sold alcoholic beverages pursuant to an on-premises liquor license issued by the New York State Liquor Authority (hereinafter the NYSLA). On June 27, 2005 the Police Department of the Village of Port Chester, with permission, entered the petitioner’s establishment to search for an underage female who had run away from home. The police discovered two underage females working as dancers at the establishment. After an administrative hearing before the NYSLA, the petitioner entered a plea of no contest to charges that he violated various statutory and regulatory provisions. *882As the parties acknowledge, since the petitioner entered a plea of no contest, the only inquiry before this Court “is whether the punishment is ‘so disproportionate to the offense, in light of all of the circumstances, as to be shocking to one’s sense of fairness’ ” (Matter of Desiderio’s Parklane Pizzeria v Duffy, 143 AD2d 508, 509 [1988], quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]; see Matter of 17 Cameron St. Rest. Corp. v New York State Liq. Auth., 48 NY2d 509, 512 [1979]; Matter of Pyramid Lounge v New York State Liq. Auth., 175 AD2d 131, 131 [1991]; see also Matter of Korina Rest. & Bar v New York State Liq. Auth., 267 AD2d 38, 38 [1999]; Matter of Kufs v State of N.Y. Liq. Auth., 224 AD2d 974, 974 [1996]). Given the circumstances presented here, including consideration of the previous record and history of the licensee and the licensed premises (see Awrich Rest. v New York State Liq. Auth., 92 AD2d 925, 927 [1983], affd 60 NY2d 645 [1983]), the penalty imposed was not excessive (see Matter of Warehouse Entertainment v New York State Liq. Auth., 292 AD2d 536 [2002]; Matter of Couples at V.I.P v New York State Liq. Auth., 272 AD2d 615 [2000]; Matter of Kelly v Casale, 263 AD2d 889, 890-891 [1999]). Mastro, J.E, Florio, Carni and McCarthy, JJ., concur.

In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals, as limited by her brief, from so much of a fact-finding and dispositional order of the Family Court, Kings County (Hamill, J.), dated February 10, 2006, as, after a hearing, found that she had abused and neglected the subject child, placed the subject child in the custody of the maternal grandfather, and placed the mother under the supervision of the Administration for Children’s Services for a period of 12 months. *883Ordered that the appeal from so much of the order of disposition as placed the mother under the supervision of the Administration for Children’s Services for a period of 12 months is dismissed as academic, as the period of supervision has expired; and it is further, Ordered that the order of disposition is affirmed insofar as reviewed, without costs or disbursements. The Family Court did not err in finding that the appellant abused and neglected her then seven-month old son, Kai B. “The petitioner established by a preponderance of the evidence that the appellant either inflicted physical injury upon her son [Kai B.], or allowed such injury to be inflicted upon him, by other than accidental means, and that the injury was of the type and severity contemplated by Family Court Act § 1012 (e) [and (f)]” (Matter of Daqwuan G., 29 AD3d 694, 695 [2006]; see Family Ct Act § 1012 [e] [i]; [f] [i] § 1046 [a] [ii]; [b] [i]). Specifically, the petitioner established that on December 28, 2004 Kai presented at Brooklyn Hospital with skull, tibia, and rib fractures, and that these injuries were “of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child” (Family Ct Act § 1046 [a] [ii]). The petitioner also established that although the appellant had been advised by her son’s pediatrician, on December 17, 2004 and December 20, 2004, that she should have her son examined by a neurologist in regard to a swelling on his scalp, which ultimately proved to be a skull fracture with a hematoma, she failed to do so. Finally, the petitioner established that the injuries occurred while Kai was under the appellant’s care (see Family Ct Act § 1012 [e]; § 1046 [a] [ii]; [b] [i]; Matter of Philip M., 82 NY2d 238, 244 [1993]). In response, the appellant failed to provide a reasonable and adequate explanation for the injury or for her failure to seek the recommended medical care (see Matter of Philip M., supra at 244-245; Matter of Aniyah F. 13 AD3d 529, 530-531 [2004]; Matter of Shawniece E., 110 AD2d 900, 900 [1985]). There is no basis to reject the Family Court’s determination accepting the testimony of the petitioner’s witnesses and determining that appellant’s testimony lacked credibility (see Matter of Nicholas A., 28 AD3d 477 [2006]; Matter of Vivica J., 229 AD2d 495, 496 [1996]). The Family Court, which saw and heard the witnesses, was in the best position to assess credibility. Its determinations with respect thereto should not be disturbed since they are supported hy the record (see Matter of Commissioner of Social Servs. of City of N.Y. v Hyacinth L., 210 AD2d 329, 331; cf. Matter of Ana L., 26 AD3d 439, 439 [2006]). *884The appellant’s contention that the court erred in admitting the Brooklyn Hospital and medical records into evidence is unpreserved for appellate review, and in any event, is without merit. Such records are admissible if the proponent offers either foundational testimony under CPLR 4518 (a) or certification under CPLR 4518 (c) (see Rodriguez v Triborough Bridge & Tunnel Auth., 276 AD2d 769, 770 [2000]; Matter of Paul G., 232 AD2d 415, 416 [1996]; LaDuke v State Farm Ins. Co., 158 AD2d 137, 138 [1990]; Matter of Quinton A., 68 AD2d 394, 399-400 [1979], revd on other grounds 49 NY2d 328 [1980]; cf. Kasman v Flushing Hosp. & Med. Ctr., 224 AD2d 590, 590 [1996]). Since both the hospital and medical records in question were properly certified, they were properly admitted. Crane, J.P, Florio, Fisher and Dickerson, JJ., concur.

In a proceeding pursuant to CPLR article 78, inter alia, to review so much of a determination of Robert Doar, Commissioner of the Office of Temporary and Disability Assistance, dated December 3, 2004, as, after a hearing, found that he lacked jurisdiction to review the computation of the petitioner’s public assistance benefits by the Nassau County Department of Social Services for the period prior to October 29, 2001, Robert Doar appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Joseph, J.), entered October 12, 2005, as denied that branch of his motion which was to dismiss the petition on the ground that *885the petitioner’s request for a fair hearing was untimely, granted that branch of the petition which was to annul so much of the determination as found that he was without jurisdiction to review the computation of the petitioner’s public assistance benefits for the period prior to October 29, 2001, and remitted the matter to the Nassau County Department of Social Services to recompute the amount of public assistance benefits owed to the petitioner from July 1993 to October 29, 2001. Ordered that the order and judgment is affirmed insofar as appealed from, with costs. The petitioner resides with her three minor, dependent children and her niece, Shantel Green. Green has resided with the petitioner since 1990, shortly after her birth. From 1990 through 1993, Green received public assistance from the Nassau County Department of Social Services (hereinafter the Agency) based on her parents’ death. In July 1993 the petitioner applied for public assistance on behalf of herself and her oldest daughter who was born a few years earlier. Thereafter, from July 1993 through March 2003, the petitioner and her children received public assistance under the same case as her niece Green. The Agency computed the amount of the petitioner’s public assistance by including as household income the social security income that Green had been receiving as a result of her parents’ death. In March 2003 the petitioner learned that her benefits would have been greater if her niece and her niece’s social security income were not included in her case. At that time, the Agency granted the petitioner’s request to remove her niece from her case. She subsequently requested an underpayment adjustment retroactive to 1993, but the Agency failed to provide such a retroactive adjustment. Thus, the petitioner requested a fair hearing before Robert Doar, Commissioner of the Office of Temporary and Disability Assistance (hereinafter the appellant), to review the Agency’s failure to issue an underpayment adjustment. At the fair hearing, the Agency asserted that the petitioner’s request for a fair hearing was not timely as it was not made within 60 days of the Agency’s notice to the petitioner indicating that Green was included in the petitioner’s case since 1993 (see Social Services Law § 22 [4] [a]). However, the only notice produced by the Agency regarding how it computed the petitioner’s benefits was dated August 29, 2001. The notice stated that the petitioner’s benefits were temporarily reduced due to her failure to keep an employment appointment. It contained a section on how her benefits were computed, and *886indicated that her niece as well as her niece’s social security income were included in the petitioner’s case. The notice alerted the petitioner of her right to challenge the Agency’s computations within 60 days of the notice if she disagreed with them, but it did not cite any regulatory authority for her niece’s inclusion in her case. In a written determination dated December 3, 2004, the appellant found, inter alia, that he was lacking in jurisdiction to review the adequacy of the petitioner’s benefits for the period prior to October 29, 2001. The appellant found that the Agency’s notice dated August 29, 2001, sufficiently notified the petitioner that since 1993 the Agency had included the niece within the petitioner’s household for purposes of calculating public assistance benefits. Since the petitioner failed to request a fair hearing on the matter within 60 days of the Agency’s notice dated August 29, 2001, the appellant found that he lacked jurisdiction to review the Agency’s computations for the period prior to October 29, 2001. However, the appellant held that he had jurisdiction to review the Agency’s computations of benefits after October 29, 2001. He determined that the computations of the petitioner’s benefits for the period of October 29, 2001, through March 2003 were incorrect because the Agency failed to inform the petitioner during that period that she could maximize her benefits by removing her niece from her case. The petitioner commenced this CPLR article 78 proceeding challenging so much of the appellant’s determination as found that he was without jurisdiction to review the Agency’s computations prior to October 29, 2001. The Supreme Court, inter alia, granted that branch of the petition which was to annul so much of the appellant’s determination as found that he was without jurisdiction and the court remitted the matter to the Agency to recompute the amount of public assistance benefits owed to the petitioner from July 1993 to October 29, 2001. Contrary to the appellant’s contention, the Supreme Court properly held that the 60-day statute of limitations period for requesting a fair hearing was effectively tolled (see Social Services Law § 22 [4] [a]; Matter of Zellweger v New York State Dept. of Social Servs., 74 NY2d 404, 408 [1989]; Matter of Bryant v Perales, 161 AD2d 1186 [1990]; Matter of Kantanas v Wyman, 38 AD2d 849 [1972]). The Agency’s notice dated August 29, 2001, was defective and did not trigger the 60-day limitations period because it did not state any regulatory authority for including Green in the petitioner’s public assistance case (see Matter of Bryant v Perales, supra; Matter of Regan v D’Elia, *88782 AD2d 890 [1981]). Unlike the cases relied on by the appellant (see Matter of Collins v D’Elia, 104 AD2d 1035,1036 [1984]; Matter of Herring v Blum, 68 AD2d 64, 66-67 [1979]), this defect in notice was prejudicial to the petitioner. The Agency produced no evidence that the petitioner was informed that she could maximize her benefits by excluding the income of nonlegally responsible relatives, even though, as the appellant’s written determination acknowledges, New York State Department of Social Services Administrative Directive 82 ADM-75 requires local agencies to so advise applicants and to document in the case record that such information was fully explained to the applicant. Indeed, the petitioner testified that she was told by case workers in 1993 that her niece and her income were required to be included in her case and household. Accordingly, the Supreme Court, inter alia, properly granted that branch of the petition which was to annul so much of the appellant’s determination as found that he was without jurisdiction to review the computation of the petitioner’s public assistance benefits for the period prior to October 29, 2001. The court properly remitted the matter to the Agency to recompute the amount of public assistance benefits owed to the petitioner from July 1993 to October 29, 2001. Rivera, J.E, Santucci, Angiolillo and Dickerson, JJ., concur.

In a family offense proceeding pursuant to Family Court Act article 8, Kent Robertson appeals from an order of protection of the Family Court, Dutchess County (Sammarco, J.), dated February 1, 2006, which, after a hearing and upon finding that he committed the family offense of harassment in the second degree made after a hearing, directed him, inter alia, to stay away from the petitioner until January 31, 2008. Ordered that the order of protection is affirmed insofar as appealed from, with costs. The Family Court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record (see Matter of Phillips v Laland, 4 AD3d 529 [2004]; Matter of Bryan S., 286 AD2d 685 [2001]; Matter of Tibichrani v Debs, 230 AD2d 746 [1996]). The record supports the Family Court’s determination that, based on a preponderance of the credible evidence, the appellant committed the act constituting the family offense of harassment in the second degree, warranting the issuance of an order of protection against him (see Family Ct Act § 812 [1]; § 832; Penal Law § 240.26 [3]; Matter of Clarke v Clarke, 8 AD3d 375 [2004]; Mat*888ter of Dienes v Dienes, 240 AD2d 576 [1997]; Matter of Pesce v Pesce, 223 AD2d 647 [1996]; Matter of Rogers v Rogers, 161 AD2d 766 [1990]). The appellant’s remaining contentions are without merit. Miller, J.E, Spolzino, Ritter and Dillon, JJ., concur.

*889In a hybrid proceeding pursuant to CPLR article 78, inter alia, to compel the respondent County of Nassau to abandon Old South Oyster Bay Road to the abutting landowners, and an action, inter alia, for a judgment declaring that the respondent Northrop Grumman Systems Corporation is unable to “procure fee title” to a portion of Old South Oyster Bay Road from the County of Nassau pursuant to the terms of a contract of sale entered into between the respondent Northrop Grumman Systems Corporation and the petitioner, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Davis, J.), entered June 23, 2005, which granted the cross motion of the respondent Northrop Grumman Systems Corporation and the separate cross motion of the respondents County of Nassau, Thomas Suozzi, Kevin Abrahams, Roger Corbin, John Ciotti, Denise Ford, Joseph Scannell, Francis Becker, Jr., Jeffrey Toback, Vincent Muscarella, Richard Nicolello, Lisanne Altmann, Craig Johnson, Peter Schmitt, Norma L. Gonsalves, David Mejias, Dennis Dunne, Sr., Judith Jacobs, Edward Mangano, Dianne Yatauro, and David Denenberg to dismiss the amended combined petition and complaint, and, in effect, for a judgment declaring that the respondent Northrop Grumman Systems Corporation was able to “procure fee title” to the subject portion of Old South Oyster Bay Road from the County of Nassau pursuant to the terms of the contract of sale, and dismissed the proceeding and made the declaration. Ordered that the order and judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs. Pursuant to a contract of sale dated June 4, 2003, the petitioner 501 Grumman Road, LLC (hereinafter the LLC) agreed to purchase real property (hereinafter the premises) from the respondent Northrop Grumman Systems Corporation (hereinafter NGSC). The premises abutted a portion of land known as “Old” South Oyster Bay Road, which was owned by the respondent County of Nassau, and which had not been used as a roadway for over 50 years. Specifically, as part of an agreement entered into on February 1, 1950, between the County and NGSC’s predecessor, Grumman Aircraft Engineering Corporation (hereinafter the 1950 agreement), the County *890closed Old South Oyster Bay Road, relocated the roadway using property gifted to the County by NGSC’s predecessor for that very purpose, and turned over the use, maintenance, and control of Old South Oyster Bay Road to NGSC’s predecessor. Pursuant to the 1950 agreement, the County retained fee title to Old South Oyster Bay Road, and the closing of the old road was not considered an abandonment thereof by the County but merely a “temporary closing.” As part of the terms of the contract of sale between the LLC and NGSC, the LLC expressly acknowledged that Old South Oyster Bay Road was “no longer open to the public” and that “no access to or use of Old South Oyster Bay Road [was] available to [the LLC].” Moreover, the contract provided that, “if at any time either before or after Closing” NGSC “procure[d] or [was] able to procure” from the County “fee title to” the portion of Old South Oyster Bay Road that abutted the premises, NGSC would convey, or request the County to convey, such portion to the LLC, and the LLC would pay NGSC a specified price. The contract further expressly provided that the foregoing provision would survive the closing. By deed dated October 15, 2003, NGSC conveyed the premises to the LLC. Since NGSC was unable to procure fee title to Old South Oyster Bay Road prior to closing, the description of the premises specifically excepted therefrom “any right, title or interest in and to Old South Oyster Bay Road.” Following the closing, NGSC engaged in lengthy and complex negotiations with the County regarding a number of properties, including Old South Oyster Bay Road. On November 30, 2004 NGSC and the County entered into a memorandum of agreement (hereinafter the MOA) which, inter alia, provided for the termination of the 1950 agreement. The MOA further provided, in relevant part, that NGSC would return jurisdiction of Old South Oyster Bay Road to the County, and that the County would abandon a portion of Old South Oyster Bay Road “to NGCS or its designee.” In April 2005 NGSC advised the LLC that it had entered into the MOA. NGSC maintained that the LLC, as its designee, was required to accept from the County the abandoned portion of Old South Oyster Bay Road that abutted the premises and, pursuant to the contract of sale, pay NGSC the agreed price. In response, the LLC commenced the instant hybrid action and proceeding, seeking, inter alia, a determination that consummation of the contemplated transactions would violate Highway Law § 118-a, and, therefore, a judgment declaring that NGSC was unable to “procure fee title” to the portion of Old *891South Oyster Bay Road from the County pursuant to the contract of sale. NGSC thereafter cross-moved, and the County respondents separately cross-moved, to dismiss the amended combined petition and complaint, and, in effect, for a judgment declaring that NGSC was able to satisfy the condition precedent in the contract of sale. In the resultant order and judgment, the court, among other things, granted those cross motions, and declared, in effect, that NGSC could satisfy the condition precedent. We affirm. Highway Law § 118-a provides, in relevant part: “Whenever . . . any county road shall have been widened, straightened, extended, drained, paved and or otherwise improved and in the process thereof a county shall have acquired from an adjacent owner certain lands necessary for said right-of-way by purchase, condemnation or as a gift and where . . . the grantor of said new right-of-way shall own the property on both sides thereof for the full length of the new taking or the consent in writing of any and all other owners within such area be given, and there shall be sections of the old road as it existed before said improvement which are of no further use for highway purposes to said county, the board of supervisors of said county in which said land is situated . . . may abandon to the abutting owner or owners such sections of parts of the old road as it existed before said improvement which are of no further use for highway purposes, providing the road after such abandonment shall not be less than three rods in width.” All parties agree that the County’s statutory authority to abandon Old South Oyster Bay Road derives from Highway Law § 118-a. The heart of the dispute hinges on the proper interpretation of that statute and its application within the complex history of the subject transactions. Specifically, the LLC contends that Highway Law § 118-a constitutes a bar to the consummation of the transactions contemplated by the MOA and the contract of sale. We disagree. The MOA specifically provides that the County will transfer the disputed portion of Old South Oyster Bay Road “to NGSC or its designee” (emphasis added). Similarly, the contract of sale between the LLC and NGSC, who are both sophisticated and counseled, specifically contemplated the possibility that the abandonment of Old South Oyster Bay Road might occur only after the sale of the property, and expressly provided, in that event, that NGSC could “request Nassau County to convey directly to [the LLC]” the disputed portion of Old South Oyster Bay Road (emphasis added). In our view, NGSC satisfied the *892condition precedent for payment by persuading the County to abandon the subject property to its designee, thereby procuring fee title for the LLC. Moreover, inasmuch as the County proposes to implement the MOA by abandoning the roadway directly to the LLC, now the abutting landowner, the abandonment would not violate Highway Law § 118-a. Therefore, we see no legal impediment to NGSC receiving the benefit of its bargain. The LLC’s remaining contentions are without merit. Miller, J.E, Krausman, Fisher and Dillon, JJ., concur.