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Carpincho, J. Appeal from a decision of the Workers’ Compen*1144sation Board, filed October 20, 2005, which ruled that claimant failed to give timely notice of his injury to his employer. Claimant, a forklift operator for Ace Hardware Corporation, began experiencing pain in his neck on March 25, 2004. Although claimant offered testimony indicating that he informed his supervisor that his neck was “killing” him that day, he did not formally report an accident at that time and continued working until April 19, 2004. Never again returning to work for that employer, claimant submitted a claim for workers’ compensation benefits on June 30, 2004. Following hearings, a Workers’ Compensation Law Judge established the claim for “a work-related injury involving the neck.” Upon the employer’s application for review, however, that determination was reversed by the Workers’ Compensation Board, which found that claimant failed to provide the employer with timely notice of his work-related injury. Claimant now appeals. Pursuant to Workers’ Compensation Law § 18, a claimant seeking workers’ compensation benefits must inform his or her employer of a work-related injury within 30 days of the accident that caused such injury (see Matter of Baker v E.J. Constr. Group, Inc., 26 AD3d 652 [2006]). Although the failure to provide such timely notice may be excused under certain circumstances, a claimant bears the burden of demonstrating that the employer was not prejudiced by any delay (see Matter of Miner v Cayuga Correctional Facility, 14 AD3d 784, 785 [2005]). Here, a review of the record amply supports the Board’s decision. Regardless of whether the date that claimant’s injury occurred was March 25, 2004, when he first began experiencing pain, or April 19, 2004, his last day of work, his employer was not informed that he had suffered a work-related injury until June 30, 2004, the date he filed his claim. Indeed, testimony from claimant’s supervisor, in addition to contradicting claimant’s assertions regarding his complaints of neck pain on March 25, 2004, suggests his understanding that claimant had successfully applied for authorized absence from work pursuant to the Family Medical Leave Act of 1993. Such an understanding was validated by claimant himself, who testified as to his being granted family medical leave from April 20, 2004 until May 1, 2004. Notably, claimant also applied for disability benefits on April 26, 2004 and avowed on that application that he was neither receiving nor claiming workers’ compensation benefits for a work-related disability. Finally, correspondence from physician James Greenspan, who treated claimant on June 14, 2004 and again on August 4, 2004, indicates that while claimant considered April 19, 2004 as the date of his injury, he had yet to file a *1145workers’ compensation claim as of his June 14, 2004 appointment, clearly beyond the 30-day allotted time period pursuant to Workers’ Compensation Law § 18. Inasmuch as claimant’s delay inhibited his employer from promptly investigating the circumstances allegedly leading to his injury and the fact that he has offered no evidence demonstrating that his untimely notice was not prejudicial toward his employer, substantial evidence supports the Board’s decision and we decline to disturb it (see Matter of Miller v North Shore Univ. Hosp., 13 AD3d 862, 863 [2004]). Cardona, EJ., Peters, Spain and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

Appeal from a judgment of the Supreme Court (Egan, Jr., J.), entered July 14, 2006 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release. In 1984, petitioner was convicted of burglary in the second degree and murder in the second degree, and was sentenced to an aggregate term of 15 years to life in prison. In April 2005, he made his fifth appearance before the Board of Parole. At the conclusion of the hearing, the Board denied his request and ordered him held for an additional 24 months. Petitioner then commenced this CPLR article 78 proceeding challenging the Board’s decision. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued. Contrary to petitioner’s claim, the record discloses that the Board did not deny petitioner parole release based solely upon the violent nature of his crimes. Rather it considered the relevant factors set forth in Executive Law § 259-i, including petitioner’s negligible criminal history, his positive program accomplishments, his relatively clean prison disciplinary record and his postrelease plans (see Matter of Rivera v Dennison, 25 AD3d 856, 857 [2006]; Matter of Olivera v Dennison, 22 AD3d 949, 949 [2005]). The Board was not required to give each factor equal weight and could, as it did, choose to place greater emphasis on the violent nature of petitioner’s crimes (see Matter of Freeman v New York State Div. of Parole, 21 AD3d 1174, 1175 [2005]; Matter of Howithi v Travis, 19 AD3d 727, 727 [2005], lv dismissed 5 NY3d 821 [2005]). Because it cannot be *1146said that the Board’s decision exhibits “ ‘irrationality bordering on impropriety’ ” (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), we decline to disturb it. Cardona, EJ., Mercure, Spain, Mugglin and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 24, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause. Claimant worked for a cosmetics company for approximately 20 years. In an effort to downsize its workforce, the employer gave employees an incentive to voluntarily leave their jobs by offering a severance package. Claimant accepted the package and left her employment. The Unemployment Insurance Appeal Board ruled that she was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause. Claimant appeals. We affirm. Quitting one’s job to accept a severance or early retirement package when continuing work is available has been held not to constitute good cause for leaving employment (see Matter of Hotaling [Commissioner of Labor], 8 AD3d 766, 766 [2004]; Matter of Beale [Sweeney], 244 AD2d 674 [1997]). Inasmuch as claimant left her job for such purpose and was not informed that she would be terminated if she did not accept the package, substantial evidence supports the Board’s decision. Claimant’s remaining argument has been considered and found to be lacking in merit. Cardona, EJ., Mercure, Rose, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

Appeal by the employer and carrier from an award of death benefits. The employer was engaged in the wholesale grocery business and employed degedent as a truck driver and delivery man. On October 16, 1950, decedent made a delivery at a school which required him to carry cases of canned goods and three 100-pound bags of sugar from the *670truck, down a flight of eight steps, and into the school store room. Almost immediately thereafter decedent suffered a coronary occlusion and died. On appeal from a previous award this court reversed and remitted the case to the Workmen’s Compensation Board (285 App. Div. 911) largely because the board made findings which were unsupported by any evidence in the record, particularly that decedent carried the bags of sugar instead of using a hand truck. It now appears without dispute that the use of a hand truck was impossible because of the necessity of going down steps, and an eyewitness testified that she saw decedent carry the bags of sugar and learned of his death within 15 minutes. Certainly this was arduous work, and there is medical testimony in the record that this work aggravated a heart condition, and, “ This aggravation brought about the final termination.” There is substantial evidence to support the award. Award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Mugglin, J. Appeal from a decision of the Workers’ Compensation Board, filed February 3, 2006, which ruled, inter alia, that an employer-employee relationship existed between claimant and International Business Machines Corporation. Robert Floss is the owner of Colonial City Moving & Storage, a company that contracted with International Business Machines Corporation (hereinafter IBM) in approximately 1990 to, among other things, provide labor and services necessary for the transportation and packing of certain IBM equipment, which included cables that were up to 400 feet long. Hired and paid by Floss as of 1985, claimant worked exclusively at IBM facilities for at least the 15 years immediately preceding surgery on his hand in 2005, which was needed to alleviate pain from bilateral carpal tunnel syndrome caused by the repetitive movement associated with moving and pulling such cables. Claimant submitted a claim for workers’ compensation benefits and, following a hearing, a Workers’ Compensation Law Judge determined that claimant’s injury was work related and that he was a special employee of IBM which, through its workers’ compensation carrier, was liable for claimant’s workers’ compensation benefits and that, although claimant was also an employee of Colonial, that company was uninsured in violation of Workers’ Compensation Law § 50. Those determinations were affirmed by the Workers’ Compensation Board, prompting this appeal by IBM, which asserts that its designation as claimant’s special employer was improper. We disagree and affirm. Relevant factors in determining the existence of a special employment relationship include, among other things, whether the special employer had assumed—and the general employer had surrendered—control of the employee, the key determination being which employer “directs the manner, details and ultimate result of the employee’s work” (Matter of Shoemaker v Manpower, Inc., 223 AD2d 787, 788 [1996], lv dismissed 88 NY2d 874 [1996]; see Matter of Mehar v Skyline Credit Ride, 301 AD2d 808, 809 [2003]). Such a factual determination by the Board will be affirmed if it is supported by *1148substantial evidence in the record (see Matter of Arteaga v ISS Quality Serv., 14 AD3d 951, 952 [2005]). Claimant, for at least 15 years, was assigned work on a daily basis by an IBM coordinator who, in addition to scheduling and monitoring his tasks, set his hours, approved his requests for days off or vacations and, because Ploss was regularly unavailable, determined where—among the many IBM facilities in New York State—claimant should show up to fulfill his responsibilities. Moreover, an employee for IBM conceded that all of the work that claimant performed was “in furtherance of the business of IBM.” Inasmuch as such evidence amply supports the Board’s decision, we decline to disturb it. Mercure, J.R, Peters and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.

Appeal from a decision and award of the Workmen’s Compensation Board. Claimant was employed as a practical nurse at a convalescent home. On February 25, 1952 she sustained a comminuted fracture of the right patella in the course of her work, and the following year, as a result of the first injury, sustained a further fall and additional injuries. As the result of these accidents claimant was at first totally and then partially disabled and in 1955 the ease was closed and a schedule award of 25% permanent loss of the right leg was allowed. In 1956 she suffered a further injury to the leg in an automobile accident which was unrelated to the earlier accidents. But the following year, March 15, 1957, she again fell and the board has found that this accident caused an injury which has resulted in a permanent partial disability. It attributed 50% of the cause of the 1957 fall to the 1952 accident and 50% to the unrelated automobile accident. The appellants argue that on this record the board was without jurisdiction to vacate the schedule award and impose the further responsibility for the 1952 accident. But the board clearly has jurisdiction to reclassify awards (Workmen’s Compensation Law, § 15, subd. 6-a; and exercises a continuing jurisdiction, § 123). Here it was justified on the basis of proof of continuing pain and disability following the 1955 schedule award to reclassify and to make a new award consistent with *671the proof of claimant’s further consequential physical difficulties. At one point in their brief appellants argue that the board “ made a new finding and classified the claimant as a permanent partial disability case without revoking or in any way changing or referring to the previous closing of the ease on the schedule award.” The word “ without ” is italicized; but it is clear from the record that the schedule award was revoked. The Referee’s decision of October 22, 1957 states: “Prior award rescinded” and the hoard’s formal findings say exactly the same thing. The board found a period of total disability for a short time after the 1957 accident and a period of partial disability from May 20, 1957 to September 30, 1957. This was found to be a 75% total disability, for which appellants have been made 50% responsible. They argue that there is no proof that there is a 75% permanent partial disability. The actual award, however, is for a definite period, ending September 30, 1957 and whether the condition is permanent in the full sense will depend on the development of the record from that time on. There is, however, adequate medical opinion that she was, in 1957, permanently partially disabled. Claimant testified that she was unable to continue her regular occupation as a nurse; and that she did work on a sewing machine. Considering this testimony and her proof of earnings, the decision that she had a 75% disability was reasonable and not, in the words of appellants’ brief, “ capricious, arbitrary and without foundation ”. There has been a delay of almost two and one-half years from the taking of this appeal on April 2,1958 and its argument. Award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Defendant appeals from an order of the Supreme Court which denied a motion to dismiss the complaint pursuant to section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice on the ground of failure to diligently prosecute the action. Plaintiff seeks to recover $2,139.12 for work, labor and services which he alleges were performed pursuant to an agreement with the defendant. The summons was served on January 30, 1956. The defendant appeared on February 14, 1956. The complaint and a note of issue were mailed to defendant’s attorney on September 23, 1958. Defendant’s attorney accepted the service but reserved the right to move with respect to the pleadings. It is a fair inference that the rather loose practice followed was by acquiescence between the attorneys. It was not until the plaintiff began to actively press the action for trial that the motion to dismiss was made. By the express terms of section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice the court is given discretion in dealing with a motion to dismiss. No prejudice to the defendant appears and we think that the court at Special Term providently exercised its discretion in denying the motion with permission to renew if the action was not tried expeditiously. Order unanimously affirmed, without costs.

Crew III, J.P. Appeal from that part of an order of the Supreme Court (Ceresia, Jr., J.), entered July 26, 2006 in Rensselaer County, which partially denied the motion of defendant H.R. Talmon Claim Associates to dismiss the complaint against it. In January 2004, plaintiffs contacted defendant William J. Fagan & Sons, Inc., an insurance broker, to procure a homeowner’s insurance policy for their residence in the Town of Cropseyville, Rensselaer County. Fagan, in turn, obtained a policy from defendant Preferred Mutual Insurance Company (hereinafter the insurer) covering the period from February 2, 2004 to February 2, 2005. Thereafter, in April 2004, the radiant heating system in plaintiffs’ home malfunctioned, allegedly resulting in substantial damage to. the property. Plaintiffs provided notice of the loss to Fagan, which, in turn, notified the insurer. *1149In response thereto, the insurer sent an engineer and, ultimately, defendant H.R. Talmon Claim Associates, an insurance claims adjuster, to inspect the property and assess the damage to plaintiffs’ home. Following such inspection, Talmon purportedly assured plaintiffs that the insurer would cover the loss and provide full compensation for all damages related thereto provided that plaintiffs replace their defective radiant heating system with a similarly expensive system. According to plaintiffs, Talmon further encouraged them to proceed with the replacement of the heating system and the other related repairs to their home before Talmon submitted a formal claim to the insurer. As a result, plaintiffs undertook such work at their own expense believing that reimbursement by the insurer would be forthcoming. After the heating system had been replaced and the necessary repairs completed, the insurer informed plaintiffs that the damages sought were subject to a policy exclusion and, therefore, they would not be reimbursed for the costs and expenses they incurred. Plaintiffs thereafter commenced this action against Fagan, Talmon and the insurer alleging fraud, negligence and negligent misrepresentation. Following joinder of issue by Fagan and the insurer, Talmon moved to dismiss the complaint for failure to state a cause of action. Supreme Court granted the motion in part, dismissing plaintiffs’ claims sounding in negligence and fraud, but denied the motion as to plaintiffs’ claim for negligent misrepresentation. Talmon now appeals contending that Supreme Court erred in failing to dismiss the complaint against it in its entirety. We affirm. As a general rule, an insurance adjuster, acting as an agent of a disclosed principal and whose actions were undertaken at the behest and direction of the insurer, cannot be held personally liable to an injured plaintiff (see Bardi v Farmers Fire Ins. Co., 260 AD2d 783, 787 [1999], lv denied 93 NY2d 815 [1999]). However, as Supreme Court aptly observed, recovery may be had for a “pecuniary loss sustained as a result of another’s negligent misrepresentations [if] . . . there was either actual privity of contract between the parties or a relationship so close as to approach that of privity” (Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 382 [1992]). “Therefore, before liability may attach, the evidence must demonstrate ‘(1) an awareness by the maker of the statement that it is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of *1150that reliance’ ” (Parrott v Coopers & Lybrand, 95 NY2d 479, 484 [2000], quoting Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, supra at 384). Applying these principles to the matter before us and accepting, as we must on a motion to dismiss pursuant to CPLR 3211 (a) (7), the facts alleged in plaintiffs’ complaint as true (see Griffin v Anslow, 17 AD3d 889, 891 [2005]), it is readily apparent that plaintiffs have established the existence of a relationship with Talmon approaching that of privity. As previously discussed, plaintiffs have alleged/averred that they relied upon Talmon’s expertise in recommending not only that their heating system be replaced, but that it be replaced with an equally expensive model, notwithstanding the availability of a less expensive system, in representing that the costs associated therewith would be fully covered by the insurer and, finally, in proceeding with such replacement and the corresponding repairs prior to the submission of a formal claim to the insurer. From such allegations, it may reasonably be inferred that Talmon was aware that plaintiffs would use such representations “for a particular purpose” and would rely upon them in proceeding with the recommended course of action. Accordingly, we agree with Supreme Court that the requisite three-part test was met and, therefore, Talmon’s motion to dismiss plaintiffs’ cause of action for negligent misrepresentation was properly denied. Peters, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, with costs.

The employer and carrier appeal from an award for disability compensation. Appellants challenge the finding of employer-employee relationship, and also the jurisdiction of the New York Workmen’s Compensation Board. Cushman, the alleged employer, was a public trainer of race horses, training many horses for several owners. There is evidence from which the board could find, as it did, that Cushman’s place of business was in New York. Claimant, a resident of New York, is a jockey and exercise boy by occupation. It is without dispute that claimant was in Cushman’s employ as an exercise boy, riding various horses being trained by Cushman in New York, at a salary of $300 per month from February until the latter part of May, 1955, as well as to ride Cushman trained horses in races both during and after this period. There is evidence that Cushman, as trainer, had complete charge of the horses which he was hired to train, including the selection and hiring of the jockey to ride any particular horse in a race. There was a general understanding between claimant and Cushman that claimant would ride Cushman trained horses in New York, and he had done so quite frequently. Cushman was training a horse named “ Goose Bay ” for a Mrs. Patterson of Pittsburgh, Pa. Claimant had ridden this horse in races in New York five or six times previous to the accident. A day or two before June 21, 1955, Cushman called claimant in New York and requested him to ride “Goose Bay” in a particular race in the State of Delaware on June 21, 1955. It was in that race that claimant was injured. It was understood between claimant and Cushman that claimant would return after that particular assignment to New York to ride horses trained by Cushman in the near future. 'There is evidence that Cushman had the right to hire and fire a jockey, and he gave all of the instructions and directions to claimant, although ultimately, but not initially, claimant’s compensation was paid by the owner. Cushman carried a New York compensation insurance policy which listed his place of business as Queens Village, Long Island, New York. It would seem that a clear factual situation was presented for determination by the board, and that there is ade- *672quate evidence to support the board’s finding that claimant was an employee of Cushman and "that New York was the place of employment despite the fact that the accident happened outside of the State on a temporary assignment. Award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Carpinello, J. Appeal from a decision of the Workers’ Compensation Board, filed February 24, 2006, which ruled that claimant did not sustain an accidental injury in the course of his employment and denied his claim for workers’ compensation benefits. On April 4, 2005, claimant, a school safety agent for the New York City Police Department, heard a popping sound in his right knee while walking a patrol at John Bound High School in Queens. His resultant inability to straighten his leg prompted *1151him to seek immediate medical treatment and prevented him from returning to work for over three months. Claimant subsequently applied for workers’ compensation benefits. Following a hearing, a Workers’ Compensation Law Judge determined that claimant’s injury was not related to his employment and denied the claim. That determination was upheld by the Workers’ Compensation Board, resulting in this appeal. We affirm. While a presumption exists under Workers’ Compensation Law § 21 (1) that unexplained accidents that occur in the course of employment arise out of that employment (see Matter of Cartwright v Onondaga News Agency, 283 AD2d 837, 837-838 [2001]), such a presumption is rebuttable by substantial evidence to the contrary (see Matter of Wichtendahl v Arrow Bus Line, 307 AD2d 400, 401 [2003]). Here, although claimant offered credible testimony suggesting that his injury occurred while he was at work, a review of the record reveals that, in addition to surgery on his right knee in 1980, claimant had regularly experienced pain in that knee prior to April 4, 2005. Indeed, an initial report to the employer characterized the incident as a “re-injur[y]” to his right knee. Likewise, claimant informed a physician that he ingested ibuprofen to relieve pain in that knee and that he wore a stabilizing brace to prevent further injury to it. Inasmuch as such record evidence amply supports the Board’s factual determination that claimant did not sustain a work-related injury, we decline to disturb it (compare Matter of Andrews v Pinkerton Sec., 306 AD2d 655, 655-656 [2003]). Mercure, J.E, Spain, Lahtinen and Kane, JJ, concur. Ordered that the decision is affirmed, without costs.

Defendant appeals from an order of the Ulster County Court which denied his motion for a correction of sentence. Defendant was convicted after a jury trial of rape in the first degree under the first count of an indictment, and of assault in the second degree under the second count of the same indictment. He was thereafter sentenced as a second offender to a term of not less than 10 years nor more than 20 years on the rape count, and not less than 5 years nor more than 10 years on the assault count, the sentences to run concurrently. Upon appeal to this court (People v. De Groat, 5 A D 2d 1045) the conviction on the rape count was vacated and that count of the indictment was dismissed. The judgment of conviction on the assault count was affirmed. The appellant also raised the question upon that appeal that in the event the rape count should be vacated a new trial should be ordered on the assault count. The Court of Appeals affirmed upon appeal to that court by the defendant-appellant. (People v. De Groat, 5 N Y 2d 947, motion for reargument denied 6 N Y 2d 882.) Appellant now contends that the trial court was without power under section 1938 of the Penal Law to impose a sentence on each count, even though they were to run concurrently. It is contended that the court was only empowered to impose sentence upon the higher of the two counts. Section 1938 prohibits double punishment. There is no double punishment or multiple punishment when the two sentences are to run concurrently, and certainly not when now the conviction and sentence on one count of the indictment has been vacated. As the record now stands, the defendant is convicted and sentenced only for assault in the second degree, which has been affirmed by the Court of Appeals. We think that should establish the law of this case. Moreover, the Court of Appeals in People ex rel. Maurer v. Jackson (2 N Y 2d 259) has construed section 1938 contrary to the appellant’s contention when the sentences are concurrent. In fact, the court in that ease envisioned just such a situation as is presented here, when it said at page 269: “ Another important factor should not be overlooked. Where a criminal act which is a composite of several included offenses is followed by a multiple court indictment, and convictions are obtained on more than one count, the imposition of concurrent sentences for lesser included offenses insures that the defendant will not go unpunished if there is an error in his conviction for the highest degree of offense resulting in an acquittal as to that count.” Order unanimously affirmed.

Rose, J. Appeal from an order of the County Court of Chemung County (Buckley, J.), entered April 20, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act. In 1986, defendant pleaded guilty to the crime of sodomy in the first degree in full satisfaction of a four-count indictment stemming from his sexual encounters with three young girls, who were four, five and six years old. Upon his release from prison in 1996, he was classified as a risk level III sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C). In 2004, he was afforded a rehearing pursuant to the stipulation in Doe v Pataki (3 F Supp 2d 456 [SD NY 1998]) *1152after which he was again classified as a risk level III sex offender. He now appeals. In addition to asserting that County Court improperly assessed points against him in two categories on the risk assessment instrument used in classifying sex offenders (see Correction Law §§ 168-/, 168-n), defendant maintains that County Court failed to sufficiently set forth its findings of fact and conclusions of law upon which its determination was based. We disagree and affirm. County Court’s assessments of 30 points to defendant in the category pertaining to the number of his victims—three—and 20 points in the category regarding his continuing course of sexual misconduct are supported by clear and convincing evidence in the record (see People v Swackhammer, 25 AD3d 892, 892 [2006]). Such evidence includes a case summary, a presentence investigation report and a victim impact statement that are buttressed by defendant’s own admissions to police subsequent to his arrest. In affirming his criminal behavior, defendant specifically acknowledged that he engaged in deviate sexual activity with three children and that such activity was not limited to one incident (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 9, 11 [Nov. 1997]). Furthermore, notwithstanding County Court’s failure to attach its findings of fact and conclusions of law to the order providing for sex offender risk level, and inasmuch as the record includes ample evidence, as detailed above, to support County Court’s decision, we decline to disturb it (compare People v Marr, 20 AD3d 692, 693 [2005]). We have considered defendant’s remaining contentions and find them to be without merit' Cardona, EJ., Spain and Mugglin, JJ., concur. Ordered that the order is affirmed, without costs.

Appeal from a decision and award of the Workmen’s Compensation Board. Claimant was injured playing baseball in a team sponsored by his employer, the Dahlstrom Metallic Door Co. The team was a member of the Industrial League of Jamestown. An award has been made and the issue is whether the case falls within Matter of Wilson v. General Motors Corp. (298 N. Y. 468) and must be reversed; or within Matter of Tedesco v. General Elec. Co. (305 N. Y. 544) and be affirmed. We are of opinion the substantial criteria of employer-sponsored athletic activity laid down in the latter decision is in this record. The team was composed entirely of employees of the employer; the expenses of the team, consisting of the cost of uniforms, equipment and entry fee, were paid by the employer, which required that all equipment be returned to it. The name of the employer was lettered on each uniform, and jackets had similar lettering. The name of the employer was used by the team, which appeared in press announcements and in other announcements; and in a year (1958) in which there had been a strike in the plant, no team was organized. A sufficient control by the employer; and of benefit to the employer from the team, are thus demonstrated. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Appeal from an order of the Supreme Court, Monroe County (William E Eolito, J.), entered September 22, 2005 in a proceeding pursuant to CFLR article 75. The order denied the petition, granted the cross petition and confirmed the arbitration award. *1153It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs. Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 75 seeking to vacate an arbitration award. The stipulated issue before the arbitrator was “[wjhether [petitioner] breached the [collective bargaining] agreement [CBA] with [respondent Rochester Teachers] Association when it failed to advance incumbent teachers two steps on the salary scale after they obtained their Masters Degrees.” Supreme Court properly denied the petition and granted respondents’ cross petition seeking to confirm the award (see generally Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999]). Contrary to petitioner’s contention, the arbitrator did not exceed her authority in determining that, pursuant to a binding amendment to the CBA, incumbent teachers would advance two steps on the salary scale after obtaining their Master’s degrees (see Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Erie County White Collar Unit Local #815 [County of Erie], 11 AD3d 1037 [2004]; see also CPLR 7511 [b] [1] [iii]; Matter of Buffalo Teachers Fedn., Inc. v City School Dist. of Buffalo, 8 AD3d 1040 [2004]). Here, the arbitrator merely resolved the stipulated issue before her (see generally Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582-583 [1977]). “[T]he issue before this Court is not whether we agree with the arbitrator’s assessment of the evidence [or] interpretation of the contract” (Matter of New York State Correctional Officers & Police Benevolent Assn., 94 NY2d at 327). Indeed, “[a]n arbitration award must be upheld when the arbitrator ‘offer[s] even a barely colorable justification for the outcome reached’ ” (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479 [2006], cert dismissed — US —, 127 S Ct 34 [2006]). The arbitrator’s “interpretation of the agreement, not being completely irrational, is beyond [our] review power” (Matter of Lackawanna City School Dist. [Lackawanna Teachers Fedn.], 237 AD2d 945, 945 [1997]; see generally Rochester City School Dist., 41 NY2d at 582). All concur except Lunn, J., who is not participating, and Scudder, BJ., who dissents and votes to reverse in accordance with the following memorandum.

Scudder, RJ. (dissenting). I disagree with the majority that the arbitrator did not exceed her authority, and I therefore respectfully dissent. The collective bargaining agreement (CBA) between petitioner and respondent Rochester Teachers Association (Association) established a “Living Contract Committee” *1154(LCC). The LCC consisted of representatives from both petitioner and the Association and provided a means for ongoing discussions between the parties to resolve issues concerning the implementation and interpretation of the CBA. The LCC had the power to “amend [the CBA], provided that any substantive amendments shall be subject to internal ratification and approval procedures of [petitioner] and [the] Association.” Pursuant to the CBA, newly hired teachers who had obtained a Master’s degree prior to their start date would receive a two-step increase on the salary scale. The CBA also established a salary structure providing for salary increases at certain career junctures, e.g., after five years of employment, and also provided that teachers who obtained a Master’s degree during the course of their employment would be entitled to tuition reimbursement. The CBA, however, did not provide a two-step increase on the salary scale for teachers who obtained a Master’s degree during the course of their employment. It is undisputed that members of the LCC representing the Association sent a memorandum to members of the LCC representing petitioner purporting to “confirm the agreement” between the parties providing that teachers who had not obtained a Master’s degree prior to their start date would receive a two-step increase on the salary scale upon obtaining a Master’s degree during the course of their employment. It is further undisputed that petitioner did not respond to the memorandum and that three such teachers were indeed given a two-step salary increase after obtaining their respective Master’s degrees. The arbitrator found that the “LCC reached the claimed [agreement referred to in the memorandum] properly, pursuant to its charge under the [CBA]” and that petitioner “apparently applied the terms of that Agreement to some teachers.” The arbitrator therefore determined that petitioner breached the CBA by failing to give teachers a two-step increase on the salary scale after they had obtained a Master’s degree. It is well established that “[a]n arbitration award may not be vacated unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, 37 [1991]; see CPLR 7511 [b] [1] [iii]; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999]). The CBA provides that “[t]he arbitrator shall have no power or authority to make any decision which . . . adds to, deletes from, or in any way changes, alters, or modifies the terms of this Agreement.” The CBA further provides that it *1155“may not be modified in whole or in part by parties except by an instrument in writing duly executed by both parties and no departure from any provision of this contract by either party or by members of the negotiating units shall be construed to constitute a continuing waiver of the right to enforce such provisions.” In my view, the arbitrator exceeded her authority in disregarding the provision of the CBA requiring that any amendment to it be duly executed by both parties, and in modifying the CBA by providing that teachers obtaining a Master’s degree during the course of their employment would receive a two-step increase on the salary scale (see Matter of Albany County Sheriffs Local 775 of N.Y. State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO [County of Albany], 27 AD3d 979, 981 [2006]). Although it was within the arbitrator’s authority to consider petitioner’s past practice of giving three teachers a two-step increase on the salary scale in connection with the arbitrator’s interpretation of the CBA (see Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, 332 [1998]), in my view, the arbitrator improperly “[rewrote the CBA] by adding a new clause based upon [that] past practice[ ]” (Matter of Hunsinger v Minns, 197 AD2d 871, 871 [1993]; see Matter of West Genesee Cent. School Dist. v West Genesee Teachers Assn., 307 AD2d 718, 719 [2003], lv denied 100 NY2d 516 [2003]). I therefore would reverse the order, grant the petition, vacate the arbitration award and deny respondents’ cross petition seeking to confirm the award. Present—Scudder, EJ., Hurlbutt, Gorski, Centra and Lunn, JJ.

Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board. Claimant was employed by a night club, in a covered employment under the Unemployment Insurance Law, to run an elevator and take out garbage for two hours a day, six days a week, at $13.50 a week. He was separately employed by waiters in the night club to serve them meals, bring coffee, and clear the *674tables. He performed no services for the club’s patrons. Each waiter contributed to claimant’s wage for the work he did for him, from 50 cents to $1 a week. It is not disputed that the amount received by claimant directly from the club ($13.50) would not be sufficient to meet the minimum requirements of the statute of $15 a week (Labor Law, § 527, subd. 1), and that in order to be qualified, both forms of work would have to be considered the employment of the night club. The initial determination was that claimant was ineligible; and this was upheld by the Referee, but the Unemployment Insurance Appeal Board reversed and held that the hiring of claimant by the waiters, as employees of the night club, fell within subdivision 2 of section 560 of the Labor Law and brought claimant’s work for them within the covered employment. The statute does not fairly admit of this interpretation under the facts of this case. It provides that whenever any employee “ engages any other person in the work which said * * * employee is doing for the employer, such employer shall for all purposes hereof be deemed the employer of such other person ” without regard to which one actually pays him; or knowledge of the hiring arrangement. It is clear, however, that the waiters hired the claimant to serve them personally and not to help them carry out the employer’s work or the work the waiters were doing for the night club. The arrangement for such personal services did not, therefore, fall within the employment in which the waiters were engaged. Decision reversed and initial determination affirmed, without costs.

Appeal from a judgment of the Supreme Court, Monroe County (Robert J. Lunn, J.), entered August 5, 2005. The judg*1156ment was entered upon an order granting the motion of defendants State of New York, New York State Division of State Police, and James W McMahon, individually and as Superintendent of New York State Police, seeking costs and sanctions against plaintiffs’ former attorney. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is denied. Memorandum: Supreme Court erred in granting the motion of the State of New York, New York State Division of State Police (State Police), and James W McMahon, individually and as Superintendent of New York State Police (collectively, defendants), seeking costs and sanctions against plaintiffs’ former attorney, the appellant herein, for her alleged frivolous conduct in filing a motion seeking various forms of relief. We note at the outset that the order from which the appeal was taken was subsumed in the subsequent judgment (see Matter of Amherst Med. Park, Inc. v Amherst Orthopedics, P.C., 31 AD3d 1131, 1132 [2006]). Nevertheless, we exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the judgment (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988 [1988]; see also CPLR 5520 [c]). Plaintiffs commenced this action in 1995 alleging that plaintiff Betty L. Kimmel was subjected to various acts of sexual discrimination, sexual harassment and retaliation. This Court struck defendants’ answers in 2001 on the ground that defendants “attempted to relitigate issues and . . . repeatedly disobeyed discovery orders of Supreme Court and this Court” (Kimmel v State of New York, 286 AD2d 881, 883 [2001]). The court granted those parts of plaintiffs’ subsequent motion for a default judgment with respect to the State of New York and the State Police, but the court denied that part of the motion with respect to McMahon on the ground that plaintiffs failed to make the requisite showing with respect to him. The court gave plaintiffs 20 days in which to “address the issue of the sufficiency of the pleadings with respect to” McMahon and to move for leave to amend the complaint with respect to him. By their motion, plaintiffs sought leave to renew and/or reargue that part of their motion for a default judgment with respect to McMahon. In addition, they sought to vacate or modify a portion of an order entered in 1996 dismissing the cause of action alleging a violation of title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.), and they sought leave to amend the complaint to “add allegations” of disability discrimination. After receiving defendants’ papers in opposition, plaintiffs withdrew that part *1157of the motion seeking leave to amend the complaint. The court denied the remainder of plaintiffs’ motion and granted defendants “leave to submit an application for sanctions in connection with plaintiffs’ motion.” The court granted defendants’ subsequent motion for costs and sanctions, ordering appellant to pay “[c]osts in the form of attorney fees [to defendants’ attorneys] in the amount of $7,500 for her frivolous conduct in bringing the subject motion.” We conclude that the court abused its discretion in granting defendants’ motion inasmuch as the motion made by appellant on behalf of plaintiffs was not “completely without merit in law” (22 NYCRR 130-1.1 [c] [1]; cf. Ginther v Jones, 35 AD3d 1224 [2006]; Navin v Mosquera, 30 AD3d 883, 883-884 [2006]). We note in particular that appellant withdrew that part of the motion seeking leave to amend the complaint “when its lack of legal or factual basis was apparent” (22 NYCRR 130-1.1 [c]; cf. Navin, 30 AD3d at 884). Although the court properly denied the motion insofar as it sought leave to reargue that part of the motion for a default judgment with respect to McMahon, that part of the motion was not completely without merit in law inasmuch as plaintiffs asserted that the court had overlooked or misapprehended the factual and legal basis for including McMahon in the default judgment (see CPLR 2221 [d] [2]). Finally, with respect to that part of the motion seeking to vacate or modify a portion of an order entered in 1996, we conclude that, under the circumstances of this case, including the acrimonious nature of the litigation and the procedural delays in determining plaintiffs’ motion for a default judgment filed in September 2002, that part of the motion based upon a decision of the United States Supreme Court issued in 2002 also was not completely without merit in law. Present—Scudder, P.J., Hurlbutt, Gorski and Centra, JJ.

The Industrial Commissioner appeals from a decision of the Unemployment Insurance Appeal Board, holding, contrary to the initial determination of the Commissioner, that claimant had worked in a covered employment in New York and was qualified for benefits. Claimant was employed by the New York office of the employer as a “ layout ” man. The employer was engaged in a nationwide business of designing, redesigning and planning machine layouts for any concern that engaged its services anywhere in the United States. Claimant was not hired for any particular job, but was hired generally to perform services for the employer anywhere he was assigned. It so happened that his first assignment was to a plant in New Jersey, and it so happened that his employment ended before he was assigned elsewhere. If his employment during the period he worked for the employer can be considered a New York employment he is entitled to benefits. Claimant was not only hired in New York for general service anywhere, but all written instructions for the work in New Jersey emanated from the New York office of the employer, and claimant and his group were in almost constant touch with the New York office of the employer by telephone for instructions. Claimant had to go to the New York office of the employer on occasions for written plans and instructions. Appellant contends that claimant’s work was “localized” in the State of New Jersey, and that the services “if any” performed in New York were “incidental” to those performed in New Jersey. We do not agree with appellant’s contention that, in order to uphold the decision appealed from, we must find, as a matter of law, the converse of his contention. The Referee and the Appeals Board have found the converse as a question of fact and have applied subdivision 3 of section 511 of the Labor Law covering “Work within and without the state”. We think the record justifies such a finding on the facts that claimant’s service is not localized in any State, some of the service is performed in this State, claimant’s base of operations is in this State, and his service was directed and controlled from this State. It is interesting to note that, under an almost identical statute, it has been held in New Jersey that claimant did not have a covered employment there and was ineligible for benefits. The main contention of appellant seems *675to be that because claimant actually worked only on one job in New Jersey before his employment terminated, the board must be controlled by that factor alone. We do not think that the fortuitous circumstance that his employment ended before he was sent elsewhere is controlling. This was an unusual type of employment emanating from New York for service expected to be in numerous localities, or so the board could find, and the record affords adequate basis for the decision of the Referee and the Appeals Board. Decision unanimously affirmed, with costs to respondent.

*1158Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered December 27, 2005 in a breach of contract action. The order, insofar as appealed from, granted the motion of defendant Life Insurance Company of Boston & New York for summary judgment dismissing the complaint against it and denied that part of plaintiff’s motion for summary judgment against that defendant. It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs. Memorandum: Plaintiff, a physician formerly specializing in orthopedic spinal surgery, commenced this action to recover benefits for a claimed total disability under a disability income policy issued by Life Insurance Company of Boston & New York (defendant). Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint against it and denied plaintiffs motion for summary judgment. The policy provides that the insured is totally disabled if he is “unable to perform the substantial and material duties of [his] Occupation” (in the case of plaintiff, his former medical specialty of orthopedic spinal surgery) as a result of injury or sickness, and if he is “not performing the duties of any gainful occupation for which [he is] reasonably fitted by education, training, or experience.” We reject plaintiffs contention that the pertinent provisions of the policy are ambiguous (see Michelson v Massachusetts Cas. Ins. Co., 102 AD2d 1003, 1004 [1984]; see also Beck v Massachusetts Cas. Ins. Co., 1988 WL 33916, *2 [ED Pa, Mar. 31, 1988], affd 862d 306 [3d Cir 1988]; see generally Scheuerman v St. Luke’s-Roosevelt Hosp. Ctr., 239 AD2d 333, 334 [1997]) and that they render the disability coverage “illusory.” Further, although we conclude as a matter of law that plaintiff is, as a result of injury or sickness, unable to perform the substantial and material duties of his former occupation as a surgeon, we nonetheless conclude as a matter of law that plaintiff remains actually engaged in a “gainful occupation for which [he is] reasonably fitted by [his] education, training, or experience.” The record establishes that plaintiff has maintained his medical practice, in which he renders second opinions with regard to surgery, performs independent medical examinations, and provides expert medical testimony, all in connection with spinal injuries. Further, plaintiff testified at his deposition that, in carrying out such duties, he utilizes his education, training, and experience as an orthopedic surgeon. All concur except Gorski, J.E, and Green, J., who dissent in part and vote to modify in accordance with the following memorandum.

Gorski, J.P, and Green, J. (dissenting in part). We respectfully dissent in part. “[I]t is generally a question for the jury to determine whether a policyholder is totally disabled within the meaning of the policy provision” (Godesky v First Unum Life Ins. Co., 239 AD2d 547, 548 [1997], citing McGrail v Equitable Life Assur. Socy. of U.S., 292 NY 419, 425 [1944], rearg denied 293 NY 663 [1944]; see Niccoli v Monarch Life Ins. Co., 70 Misc 2d 147, 149-150 [1972], affd 45 AD2d 737 [1974], affd 36 NY2d 892 [1975]). We agree with the majority that plaintiff meets the first requirement of the policy definition of “total disability” as a matter of law. Plaintiff, due to injury or sickness, is unable to perform the substantial and material duties of his occupation as an orthopedic surgeon specializing in spinal surgery. We do not agree with the majority, however, that plaintiff fails as a matter of law to meet the second requirement of the policy definition, i.e., that he is “not performing the duties of any gainful occupation for which [he is] reasonably fitted by education, training, or experience.” Rather, the evidence with respect to the nature and extent of plaintiffs activities raises a triable issue of fact whether plaintiff is totally disabled within the meaning of the second requirement of the policy definition of “total disability” (see Estate of Jervis v Teachers Ins. & Annuity Assn., 306 AD2d 123, 124 [2003]; Scheuerman v St. Luke’s-Roosevelt Hosp. Ctr., 239 AD2d 333, 334 [1997]; Greenbaum v Prudential Ins. Co. of Am., 74 AD2d 757 [1980], lv dismissed 51 NY2d 703, 745 [1980]; see generally Niccoli, 70 Misc 2d at 149-150). We therefore would modify the order by denying the motion of defendant Life Insurance Company of Boston & New York and reinstating the complaint against it. Present—Gorski, J.P., Fahey, Peradotto, Green and Pine, JJ.

Appeal from a judgment of the Supreme Court, Erie County (John P Lane, J), entered March 17, 2006 in a personal injury action. The judgment, insofar as appealed from, dismissed the amended complaint against defendants Damon D. Vinson and James E. Vinson upon a jury verdict. It is hereby ordered that the judgment so appealed from be and the same hereby is affirmed without costs. Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when the vehicle that she was operating was rear-ended by a vehicle operated by defendant Anthony Dandridge, which in turn had been rear-ended by a vehicle operated by defendant Damon D. Vinson (Vinson). On appeal from a judgment entered upon a jury verdict of no cause of action, plaintiff contends that Supreme Court erred in denying her motion to set aside the verdict and for a directed verdict on the issue of proximate cause or, in the alternative, a new trial on that issue, on the ground that the jury’s finding that Vinson was negligent but that his negligence was not a proximate cause of the accident is not supported by legally sufficient evidence, is inconsistent and is against the weight of the evidence. We agree with the court that plaintiff is not entitled to a directed verdict because there is a valid line of reasoning and permissible inferences based upon the evidence at trial that could lead rational persons to the conclusion that Vinson’s negligence was not a proximate cause of the accident (see Guthrie v Overmyer, 19 AD3d 1169 [2005]). Nor can it be said that the verdict is inconsistent or against the weight of the evidence. “A jury finding that a party was negligent but that such negligence was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are ‘so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause’ ” (Cona v Dwyer, 292 AD2d 562, 563 [2002], quoting Rubin v Pecoraro, 141 AD2d 525, 527 [1988]; see Skowronski v Mordino, 4 AD3d 782, 783 [2004]). Further, “[w]here . . . ‘an apparently inconsistent or illogical verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view’ ” (Mascia v Olivia, 299 AD2d 883, 883 [2002]; see Lemberger v City of New York, 211 AD2d 622, 623 [1995]). Here, the jury could have reasonably found from the evidence that, although Vinson was negligent in following too closely behind the vehicle operated by Dandridge, plaintiffs conduct in stopping suddenly without signaling was the sole proximate cause of the collision. “Thus, ‘the finding of proximate cause did not inevitably flow from the finding of culpable conduct’ ” (Skowronski, 4 AD3d at 783; see Inserro v Rochester Drug Coop., 258 AD2d 923, 923-924 [1999]; Hernandez v Baron, 248 AD2d 440 [1998]; Schaefer v Guddemi, 182 AD2d 808, 809 [1992]; see generally Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]). All concur except Gorski, J.E, and Green, J., who dissent and vote to reverse the judgment insofar as appealed from in accordance with the following memorandum.

Gorski, J.E, and Green, J. (dissenting). We respectfully dissent. In our view Supreme Court erred in denying plaintiffs motion to set aside the verdict as inconsistent and against the weight of the evidence and in failing to grant a new trial on the issue of proximate cause. Based upon the evidence presented at trial, the jury’s “finding of negligence cannot be reconciled with the jury’s finding of no proximate cause” (Murphy v Holzinger, 6 AD3d 1072, 1072-1073 [2004]). Evidence that plaintiff may have been interacting with people on the street and interrupting the smooth flow of traffic, “while pertinent to the issue of contributory negligence, does not equate with a lack of proximate cause” with respect to the negligence of defendant Damon D. Vinson (Bucich v City of New York, 111 AD2d 646, 648 [1985]; see Mazurek v Home Depot U.S.A., 303 AD2d 960, 961 [2003]). Further, the majority’s conclusion that the jury may have found that the sole proximate cause of the accident was plaintiffs conduct in stopping suddenly without signaling is based upon speculation. We therefore would reverse the judgment insofar as appealed from, grant plaintiff’s motion, set aside the verdict in part, reinstate the amended complaint and grant a new trial on the issue of proximate cause only. Present—Gorski, J.E, Fahey, Eeradotto, Green and Fine, JJ.

Appeal from a decision and award of the Workmen’s Compensation Board. Decedent fell while carrying steel rods down a steep ramp and died. There was no autopsy; but the medical examiner gave the cause of death *676as “ coronary sclerosis ”. The board could find, however, that decedent was alive when the fall began. An eyewitness said that decedent’s “reaction” as he “ went down the ramp ” was that “ his hands went out ”. The ramp was cleated and the witness, describing what he saw, said that when decedent stepped onto the ramp “ like his foot hit the cleat or slipped off the cleat and he went forward and went down to the ground.” The exact cause of death depended in this record on hypothesis. There is proof that when decedent fell the front part of his body struck the ramp. The witness elucidated this by saying: “ Well, he landed say on his chest, I would surmise on his chest or stomach. * * * He landed frontwards.” A physician testified to the opinion that the fall, the pitching forward, and striking his chest caused his heart to go into “ ventricular fibrilliation ” which contributed to his death. Another physician testified to substantially the same opinion. There is testimony the other way; but the record sustains the finding of accident and of causal relation to the death. Award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Appeal from a judgment of the Court of Claims dismissing the claim for conscious pain and suffering and wrongful death of the claimant’s intestate based on the State’s negligence in failing to properly maintain a highway. The claimant’s intestate was driving his motorcycle at a place on Route 17 known as Tuseorora Hill when the accident occurred which caused his death. There was no eyewitness to the actual accident although a friend of the decedent who was driving his motorcycle several hundred feet ahead of the decedent testified that a passenger on his motorcycle saw the decedent’s light start to wobble and they turned around and found the decedent lying on the side of the highway. He testified that they were driving at 50 miles per hour, that the decedent had driven his motorcycle over the same highway before and that the road was rough with the inside being pretty good and the outside next to the shoulder quite rough. The motorcycles were driven in staggered formation with the decedent riding the outside next to the shoulder and his friend the inside near the center of the highway. On the extreme edge of the highway about 100 feet from where the decedent’s body was found there was a saucer like depression, which was estimated by different witnesses at from one-half inch to three inches deep. Scratch marks were found leading from the decedent’s motorcycle to within 10 feet of this depression. The decedent and his friend had been at taverns drinking beer from 10:30 p.m. to 1:00 a.m., had then gone to a diner for coffee and a sandwich and were on their way to a house party when the accident occurred at about 3:00 a.m. The Court of Claims pointed out that a prudent motorcycle operator would not hug the edge of the highway without good reason and held that it was not established that the State was here negligent in maintaining the highway. The court further held that even if such negligence were established “ the claim would still have to be dismissed because of the negligence of the deceased.” The evidence in this record presented questions of fact- for the court below both as to the negligence of the State and the contributory negligence of the decedent and its determination of those questions is fully supported by the record (cf. Cramer v. State of New York, 4 A D 2d 798). Judgment unanimously affirmed, without costs.

Appeal from a decision and award of the Workmen’s Compensation Board. Deceased employee worked as a grader machine operator in road construction. The employer’s place of business was about six miles from the site at which the decedent had been working with the grader. Near the place of business the employer owned a garage for which the decedent had carried a key for some three or four years. Oil for the grader and tools for its service were kept in the garage. Decedent had the key for access to the garage to obtain oil and use of tools for the grader. Early in the morning of November 19, 1956 decedent was found dead in the seat of a truck in the garage. The truck motor was running and its heater was on. The door of the garage was closed. It was a cold morning. Decedent’s death was due to carbon monoxide poisoning. The grader had been removed by the decedent (he was the only person having a key to it) from the job site six miles away and was standing in front of the *677garage. This was discovered some hour and one half before the decedent was expected to begin work that day; and the presence of the grader there led to the discovery of the body. The board has found that the presumptions attach to the decedent’s death; that it was accidental and occurred in the course of employment. That the death was accidental could readily be found. The coldness of the weather would justify the turning on of the motor and the heater in the garage; and the presumptions of the statute are strongly against suicide. The main problem in the case is whether this accident occurred so early in the morning and so much before the decedent’s expected hour to begin work that it be deemed not in the course of employment. But this is not a case where an employee merely arrives too early and waits. It could be found that decedent came early to make some adjustment in the grading machine; or to obtain oil for it and felt it was necessary both to do that well before the usual time of work arrived and to take it to the vicinity of the employer’s garage to service it. If this was possible, and reasonably to be inferred, decedent could have been found within the scope of employment. The fact decedent had keys to a place in which supplies and equipment related to the functioning of a grader were stored, and also had the only key to the grader, which itself was mobile, indicate that a finding that he was there in the interest of the employer and hence in the course of employment was warranted. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Appeal by an employer and its insurance carrier from a decision and award of the Workmen’s Compensation Board for disability due to toxic hepatitis which the board held to be an occupational disease. In her employment for some six years by a manufacturer of novelties, claimant was exposed to lacquers and a thinner kept in several open containers upon a table, about 12 feet from her and used by a fellow worker in retouching such dolls or figurines as came from the manufacturer with scratches or other marks. The lacquer was composed of aromatic hydrocarbons (toluol) and esters (amylacetate) and the thinner contained these substances and acetone in addition. There was evidence of the employer’s purchase and use of these products in substantial quantities. The medical testimony was in sharp dispute but the board was warranted in accepting the testimony of claimant’s medical expert who had treated her and whose opinion was supported by pathological studies and reports following biopsy and by his elimination of other possible causative factors. The record supports, also, the finding of occupational disease. Claimant’s exposure to the fumes of these volatile chemicals constituted the essential “recognizable link” between disease and employment (Matter of Detenbeck v. General Motors Corp., 309 N. Y. 558, 562) and the fact of claimant’s sensitivity to these toxic agents does not bar an award (Matter of Rogan v. Charles F. Noyes, Inc., 10 A D 2d 765, motion for leave to appeal denied 8 N Y 2d 705; Matter of Ciampa v. Tripp Plating Co., 3 A D 2d 621). 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 Decedent was a long distance truck driver and was killed when his truck went off the road near Irving, New York, on a trip scheduled between Buffalo and Sioux Cityq Iowa. He was hired by appellant Garvey, a common carrier; but since Garvey had no interstate commerce authorization to carry to Iowa, this shipment was undertaken under a lease of equipment agreement with appellant North American, which had interstate authority. The equipment thus leased was for the “ exclusive use, possession and service ” of North American which, among other things, had the right to “ remove * * * and * * * replace ” the driver. The board thus had before it a record fully adequate to determine that Garvey was decedent’s general employer and North American his special employer and that for this accident compensation responsibility be shared by the two employers. Appellants argue that the accident did not arise out of or in the course of employment. Route No. 5 was the usual route from Buffalo to Sioux City; but decedent was not directed to follow it. His directions in respect of the trip were to meet a specified schedule of days and within that he could travel at any time consistent with Interstate Commerce Commission regulations as to sleep, or by any reasonable route. The accident occurred a short distance off of Route No. 5, but while the truck was moving in the direction, of that road and in the direction of its ultimate destination. This brings the accident fully within the scope of employment. Decedent could have stopped to sleep, or to eat, or for some personal purpose within the wide choice of time and route open to him, and when he resumed his movement toward the ultimate destination he would be within his employment. It is suggested that decedent left the road to deliver some chairs to his mother. But at the time of accident he had not delivered the chairs and he was moving in a direction away from his mother’s house toward Sioux City. Even if he had delivered the chairs it could be found that the general employer had consented to such delivery and that this employer’s broad agency for the special employer would have been *678sufficient to impose a compensation liability on the latter. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered January 3, 2006 in a personal injury action. The order, insofar as appealed from, granted that part of the motion of defendants David W. Hoffman and David W. Hoffman and Amy E. Hoffman, trustees of the 1997 Hoffman Family Living Trust, for summary judgment on their cross claim for indemnification against defendant Pino Restaurant, Inc., doing business as Billy Bob’s. It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is denied in its entirety. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Andrea M. Fuller (plaintiff) when defendant Frank D. Marcello, mistakenly believing that his car was in reverse, drove his car forward into the pedestrian area of a restaurant, striking a support pole and causing the pole to fall on plaintiff. Supreme Court erred in granting that part of the motion of defendants David W Hoffman and David W Hoffman and Amy E. Hoffman, trustees of the 1997 Hoffman Family Living Trust (collectively, Hoffman defendants), for summary judgment on their cross claim for indemnification against defendant *1163Pino Restaurant, Inc., doing business as Billy Bob’s (Pino). The Hoffman defendants contended in support of their motion that, as out-of-possession landlords, they have no liability for the condition of the property that was leased to and operated by Pino. Although an out-of-possession landlord who relinquishes control of the premises generally is not liable for injuries caused by an unsafe condition existing on the premises, there is an exception to that general rule “ ‘where the lessor rents premises for a public use when he knows, or should have known, that they are in a dangerous condition’ at the time of the lease” (Brady v Cocozzo, 174 AD2d 814, 814 [1991]; see Campbell v Holding Co., 251 NY 446, 448-449 [1929]). Here, the evidence submitted in support of the Hoffman defendants’ motion establishes that the premises were generally in the same condition at the time of the accident as when David Hoffman owned and operated the premises. Furthermore, David Hoffman testified at his deposition that he was aware that another vehicle previously had crashed into the restaurant. We thus conclude that the Hoffman defendants failed to meet their initial burden of establishing that they did not know, or had no reason to know, of the alleged dangerous condition of the property at the time of the lease (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Present—Hurlbutt, J.P, Gorski, Lunn, Peradotto and Green, JJ.

Appeal from a decision and award of the Workmen’s Compensation Board. Although a long period elapsed between the date of the accident (April 20, 1950) to which the decedent’s cardiac condition has been attributed, and his death (October 20, 1957), there are continued links of association of the two events which sufficiently sustain the award of compensation. The original accident is well established. Decedent was moving a roll of paper weighing from 870 to 900 pounds when a wooden wedge used to help turn it slipped and decedent testified during his lifetime that he “felt a pain in the center of my chest” when he “tried to twist the roll”. He was hospitalized for acute myocardial infarction; and there is adequate medical proof that the accident helped cause it. Decedent was thereafter under continuous medical care until his death. After a period of total disability he was found to be partially disabled; and awards were made and paid for partial disability. There is contemporaneous medical proof taken during his lifetime before the board in which a failure to show improvement in his condition is noted. A new coronary thrombosis occurred in 1957, and there is adequate medical proof connecting the resulting death with the earlier accident. The medical evidence in this respect is substantial. Decision and award unanimously affirmed, with costs to the Workmen’s 'Compensation Board.

Appeals from two orders of Surrogate’s Court, Albany County. Decedent died a resident of Albany County and a citizen of West Germany and the Surrogate has issued limited letters of administration to the Public Administrator. Decedent is survived by a mother and father residing in West Germany and who are citizens of that country, and by the petitioner, who is a brother and a resident of Albany County. Petitioner has no personal interest in the estate; the parents in West Germany are the sole distributees. In the first petition to the Surrogate petitioner asked that ancillary letters be granted him. This was denied on the ground that the decedent was a resident of Albany County and since primary letters had not been issued elsewhere there is no authority to issue ancillary letters (Surrogate’s Ct. Act, § 100; 5 Warren’s Heaton, Surrogates’ Courts § 456, pp. 75, 76). In Matter of Taormina (2 A D 2d 711, affd. 2 N Y 2d 878) the decedent was a nonresident. After denial of this application, petitioner made a second application for the issuance of letters of administration to himself as attorney in fact of the parents. Petitioner could not himself qualify since, as it has been seen, he has no personal interest in the estate (Surrogate’s Ct. Act, § 118). But the parents are incompetent to receive letters since they are nonresident aliens (Surrogate’s Ct. Act, § 94, subd. 3); nor can they designate an attorney to receive the letters for them (Matter of Mora, 133 Misc. 254; 2 Jessup Redfield, Surrogates Law and Practice, § 1360, p. 606). Orders unanimously affirmed, without costs.

Appeal from an order of the Supreme Court, Chautauqua County (Paula L. Feroleto, J.), entered February 23, 2006 in a products liability action. The order denied defendant’s motion for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs. Memorandum: Plaintiff commenced this products liability action seeking damages for injuries he allegedly sustained when a transformer designed and manufactured by defendant exploded. The explosion occurred shortly after plaintiff energized the transformer while in the course of his employment as a lineman *1164for Niagara Mohawk Power Corporation (Niagara Mohawk). Initially, plaintiff reported to his employer and doctors that he was injured when he reached out of an aerial bucket while installing the transformer on a utility pole. Plaintiff later claimed that his injuries occurred as a result of the transformer explosion, but at that time the transformer could not be located for inspection or testing concerning the cause of its failure. Plaintiff alleges, inter alia, that his injuries were caused by defendant’s defective design and manufacture of the transformer. We conclude that Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint, although our reasoning differs from that of the court. In support of its motion, defendant had the burden of establishing as a matter of law that there was no defect in the design or manufacture of the transformer (see Maciarello v Empire Comfort Sys., 16 AD3d 1009, 1010 [2005]; Lauber v Sears, Roebuck & Co., 273 AD2d 922 [2000]; Terry v Erie Foundry Co., 235 AD2d 414, 415 [1997]). We note in particular that defendant cannot meet its burden “merely by pointing to the gaps in its opponent’s proof’ (McArthur v Muhammad, 27 AD3d 532, 533 [2006]; see George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]; see also Frank v Price Chopper Operating Co., 275 AD2d 940 [2000]). Here, defendant submitted evidence establishing that its transformers generally were designed and manufactured under state of the art conditions according to Niagara Mohawk’s specifications and complied with all applicable industry standards, and that the transformer in question would have been individually tested to ensure compliance with customer specifications and industry requirements. That evidence does not establish as a matter of law that the transformer was not defective and that a manufacturing defect therefore did not cause the explosion (see Graham v Pratt & Sons, 271 AD2d 854 [2000]; Peris v Western Regional Off-Track Betting Corp., 255 AD2d 899 [1998]). Inasmuch as defendant failed to meet its burden on the motion, there is no need to consider the adequacy of plaintiffs submissions in opposition (see Herman v Town of Clarence, 256 AD2d 1229, 1230 [1998]). Finally, we note that defendant did not seek spoliation sanctions, and thus we have not considered plaintiffs alleged fault for the unavailability of the transformer for inspection and testing. All concur except Peradotto, J., who dissents and votes to reverse in accordance with the following memorandum.

Peradotto, J. (dissenting). I respectfully dissent. In my view, defendant met its initial burden of establishing its entitlement *1165to summary judgment as a matter of law, and plaintiff failed to raise an issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). A defendant’s burden on a motion for summary judgment is to establish that “the [plaintiffs] cause of action . . . has no merit” (CPLR 3212 [b]). In determining whether a defendant has met that burden, courts must consider the factual posture of the case and the corresponding evidence necessary to support the causes of action and defenses. Here, the majority’s focus is solely on plaintiffs manufacturing defect claim. There is no direct evidence of a manufacturing defect in the subject transformer because it is no longer available, and neither party had the opportunity to inspect or test it after the accident. Thus, plaintiffs manufacturing defect claim is entirely dependent on circumstantial evidence. Although it is well settled that plaintiff may prove that claim with circumstantial evidence (see Shelden v Hample Equip. Co., 89 AD2d 766, 767 [1982], affd for reasons stated 59 NY2d 618 [1983]; Halloran v Virginia Chems., 41 NY2d 386, 388 [1977]), he nevertheless must establish that the product did not perform as intended and he must exclude all causes of the accident not attributable to defendant (see Shelden, 89 AD2d at 767; Halloran, 41 NY2d at 388; see also PJI 2:141.1 [2007]). Product defect in a circumstantial evidence case is established, in effect, by a process of elimination. The majority concludes that defendant failed to establish that plaintiffs manufacturing defect claim has no merit because the “evidence does not establish as a matter of law that the transformer was not defective and that a manufacturing defect therefore did not cause the explosion.” In support of its conclusion, the majority relies on Peris v Western Regional Off-Track Betting Corp. (255 AD2d 899 [1998]) and Graham v Pratt & Sons (271 AD2d 854 [2000]). Peris stands for the proposition that a defendant moving for summary judgment dismissing a manufacturing defect claim is required to establish that its product was not defective. That case, however, did not involve facts such as those in this case, where the product is unavailable for inspection and testing. Graham likewise does not appear to involve a missing product. In a case involving a product that is available to all parties for inspection and testing, a defendant must of course establish that the product was not defective in order to meet its initial burden on a motion seeking summary judgment dismissing a manufacturing defect claim. By its holding, the majority is requiring defendant to make that same showing where the product is unavailable for inspection and testing. In my view, the majority thus is disregarding the *1166particular facts of this case and is thereby creating a burden that is impossible for defendant to meet and that is greater than that required by precedent. The further requirement imposed by the majority, i.e., that defendant eliminate a manufacturing defect as a cause of the accident, also is a misstatement of the law in a manufacturing defect case where the product is unavailable. A defendant in such a case is not obligated to establish the precise cause of the accident or to eliminate a manufacturing defect as a possible cause. Rather, the defendant need only offer other possible causes of the accident not attributable to it (see Shelden, 89 AD2d at 767; Halloran, 41 NY2d at 388; see also PJI 2:141.1 [2007]). Indeed, the majority by its holding is in effect determining that a defendant against whom a manufacturing defect claim has been asserted will never be entitled to summary judgment dismissing that claim when the product is unavailable for inspection and testing. In my view, existing law requires that a defendant seeking summary judgment in a manufacturing defect case in which the product is unavailable for inspection and testing must establish as a matter of law that it may be inferred from the evidence that the product was not defective when it left the defendant’s control and that there are other possible causes of the accident not attributable to the defendant. The defendant is thereby establishing that the plaintiffs cause of action has no merit (see CPLR 3212 [b]). Here, defendant established in support of its motion that there was no direct evidence of a product defect when the product left its control. Defendant further established that the transformer was manufactured in accordance with industry standards under state of the art manufacturing processes and that it was subject to quality control measures as well as inspection and testing procedures. The evidence submitted in support of the motion included the affidavit of an expert engineer who opined that, “[g]iven the various stages of testing and inspection, it [was] virtually impossible for a transformer with an internal fault to leave [defendant’s] plant.” Defendant thus established as a matter of law that it may be inferred from the evidence that the transformer was not defective when it left defendant’s control. Although the majority notes the well-settled principle that a defendant cannot meet its burden merely by pointing to gaps in its opponent’s proof, defendant did not attempt to do so here (cf. Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]). Defendant also established possible causes of the accident *1167other than a product defect. Defendant submitted evidence establishing that the transformer was opened and rewired after it left defendant’s possession, and that water could enter the transformer during that process. In addition, defendant submitted evidence that the transformer may have been rebuilt by plaintiffs employer or one of the vendors of plaintiffs employer. Defendant’s expert stated in his affidavit that the transformer could have exploded as a result of subsequent rewiring or rebuilding. I thus conclude that defendant met its initial burden on the motion. In opposition, plaintiff failed to raise an issue of fact to defeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The affidavit of plaintiff’s expert engineer is conclusory and speculative (see McGregor v Flexcon Co., 275 AD2d 1001, 1002 [2000], lv denied 96 NY2d 702 [2001]). The opinions of plaintiffs expert were based on his examination of a materially different transformer, and he did not indicate that he was familiar with or had examined a transformer similar to the one involved in plaintiffs accident. Further, plaintiffs expert was unable to exclude the possibility that the transformer failed because of negligent rewiring, and he was unable to refute the possibility that the transformer in question was rebuilt by plaintiffs employer or one of its vendors prior to the accident. I therefore would reverse the order, grant defendant’s motion for summary judgment and dismiss the complaint. Present— Hurlbutt, J.P, Gorski, Lunn, Peradotto and Green, JJ.

Appeal and cross appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered July 12, 2006 in a personal injury action. The order denied in part defendants’ motion for summary judgment dismissing the complaint and denied plaintiffs cross motion for partial summary judgment on liability under Labor Law § 240 (1) and § 241 (6). It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by grant*1168ing the motion in its entirety and dismissing the complaint and as modified the order is affirmed without costs. Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking to recover damages for injuries he sustained while working for a subcontractor engaged by defendants to build the concrete foundation for their new home. On the day of the accident, plaintiff was in the back of a cargo truck unloading forms used to hold the concrete for the foundation walls. The forms were made of aluminum and were three feet wide and four feet high. The truck’s cargo floor was 48 inches above the ground. In order to enter the cargo area of the truck, plaintiff leaned one of the forms against the rear bumper of the truck and climbed up the form. When plaintiff wanted to exit the cargo area of the truck for his lunch break, he again leaned a form against the rear bumper and began to step down from the truck onto the form. On his second step, “the form tilted to the right” and plaintiff fell. Plaintiff does not know what caused the form to tilt to the right. Supreme Court properly granted that part of defendants’ motion for summary judgment dismissing plaintiffs Labor Law § 240 (1) claim and properly denied that part of plaintiffs cross motion for partial summary judgment on liability with respect to that claim. In order to trigger the extraordinary protections of section 240 (1), a worker must be performing a task that inherently entails “a significant risk . . . because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). Contrary to the contention of plaintiff, his work in unloading the cargo truck, including entering and exiting the truck, does not trigger the protections of section 240 (1) “because there was no exceptionally dangerous condition posed by the elevation differential between the [cargo floor] of the truck and the ground, and there was no significant risk inherent in the particular task plaintiff was performing because of the relative elevation at which he was performing that task” (Tillman v Triou’s Custom Homes, 253 AD2d 254, 257 [1999]; see Toefer v Long Is. R.R., 4 NY3d 399, 408 [2005]; Piccolo v St. John’s Home for Aging, 11 AD3d 884, 885 [2004]; Santoro v New York City Tr. Auth., 302 AD2d 581, 582 [2003]; Plump v Wyoming County, 298 AD2d 886, 886-887 [2002]). Contrary to plaintiffs further contention, the court properly granted that part of defendants’ motion for summary judgment dismissing the Labor Law § 241 (6) claim with respect to the alleged violations of 12 NYCRR 23-1.21 (b) (1) and (4) (v) and 23-*11691.22 (b) (4). 12 NYCRR 23-1.21 (b) (1) and (4) (v) are inapplicable to the facts of this case because plaintiff did not fall from a ladder. Even if the form from which plaintiff fell could be considered a ladder within the meaning of those regulations, they are nevertheless inapplicable because there is no evidence that the accident was caused by or related to any insufficiency in the strength of the form (see 12 NYCRR 23-1.21 [b] [1]; Cruz v Seven Park Ave. Corp., 5 Misc 3d 1018[A], 2004 NY Slip Op 51417[U]), or that the form was leaned against “a slippery surface” (12 NYCRR 23-1.21 [b] [4] [v]). 12 NYCRR 23-1.22 (b) (4) is inapplicable because the form did not extend to “a height of more than four feet above the ground” (id.). We agree with defendants that 12 NYCRR 23-1.21 (b) (4) (i) and 23-1.7 (f), the remaining regulations relied upon by plaintiff to support his Labor Law § 241 (6) claim, are inapplicable, and thus that the court erred in failing to grant in its entirety that part of defendants’ motion for summary judgment dismissing that claim. We therefore modify the order accordingly. Section 23-I. 21 (b) (4) (i) is inapplicable because the form was not used as a regular means of access between floors or levels of a building or structure (see Jamison v County of Onondaga, 17 AD3d 1142, 1143 [2005]). Section 23-1.7 (f) is inapplicable because the cargo floor of the truck “cannot be said to be a ‘working level[ ] above . . . ground’ requiring a stairway, ramp or runway under that section” (Farrell v Blue Circle Cement, Inc., 13 AD3d 1178, 1180 [2004], lv denied 4 NY3d 708 [2005]). Present—Hurlbutt, J. P, Gorski, Lunn, Peradotto and Green, JJ.

Appeal from an order of the County Court of Delaware County which denied, without a hearing, an application by defendant for an order in the nature of a writ of error coram nobis to vacate a judgment of conviction. The denial of the application for insufficiency of the petition was *680proper. The naked, conclusory allegations as to what defendant was “led to believe * * * by acts of the sentencing court ” are unsupported by any factual averment; and the allegation of “trickery, fraud and deceit” on the part of the District Attorney is based upon the irrelevant contention that the District Attorney failed to “notify” defendant that upon conviction he would be treated as a multiple offender. The petition fails, also, to demonstrate more than the flimsiest factual basis for the additional conclusory allegations as to failure to permit sufficient time “ to plead or prepare to plead to the indictment ” and as to the lack of competence of assigned counsel. (Cf. People v. Brown, 7 N Y 2d 359; People v. Wise, 11 A D 2d 585.) Defendant’s contention as to the insufficiency of the indictment is without merit and would not, in any event, afford a basis for coram nobis. The petition does not effectually present, if at all, the issues which defendant’s argument seeks to raise as to the denial, on each resentence, of defendant’s application to withdraw his previous plea of guilty. In any event, the certified copies of the stenographer’s minutes of the proceedings on each occasion, filed in the County Clerk’s office and submitted on the argument (cf. People ex rel. Williams v. Murphy, 6 N Y 2d 234; Ripley v. Storer, 309 N. Y. 506; People v. Trahan, 8 A D 2d 687), indicate no basis for relief, and certainly none by coram nobis. Order unanimously affirmed.

Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered March 17, 2003. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, assault in the first degree, assault in the second degree (three counts) and endangering the welfare of a child. It is hereby ordered that the judgment so appealed from be and the same héreby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of, inter alia, murder in the second degree (Penal Law § 125.25 [4]) arising out of the death of a two-year-old girl. We reject the contention of defendant that County Court erred in denying his motion for a change of venue to a court outside Jefferson County. The motion was made prior to jury selection and was therefore premature (see People v *1170Mateo, 239 AD2d 965 [1997]). Furthermore, defendant failed to preserve for our review his challenge to the venue of the trial inasmuch as he failed to renew his motion for a change of venue after his initial motion was denied (see People v Brockway, 255 AD2d 988 [1998], lv denied 93 NY2d 967 [1999]). In any event, the record fails to establish that any of the selected jurors had formed an opinion with respect to defendant’s guilt or innocence based on news reports of the events underlying the crimes. Defendant failed to comply with the requirements of CPL 270.10 (2) and thus waived his challenge to the racial composition of the jury panel (see People v Bradley, 247 AD2d 929 [1998], lv denied 91 NY2d 940 [1998]). In any event, defendant failed to demonstrate that a specific race was systematically excluded from the panel (see id.). Defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence (see People v Gray, 86 NY2d 10, 19 [1995]). Finally, defendant was not denied effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 146-147 [1981]), and the sentence is not unduly harsh or severe. Present—Scudder, PJ., Martoche, Centra, Fahey and Pine, JJ.

Appeal from a judgment of nonsuit, Supreme Court, Sullivan County. In the course of constructing an access road in Liberty to the Monticello By-Pass the defendant piled rocks in an area about 20 feet around and four or five feet high, partly on the unfinished right of way of the access road and partially on Washington Street. Plaintiff Michael Allen Sehiff, then four years old, and in the charge of his seven-year-old sister, climbed to the top of the rocks and fell. There was no proof that the rocks gave way or created any danger, other than the chance of falling, to a child who climbed up them. No need to climb this pile of rocks with all the surrounding space open to walk in has been demonstrated. The inferential argument pursued by appellants that the pile of rocks barred or interfered with the progress of the children in the roadway is without substance. The photographs and other proof offered by appellants make it clear it would be easy to walk around the pile of rocks. Cases in which a liability has been spelled out in the use of public thoroughfares have depended on some obvious *681or reasonably foreseeable special danger in the instrument of injury, as in the falling bag of pebbles (Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145); the protruding sharp wire (Mysliwiec v. Lowenthal, 280 App. Div. 852); the rolling beams (Boylhart v. Di Marco & Reimann, 270 N. Y. 217); or the rail which slipped (Ramsey v. National Contr. Co., 49 App. Div. 11). No case which has been cited has gone as far as the liability sought to be imposed here (cf. Licata v. City of New York, 249 App. Div. 848). If the additional point made by respondent that the proof was insufficient because the girl witness, then aged 10, was not sworn, were the only ground to affirm the judgment of nonsuit, we would remit to take her sworn testimony. For the purpose of reaching the merits, we treat her testimony as properly in the record. Judgment unanimously affirmed, without costs.

*1171Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered May 3, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the third degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him after a jury trial of, inter alia, murder in the second degree (Penal Law § 125.25 [1]), in connection with the stabbing death of his former girlfriend. Contrary to defendant’s contention, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The evidence presented at trial established that there were bloodstains in the pockets and on the waistband of a pair of pants recovered from defendant’s residence and that the DNA of the bloodstains matched that of both defendant and the victim. Furthermore, two witnesses testified that, while they were incarcerated with defendant, defendant admitted that he killed the victim and that he was concerned about bloodstains on a pair of pants. The jury was entitled to resolve the credibility issues with respect to those witnesses in favor of the People (see People v Walek, 28 AD3d 1246 [2006], lv denied 7 NY3d 764 [2006]). We reject the further contention of defendant that the testimony of one of those witnesses deprived him of his right to counsel because the witness had acted as his “legal advisor” during their incarceration. County Court properly determined following the pretrial Cardona hearing that the witness was not acting as an agent of the government because he was working independently of the prosecution and the information was not sought by the prosecutor but, rather, was passively received by the prosecutor (see People v Cardona, 41 NY2d 333, 335 [1977]; People v Smith, 2 AD3d 1431, 1433 [2003], lv denied 2 NY3d 746, 806 [2004]). We reject the contention of defendant that his right to counsel was violated because one of his attorneys also represented a prosecution witness. The record establishes that, upon learning of the conflict, the attorney promptly advised the court and was relieved of representing the prosecution witness several months before the commencement of the trial (see generally People v Lombardo, 61 NY2d 97, 102-103 [1984]). We note, however, that the court failed in its obligation to conduct a record inquiry to determine whether defendant was aware of the risks of the potential conflict and waived those risks (see People v Harris, 99 NY2d 202, 211 [2002]; cf. People v Uthman, 31 AD3d 1179 [2006], lv denied 7 NY3d 852 [2006]). Nevertheless, we conclude *1172under the circumstances of this case that defendant has failed to establish “the existence, or probable existence, of a conflict of interest [that] bears a substantial relation to the conduct of the defense” (Harris, 99 NY2d at 211 [internal quotation marks omitted]; see People v McDonald, 68 NY2d 1, 9 [1986]). Defendant failed to preserve for our review his contention that he was deprived of a fair trial based on several instances of prosecutorial misconduct (see CPL 470.05 [2]) and, in any event, defendant’s contention lacks merit. In reviewing the alleged instances of misconduct, we note that, contrary to defendant’s contention, the prosecutor did not inject the issue of his own credibility into the trial (see People v Rivera [Robert], 27 AD3d 491 [2006], lv denied 6 NY3d 852 [2006]). In addition, we note that, although the prosecutor improperly commented on facts not in evidence, the court sustained defendant’s objection to those improper comments and any prejudicial effect therefore was dispelled (see People v Rickard, 26 AD3d 800, 800-801 [2006], lv denied 7 NY3d 762 [2006]); that statements made by the prosecutor during summation were fair comment on the evidence and “ ‘did not exceed the broad bounds of rhetorical comment permissible in closing argument’ ” (People v Williams, 28 AD3d 1059, 1061 [2006]; see People v Kelly, 34 AD3d 1341 [2006]); and that the prosecutor’s contact with informants prior to trial did not create a situation in which the prosecutor’s role would become “a material issue in the case” (People v Paperno, 54 NY2d 294, 302 [1981]; see generally People v Garcia, 27 AD3d 398, 398-399 [2006], lv denied 7 NY3d 789 [2006]). Defendant further contends that the court abused its discretion in admitting in evidence a knife block that was missing one knife. The knife block allegedly was owned by the victim and was found among defendant’s belongings at the location where defendant was staying with his brother. Defendant failed to preserve his contention for our review (see CPL 470.05 [2]) and, in any event, we conclude that the court did not abuse its discretion in admitting the knife block in evidence (see generally People v Mateo, 2 NY3d 383, 424-425 [2004], cert denied 542 US 946 [2004]; People v Smith, 12 AD3d 1106 [2004], lv denied 4 NY3d 767 [2005]). Finally, we reject the contention of defendant that he was denied effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]; People v Lockett, 34 AD3d 1208 [2006]). Present—Scudder, PJ., Martoche, Centra, Fahey and Pine, JJ.

*1173Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered November 18, 2005 in a breach of contract action. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs’ cross motion for leave to amend the complaint to add a cause of action for fraud. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: In 1997 defendant contracted with plaintiff Allesandro Bertoni and Vito Dionisio, who is now deceased, to construct, inter alia, a roadway with a “binder” depth of two inches. A “binder course” is “a coarse aggregate bound with bitumen between the foundation and the wearing course of an asphalt pavement” (Webster’s Third New International Dictionary 217 [1993]). Construction of the roadway was completed in November 1997, and final payment for that roadway was made in May 1999. Plaintiffs commenced this action for breach of contract after discovering, in July 2003, that the roadway had not been constructed with a two-inch binder course. Defendant moved for summary judgment dismissing the complaint as barred by the statute of limitations, and plaintiffs cross-moved for leave to amend the complaint to add a cause of action for fraud. We conclude that Supreme Court properly granted defendant’s motion and denied plaintiffs’ cross motion. Contrary to plaintiffs’ contention, equitable estoppel did not serve to toll the statute of limitations on the underlying breach of contract cause of action. Here, there is an alleged concealment without any actual misrepresentation, and thus “estoppel is appropriate only where there is a fiduciary relationship that ‘gave . . . defendant ] an obligation to inform [Allesandro and *1174Vito] of facts underlying the claim’ ” (Niagara Mohawk Power Corp. v Freed, 288 AD2d 818, 819 [2001], quoting Gleason v Spota, 194 AD2d 764, 765 [1993]). In this case, there is no evidence of such a relationship. Contrary to the further contention of plaintiffs, the court properly denied their cross motion for leave to amend the complaint. “Although leave to amend pleadings should be freely granted (see CPLR 3025 [b]), leave is properly denied where, as here, the proposed amendment plainly lacks merit” (A.R. Mack Constr. Co. v Patricia Elec., 5 AD3d 1025, 1026 [2004]; see Manufacturers & Traders Trust Co. v Reliance Ins. Co., 8 AD3d 1000, 1001 [2004]; Christiano v Chiarenza, 1 AD3d 1039, 1040 [2003]). Plaintiffs are correct that fraudulent concealment is a viable cause of action in New York (see generally P.T. Bank Cent. Asia, N.Y. Branch v ABN AMRO Bank N.V., 301 AD2d 373, 376 [2003]; Swersky v Dreyer & Traub, 219 AD2d 321, 326 [1996]). In this case, however, the proposed fraudulent concealment cause of action “may not be independently asserted” because it arises from the same facts that serve as the basis for the breach of contract cause of action (Dec v Auburn Enlarged School Dist., 249 AD2d 907, 908 [1998]; see Ross v DeLorenzo, 28 AD3d 631, 636 [2006]; Todd v Grandoe Corp., 302 AD2d 789, 791 [2003]; Schunk v New York Cent. Mut. Fire Ins. Co., 237 AD2d 913, 915 [1997]). Present—Scudder, PJ., Martoche, Centra, Fahey and Pine, JJ.

Appeal from a decision and award of the Workmen’s Compensation Board. Decedent was a garage mechanic for a taxi company. It could be found that, with the express permission of the employer, decedent repaired a car owned by a fellow-employee; and that there was some rather remote connection between the fellow-employee’s arrival on time for work and the proper functioning of his car. After decedent completed work on this ear, it still did not function properly and after usual hours of work decedent came back into the shop to work on it; while there another employee accidentally threw a lighted match on the floor causing the gas line of the car to ignite, burning decedent, and eventually causing his death. Although it seems not disputed that the employer authorized the work which decedent commenced during usual working hours, it is argued that this authorization did not extend to the after-hours period when the accident happened, and that he was not in the course of employment at that time. But authorization to do the work might on this record be found as a fact to include authorization to do the work properly, even extending after usual work hours. Moreover, there is established a formal admission against interest by the employer — at the high level of judicial admission—-that the injury occurred in the course of employment. The claimant widow sued the employer in the Supreme Court alleging negligence. Among other defenses the employer alleged that decedent “ was acting in the course of his employment and in furtherance of the business of this defendant” when injured. The finding by the board that the accident occurred in the course of employment is fully warranted. The claim has been allowed by the board in favor of the dependent children of the decedent; but dismissed as to the widow because of a “ compromise ” of a third-party action without consent of the carrier. We think the widow’s claim should not have been dismissed on this ground. The action was maintained in the Supreme Court by the widow both against the employer directly and against the owner of the building. It alleged the negligence of the employer as well as of the building owner in failing to provide a safe place to work and failure to make necessary protective rules. The building owner cross-claimed against the employer alleging liability over if it were to be found liable. The employer pleaded the defense that the Workmen’s Compensation Law provided the sole remedy. Counsel for the widow marked the case “ settled ” on the calendar, apparently inadvertently, and without approval of the widow or the carrier. No settlement was ever effected; but plaintiff was unable by appropriate motion to get the case restored to the calendar. The facts thus shown do not bar the widow’s prosecution of her claim. This was not a “ third-party action ” within section 29 of the Workmen’s Compensation Law insofar as the action against the employer was concerned. That section refers throughout to an action against *682“another” or “such other”, meaning not the employer and not one in the same employment. The discontinuance of an action against an employer cannot reasonably be deemed to fall within this section on any possible reading of its language; nor could the discontinuance of the action asserted jointly against the employer and one who could not be liable except derivitably through the employer be treated in any different way. (Cf. Matter of Janikowski v. Yardleys of London, 11 A D 2d 577.) The owner of the building could only become liable under the theory asserted in the complaint of the widow if the employer itself had been liable for failing to provide a safe place to work and to make proper regulations. Other legal theories might be spelled out under different facts or different pleadings, but this is the only admissible theory under the pleadings in this Supreme Court action. This is not, therefore, literally an action against “ another ” in the sense in which the term is used in section 29. Moreover, there seems to have been no compromise within the intent of the statute. The ease was marked “ settled ” through obvious error of counsel and the court refused to restore it. Employer (and presumably its carrier) was not a stranger to these proceedings; on the contrary it was a direct party to the action and could have stipulated restoration. Instead, the employer opposed the motion. We are of opinion that this kind of proceeding does not accrue to the benefit of the employer or carrier within any reasonable interpretation of section 29. Award affirmed as to the infant children and reversed as to claimant widow and remitted to the board for further proceedings, with costs to claimant against the carrier respondent, and with costs in favor of the Workmen’s Compensation Board against carrier as appellant. On the question of costs the order should be settled.

The State appeals from a judgment of the Court of Claims based upon an award of $4,500 for personal injuries sustained by claimant when she fell in a picnic area of a park maintained by the State. The accident happened in Palisades Interstate Park, which consists of a mountainous area on the west shore of the Hudson River. There are many protrusions of rock from the underlying solid rock formation which project above the surface of the ground in the picnic area. It is undisputed that all loose stones were raked up and removed. A part of a permanent rock formation protruded about one foot above the ground surface a foot or two away from a picnic bench. This protrusion was clearly exposed and visible, as were many others in the area. The rocky nature of the area was “ consistent with the spirit and purposes for which this recreational area was created ”, and the Court of Claims so found. The court also found that “ The claimant saw or should have seen the 12 inch high rock before the accident since she sat on the same bench at two positions and on two occasions within a distance of a foot or two away from it.” Claimant testified that when she got up from the bench attached to the picnic table, she stepped backward and her foot came in contact with the rock projection and she fell. The Court of Claims based the award upon a finding “ That the placement of the table and attached seat in close proximity to the outcropping of rock was negligence.” We find nothing in the record to support such a finding: A visitor to a park of this nature cannot expect smooth, level terrain. It was impossible as well as undesirable for the State to remove the natural rocky projections. The rocky projections were numerous and were perfectly obvious to anyone. Under such conditions negligence may not be predicated upon placing one of many picnic tables “ near ” a protruding rock. To do so would place a wholly unrealistic burden upon the -State and make it practically an insurer against mishaps resulting from the natural *683character o£ the area. Moreover, the undisputed facts and the findings of the court would seem to support contributory negligence on the part of claimant. The State's motion to dismiss should have been granted. Judgment reversed on the law and facts and the claim dismissed, without costs.

This is an appeal from an order denying defendant’s motion to dismiss the amended complaint for insufficiency pursuant to rule 106 of the Rules of Civil Practice, on the grounds that it fails to state facts sufficient to constitute a cause of action. The action is for slander. The original complaint was dismissed (after a holding that the slander alleged was not defamatory per se) because special damages were not properly pleaded, with leave to serve an amended complaint. Special Term has held (1) that the face of the complaint does not indicate that the spoken words were absolutely privileged and (2) that special damages are adequately alleged. These are the two issues raised by appellant upon this appeal. It is true that when the complaint shows upon its face that the defense of privilege would be insurmountable if subsequently interposed as a defense the complaint must be dismissed (Goldwater v. Merchants Importing, 6 A D 2d 777; Cohen v. Ellenville Lbr. Co., 4 A D 2d 976; Feldman v. Bernham, 6 A D 2d 498). It is also the rule in New York that defamatory statements made by an attorney in the course of judicial proceedings are privileged if the statements are pertinent to the issues involved (Andrews v. Gardiner, 224 N. Y. 440) but the complaint here alleges that the spoken words were “wholly and completely irrelevant and immaterial to the matters in issue and before the court ”. Plaintiff has therefore affirmatively alleged that the privilege if raised is surmountable which distinguishes the case from the Goldwater case. It may well develop that defendant’s words were absolutely privileged within the broad limits permitted an attorney at a trial, but it does not appear from the face of the complaint nor does the complaint suggest that the alleged words were material to any judicial proceeding, indeed, complete nonpertinency is specifically pleaded. Therefore as to this facet Special Term was correct. The question of whether plaintiff has adequately alleged special damages presents a difficult problem. The allegation numbered “XII” added in the amended complaint reads as follows: “That as a result of the slanderous remarks and statements spoken as aforesaid, the plaintiff has necessarily expended, incurred and become liable for substantial sums of money in the defense of the charges preferred against him, including investigation, procuring statements of witnesses and attorney’s fees and expenses, and also lost considerable income during the period of time the said charges were preferred against him and his suspension from his official duties by reason thereof, all to plaintiff’s damages in the sum of One Thousand Dollars ($1,000.00).” In Reporters’ Assn. v. Sun Print. & Pub. Assn. (186 N. Y. 437, 442) it was written: “whenever special damage is claimed, the plaintiff must state it with particularity, in order that the defendant may be enabled to meet the charge.” In addition to this requirement is the necessity to clearly allege the special damage to be the “legal, natural and proximate, if not the necessary, consequence ” of the defamation. (Terwilliger v. Wands, 17 N. Y. 54 — quoted with approval in the Reporters’ Assn, case, p. 443; Seelman, Law of Libel and Slander, p. 683.) In line with these requirements courts have struck down various purported allegations of special damages. (General loss of business, refusal by clients to pay just claims due by contract, damage to credit and reputation — Reporters’ Assn. v. Sun Print. & Pub. Assn., 186 N. Y. 437; loss of customers without specifying the persons who ceased to be customers or who ceased to purchase — Drug Research Corp. v. Curtis Pub. Co., 7 N Y 2d 435; see Seelman, pp. 684-685 for others.) A *684review of these cases leaves one with the feeling that the damage allegations in the ease at bar appear to be of -a somewhat more definitive, real nature than the typical types of allegations the courts have consistently struck down as not constituting special damage. Reading the allegations XI and XII of the complaint together, it is clear that the plaintiff has alleged: (1) that the purported slanderous words resulted in institution of removal proceedings against him; (2) that at some time during these proceedings he was suspended from his official duties; (3) that he consequently lost considerable income, and expended substantial sums of money in defending the charges preferred against him, such as attorneys’ fees, procuring statements of witnesses, investigations. Plaintiff has properly alleged that the expenses incurred in his defense of the removal proceeding brought against him were the “ legal, natural, and proximate, if not the necessary consequence ” of the purported slander. (Terwilliger v. Wands, supra; Reporters’ Assn. v. Sun Print. & Pub. Assn., supra.) A study of the eases leads to the conclusion that each case must be viewed as an entity in determining the extent to which plaintiff must particularize his special damages. In our view the determination of Special Term herein that plaintiff has sufficiently particularized the special damages should not be disturbed. Order unanimously affirmed, with costs to respondent.

Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.), entered May 8, 2006 in a declaratory judgment action. The judgment was entered in favor of defendants upon an order that, inter alia, denied plaintiffs’ motion for summary judgment and granted defendants’ cross motion for, inter alia, partial summary judgment. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, defendants’ cross motion is denied, the claims alleged in paragraph Nos. 36 (b) and (c) and 38 (b) and (c) are reinstated and plaintiffs’ cross motion is granted upon condition that plaintiffs shall serve the proposed amended reply to the counterclaims within 20 days of service of a copy of the order of this Court with notice of entry. Memorandum: Plaintiffs, a publicly held corporation and its president and chief executive officer, commenced this action seeking, inter alia, a declaration that the latter two of three letter agreements entered into between plaintiffs and defendant CXO on the GO, LLC (CXO) and defendant CXO on the GO of Delaware, LLC (CXO Delaware), respectively, are void and unenforceable. Plaintiff corporation specializes in developing automotive technology and CXO, a business consulting firm, entered into two letter agreements with plaintiffs pursuant to which CXO would provide advisory services for the “commercialization and production” of a full terrain vehicle in *1176exchange for, inter alia, compensation in the form of stock and warrants to purchase stock in plaintiff corporation. Pursuant to the second of the three letter agreements, CXO would provide three of its members to serve as plaintiff corporation’s chairman of the board, chief executive officer and chief financial officer, and that agreement also set forth the terms of defendants’ compensation. Pursuant to the third letter agreement, CXO Delaware was substituted as successor to CXO. In their answer, defendants asserted 14 counterclaims seeking, inter alia, a declaration that all three letter agreements are valid and enforceable. Plaintiffs moved for summary judgment, and defendants cross-moved for, inter alia, “partial summary judgment. . . severing that portion of their First and Eleventh Counterclaim against [plaintiff corporation] for breach of its contractual obligations . . . pursuant to the [letter agreements] and directing [plaintiff corporation] to deliver . . . [warrants to purchase stock and the corresponding] stock certificates” to defendants. In addition, plaintiffs cross-moved for leave to amend their reply to the counterclaims. Supreme Court, inter alia, denied plaintiffs’ motion and cross motion and granted defendants’ cross motion, and plaintiffs appeal. We conclude that the court properly denied plaintiffs’ motion for summary judgment but erred in granting defendants’ cross motion for partial summary judgment. Plaintiffs are correct that provisions of a contract requiring directors of a corporation to select and maintain certain individuals as corporate officers are void because they are in violation of Business Corporation Law § 701 (see Gazda v Kolinski, 91 AD2d 860, 861 [1982], affd in part and appeal dismissed in part 64 NY2d 1100 [1985]; see generally McQuade v Stoneham, 263 NY 323, 328-330 [1934], rearg denied 264 NY 460 [1934]; Manson v Curtis, 223 NY 313, 320-324 [1918]). However, whether the illegal provisions actually restricted the board of directors and whether provisions of the agreements may survive the illegal provisions are “issue [s] of fact or at least . . . mixed issue[s] of fact and law” (Triggs v Triggs, 46 NY2d 305, 310 [1978], rearg denied 46 NY2d 940 [1979]). Contrary to defendants’ contention, the warrants to purchase stock are consideration for the letter agreements rather than separate, enforceable agreements. Thus, the court erred in granting defendants’ cross motion. In addition, the court abused its discretion in denying the cross motion of plaintiffs for leave to amend their reply to the counterclaims to include fraud in the inducement as an affirmative defense. The cross motion was made before any discovery was conducted, there was no inordinate delay in seeking such *1177relief, and there was no showing of prejudice to defendants (see CPLR 3025 [b]; Anderson v Nottingham. Vil. Homeowner’s Assn., Inc., 37 AD3d 1195 [2007]; Prote Contr. Co. v New York City School Constr. Auth. [Christopher Columbus H.S.], 248 AD2d 693, 695 [1998]). Present—Scudder, P.J., Martoche, Centra, Fahey and Pine, JJ.

Appeal from a decision and award of the Workmen’s Compensation Board. Decedent was employed as a truck driver; hut occasionally helped to load and unload the truck. The record sustains a finding that on April 23, 1954, following strenuous physical effort helping to load his truck, decedent collapsed and died, and that his death was caused by the physical effort. The main issue in the ease is whether there was an advance payment of compensation within section 28 of the Workmen’s Compensation Law which would avoid the statutory effect of a failure to file a claim. The board has found that the employer paid a part of the funeral bill and held the payment to be an advance payment of compensation to the widow claimant. It has been held that payment of a part of a funeral bill can constitute advance payment of compensation. (Burcia v. St. Joseph Lead Co., 283 App. Div. 1124, motion for leave to appeal denied 307 N. Y. 943). The president and sole owner of the corporate employer told the widow that he would arrange to have the body shipped from Rochester where death occurred to Jamestown where decedent lived. “I said to her * * * We have group insurance compensation if necessary ”. Following this conversation the president had the body shipped to Jamestown and paid $45, the cost of the transportation. Appellants seem to argue that this was done without knowledge “ of all the facts and circumstances surrounding the death ”. The officer knew, however, that decedent died while in Rochester in the service of the employer; he had received a telephone call from a customer; and his statement to the widow in connection with payment of transportation of the body that “we have” compensation insurance suggests strongly a knowledge that the death occurred in the course of .employment. It is also argued that the officer paid the bill personally; but he testified he is the “sole owner” of the corporation. To find the employer made such payment is well within the record of the ease. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

The State appeals from an order of the Court of Claims denying its motion to dismiss a claim, or at least a part of it, on the ground of res judicata. The claim alleges personal injuries sustained by claimant, a passenger in a car driven by one Murray on a State highway, *685when it struck a Long Island Lighting Company pole. The negligence alleged against the State is: “Negligence in failing to remove a dangerous lighting pole #1174 of Long Island Lighting Co., on Route 25A, near the intersection of Old Northport Road; negligent maintenance of said Route 25A; failure to remove a nuisance namely afore-mentioned pole; failure to close a dangerous highway to traffic; negligence in failing to straighten a dangerous ‘ S ’ curve near said pole and negligence in other respects.” Claimant had previously brought a Supreme Court action against the Lighting Company and the owner and driver of the car in which he was riding. The complaint in that action charged, in substance, the Lighting Company with negligence in placing the pole in dangerous proximity to the roadway, failure to remove the pole after notice of its dangerous location, and maintaining the pole. Judgment was rendered in favor of the Lighting Company against claimant. The State was not, and could not be, a party to the Supreme Court action, although claimant contends that the defendants in that action and the State were all joint tortfeasors. The fact that the State was not a party or that there may be an absence of privity between the State and the Lighting Company is not decisive of a defense of res judicata. (Israel v. Wood Dolson Co., 1 N Y 2d 116.) The Court of Claims denied the motion, however, on the ground that it could not be ascertained from the pleadings that identity of issues existed. The Israel case expressly recognized at page 120 that identity of issues is the test of the applicability of res judicata. The State concedes that claimant is entitled to a trial of the issues raised by the allegations of negligent construction and maintenance of the highway. These allegations relate the location of the pole to the alleged dangerous curve and link the construction and maintenance of the highway to the location of the pole in a manner which makes it impossible to determine from the pleadings alone that the issues in the Court of Claims are identical with those in the Supreme Court action. It may well be that upon the trial it will develop that some of the issues are identical, and in such case we do not intend to indicate that the defense of res judicata is not available as to such issues. Order unanimously affirmed, with $10 costs.

Appeal from an order and judgment (one paper) of the Supreme Court, Onondaga County (Anthony J. Paris, J.), *1178entered April 25, 2006. The order and judgment, among other things, granted the motion of defendants Wyeth, Inc., formerly known as American Home Products Corporation, and Wyeth Pharmaceuticals, formerly known as Wyeth-Ayerst Pharmaceuticals, Inc., for summary judgment dismissing the second amended complaint against them. It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained as a result of taking certain prescription drugs manufactured by Wyeth, Inc. and Wyeth Pharmaceuticals (defendants). Plaintiff asserted causes of action for, inter alia, misrepresentation and failure to warn. Supreme Court properly granted the motion of defendants for summary judgment dismissing the second amended complaint against them. The duty of a manufacturer to warn of the potential adverse effects of its prescription drugs is fulfilled by providing adequate warnings to the prescribing physician, who acts as an “ ‘informed intermediary’ ” between the manufacturer and the patient (Glucksman v Halsey Drug Co., 160 AD2d 305, 307 [1990]). Defendants met their burden by establishing that the warnings provided with the drugs taken by plaintiff were adequate as a matter of law, i.e., they portrayed with “sufficient intensity” the risks involved in taking the drugs (Martin v Hacker, 83 NY2d 1, 10 [1993]), and the conclusory opinion of plaintiffs expert was insufficient to raise an issue of fact (see generally Cataract Metal Finishing, Inc. v City of Niagara Falls, 31 AD3d 1129, 1130 [2006]). Present—Scudder, PJ., Martoche, Centra, Fahey and Pine, JJ.

199.) Claimants appeal from a judgment of the Court of Claims which dismissed their claims following a trial. Prior to July 6, 1953, the State of New York entered into a contract with the Torrington Construction Company for the widening and resurfacing of Route No. 9 from the Plattsburgh city line some distance south. In the course of such work the construction company made a cut in Route No. 9, 20 feet wide and 20 feet long, for the purpose of installing a new culvert and which was thereafter refilled and covered over with gravel. This was the scene of the accident. Near the city line and approximately 1,600 feet north of the accident a large construction sign had been placed by the contractor and the State which warned of danger, the road being under construction for approximately seven miles and somewhat nearer to the cut in the road above mentioned, a smaller sign had been placed near the edge of the road for southbound traffic warning of a bump ahead. The claimants husband and wife, driver and passenger, were returning from Canada on July 6, 1953, traveling southerly on Route No. 9 on a rainy day with wet pavement. The driver testified he did not see the large construction sign but admitted seeing the smaller “ bump ahead ” sign prior to the accident and that he saw that part of the road which had been filled with gravel and slowed down. In a statement he gave shortly after the accident he stated it was due to skidding as the result of slowing down but at the trial in the Court of Claims he testified that when he was traveling over the gravel he struck a hole in the road which caused him to lose control of his car with the *686resultant accident. While he made no measurements, he testified from his observation that the drop or the hole in the pavement was from six to eight inches in depth. The hole in the road was not discernible, he stated, because it was filled with water. Another witness for the claimants gave a similar estimate of a depression at the scene of the accident. The State produced the Deputy Sheriffs of the County of Clinton who had investigated the accident and who testified to traveling over the area in question on three or four occasions immediately following the accident and the most that they experienced was a “ slight bump One of these witnesses contradicted the testimony of the claimant by saying there was no side road between the large sign at the city limits and the place of the accident. The claimant had previously testified that he had entered Route No. 9 from a side road and thus not observed the large sign. There were exhibits offered by both parties which showed the general situation as it existed at or near the time of the happening of the accident and there was a motor vehicle report made by the claimant, the driver, which statements were inconsistent with his testimony given at the time of the trial. The questions of negligence of the various parties and the credibility of the witnesses with which the court dealt at some length were factual issues. We cannot say that the Court of Claims erred in finding that the highway condition at the scene of the accident was not the proximate cause thereof and that the State did not fail in its duty to provide a highway that was reasonably safe under the circumstances. The claimants have failed to meet the required burden of proof. In view of our decision, it is not necessary to consider the further defense of res judicata interposed by the State resulting from verdicts of no cause of action against the claimants herein and in favor of the contractor, Torrington Construction Company, at a trial in the Supreme Court of Kings County. Judgment unanimously affirmed, without costs. [18 Misc 2d 371.]

Petitioner appeals from an order of the Supreme Court which dismissed the- petition in a proceeding under article 78 of the Civil Practice Act. Petitioner sought an order directing that service of a sentence for a second felony conviction begin as of the date of imposition thereof. On January 28, 1946 petitioner was convicted of robbery, second degree, and sentenced to a term of 5 to 10 years. On June 7,1950 he was released on parole, owing 4 years, 11 months and 4 days on his maximum sentence. On June 6, 1951, while on parole, he was convicted of a second felony (robbery, second degree, while armed), and sentenced as a second felony offender for a term of 7% years minimum and 15 years maximum, and an additional sentence of 5 to 10 years under section 1944 of the Penal Law, or a total sentence of 12 years, 6 months minimum and 25 years maximum. Peti*687tioner, having been convicted of a felony while on parole, was compelled to serve the balance of his maximum term under the 1946 sentence, amounting to 4 years, 11 months and 4 days from the time of his release on parole on June 7, 1950. (Correction Law, §§ 219, 242.) Thus his maximum sentence on the 1946 conviction did not expire until May 19, 1956, and service on his sentence on the 1951 conviction did not start until that date. (Penal Law, § 2190, subd. 2.) Petitioner relies upon chapter 473 of the Laws of 1960, effective July 1, 1960, which, in effect, gave discretion to the Parole Board in respect to the service of delinquent time (which had theretofore been mandatory) where a person on parole is convicted of a second felony. However, chapter 473, by its express terms is not retroactive, providing, in part, that the act “ shall not apply to prisoners who upon the effective date of this act have completed service of such delinquent time ”. Such is petitioner’s status. Order unanimously affirmed, without costs.

Appeal from a decree of the Surrogate’s Court of Ulster County authorizing the sale of certain trust realty and settling the intermediate account of the trustee. The trust corpus consists of decedent’s apple farm with its improvements and equipment. Decedent’s direction and intent that this business be continued and be managed by petitioner trustee, who was his grandson and whose life measures the duration of the trust, are clear beyond cavil. It seems to be undisputed that the will permits no sale or other disposition of the business. To the difficulties inherent in this situation are added the burdensome complications, risks and large expense of this type of fruit farming. The cost of raising, harvesting and marketing the annual crop upon this 118-acre farm is close to $500 per acre; the weather factor may on occasion be ruinous; conditions of market and competition also involve risk and require large expenditures for storage; and the preservation of the capital investment requires periodic renewal of orchards so that there will always exist a substantial percentage of young trees. Appellants, who are among the income beneficiaries, object generally to the trustee’s practice in setting up from trust income a reserve for depreciation; and specifically to expenditures from that reserve for capital improvements — principally a cold storage plant and a migrant labor camp — to the extent that the cost could not be met by the trust corpus. That the camp facility was required by law is undisputed. The expert testimony as to the necessity, under modern marketing conditions, of cold storage space and as to the “ very good managing practice ” which impelled the construction of this, as well as the evidence of the necessity of large working capital, were in no way contradicted. It is evident, therefore, that this is not the usual quarrel between income and remainder interests. Indeed, the conclusion is inescapable that the questioned expenditures from the only funds existent were necessary not only to the preservation of the trust corpus but to the production of income — perhaps of any future net income at all. That the effectuation of testator’s intent mandated the trustee’s actions now complained of is no less manifest. The Surrogate was correct, in these peculiar circumstances at least, in approving these expenditures as against appellants’ objections. (Cf. Matter of City Bank Farmers Trust Co. [Clarke], 306 N. Y. 733; Matter of Jones, 103 N. Y. 621.) Our holding is not to be construed as having effect beyond the specific items challenged; and we do not attempt, upon this incomplete record and within the scope of the issues in this interim accounting, either to define or approve a course of conduct or an acceptable accounting practice in future or to close *688the door to a subsequent allocation which at this time could be no more than academic. To the extent that appellants, or any of them, may be free to question the computation of commissions previously awarded, the source and allocation of the questioned expenditures and other subjects of the prior accountings, there would seem to be no compelling necessity for remitting this intermediate accounting for a binding determination thereof and thus imposing upon the parties and the estate the burden of additional litigation at this time. There is no suggestion that any such rights remaining to appellants will be prejudiced by deferment of their exercise until a subsequent accounting or the final judicial settlement. The Surrogate erred in approving the proposed sale by the trustee of a small lot of land with a dwelling house thereon. The trustee possesses unrestricted power of sale under the will and the sale could have been, and still may be, effected without application to the court. The expert witnesses who testified to value did not give effect to the increased value of the property attributable to the improvements made by the proposed purchaser during his occupancy, apparently without a contract of sale. Whatever equities may exist cannot be adjusted in this proceeding or upon this record. Appellants’ additional contentions do not appear to us to require discussion. Decree modified so as to delete the provision thereof authorizing the sale of certain realty; so as to provide that the application for approval of such sale be denied, without prejudice; and so as to provide that such decree be without prejudice to the objections of any party not bound by any prior decree or decrees to any account previously filed; and, as so modified, affirmed, with costs to all parties filing briefs payable from the estate.

The State appeals from a judgment of the Court of Claims awarding damages for a change of grade of a street situated in the City of Yonkers and abutting the property of the claimant. Central Park Avenue in the City of Yonkers was a 100 foot-wide highway and a main artery for vehicular traffic between New York City and White Plains. It was originally built at an established grade which had remained in status quo until the advent of the Thruway. The claimant’s property, none of which was appropriated for the project, was bounded on the east by Central Park Avenue and on the property were ten apartment buildings, four garages and a building with four stores. The property and the avenue were on approximately the same grade level. The New York State Thruway was constructed through Central Park Avenue and in front of claimant’s property. The appropriated part of the street was elevated 6% feet-11 feet above the former grade level. In the remaining part of the avenue on each side of the Thruway there were constructed service roads, the one in front of the claimant’s property being known as Central Park Avenue South. The claim was for damages to the property as a result of the change of grade for Thruway construction. The State contends that the law and the facts do not warrant a finding of liability against the State and further that any diminution of value was not due to a change of grade but diversion of traffic and incoa*689venience of access. There was substantial evidence in the record to sustain the finding of the court that a change of grade diminished the value of the claimant’s property. The quantum of the award is not contested and in any event is warranted from the proof presented. As to the law, the State relies mainly upon subdivision 14 of section 347 of the Highway Law which fixes the liability of the State for any damages caused -by Thruway construction. That part of the section claimed to be pertinent here reads as follows: “ If the work of constructing, reconstructing and maintaining such state thruways and bridges thereon causes damage to property not acquired as above provided, the state shall be liable therefor, but this provision shall not be deemed to create any liability not already existing by statute” (emphasis supplied). It is well-established law that a change of grade in a highway may be made by public authorities without liability to adjacent property owners unless there is a statutory provision for an award of damages. (Raymond v. State of New York, 4 A D 2d 62, affd. 4 N Y 2d 961.) Section 99' of the Second Class Cities Law, the City of Yonkers being in such category, provides that the grade of a street having been legally established, if thereafter changed, requires the payment of compensation for damages done. It is apparent from this section that if the City of Yonkers had performed the work, it would have been liable in damages to the claimant but the claimant never had a legal claim against the city, admittedly the work which caused the change of grade was done under the direction and supervision of the State of New York. The court below found that under the provisions of the Highway Law it was sufficient that the City of Yonkers would have been liable had it caused the change of grade and that the claimant need not actually have a claim against the city. The State having caused the change of grade, it assumed liability. It was not the intendment of the law to absolve the State from liability under such circumstances. Counihan v. State of New York (18 Misc 2d 514, 518) involved the identical situation with reference to the Highway Law and the City of Yonkers and there an award was sustained in favor of the claimant. Askey & Hager v. State of New York (240 App. Div. 451, affd. 266 N. Y. 587) and relied upon by the State, is not controlling as in that case it was determined that the claimant had a pre-existing claim against the City of, Buffalo and further the wording of the statute which controlled was different than in the present case. Appellant further contends that in any event the damages were not the result of the change of grade but as the result of a diversion of traffic and inconvenience of access. While all of these factors are closely correlated, there was proof in the record from which the court could find that it was the change of grade which caused the diminution in the value of the property and under such circumstances we cannot say such a finding was error. Judgment unanimously affirmed, with costs. [20 Misc 2d 33.]

Appeal from a judgment of the Steuben County Court (Peter C. Bradstreet, J.), rendered October 3, 2005. The judgment convicted defendant, upon his plea of guilty, of burglary in the third degree and unauthorized use of a vehicle in the first degree. It is hereby ordered that the judgment so appealed from be and the same hereby is modified on the law by directing that the sentence imposed for unauthorized use of a vehicle in the first degree shall run concurrently with the sentence imposed for burglary in the third degree and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the third degree *1179(Penal Law § 140.20) and unauthorized use of a vehicle in the first degree (§ 165.08). Defendant contends that the plea with respect to the offense of unauthorized use of a vehicle in the first degree was not knowingly or voluntarily entered because he was unaware of all of the elements of that offense. Defendant failed to move to withdraw the plea or to vacate the judgment of conviction on that ground and therefore has failed to preserve his contention for our review (see People v Brown, 305 AD2d 1068, 1068-1069 [2003], lv denied 100 NY2d 579 [2003]). The plea allocution does not “clearly cast[ ] significant doubt upon the defendant’s guilt or otherwise call[ ] into question the voluntariness of the plea,” and thus defendant’s contention does not fall within the rare case exception to the preservation doctrine (People v Lopez, 71 NY2d 662, 666 [1988]; see People v Farnsworth, 32 AD3d 1176 [2006], lv denied 7 NY3d 867 [2006]; People v Oltz, 1 AD3d 934 [2003], lv denied 1 NY3d 632 [2004]). We agree with defendant, however, that County Court erred in directing that the sentence imposed for unauthorized use of a vehicle in the first degree shall run consecutively to the sentence imposed for burglary in the third degree (see People v Smith, 269 AD2d 778 [2000], lv denied 95 NY2d 804 [2000]; People v McDaniel, 161 AD2d 1125 [1990], lv denied 76 NY2d 861 [1990]). We therefore modify the judgment accordingly. All concur except Scudder, EJ., and Green, J., who dissent in part and vote to affirm in the following memorandum.

Scudder, EJ, and Green, J. (dissenting in part). We respectfully dissent in part. We do not agree with the majority decision that the sentence imposed for unauthorized use of a vehicle in the first degree (Penal Law § 165.08) must run concurrently with the sentence imposed for burglary in the third degree (§ 140.20), and we therefore would affirm. In our view, County Court properly imposed a consecutive sentence in this case. Pursuant to the two prongs set forth in Penal Law § 70.25 (2), the court is required to impose concurrent sentences where a single act constitutes two different offenses, or a single act constitutes both one of the offenses charged and a material element of the other (see People v Parks, 95 NY2d 811, 814-815 [2000]; People v Laureano, 87 NY2d 640, 643 [1996]). Where separate acts are committed in the course of a criminal transaction, or where one act does not constitute a material element of a charged crime, the court may, in its discretion, impose consecutive sentences (see People v Bryant, 92 NY2d 216, 231 [1998]; People v Brown, 80 NY2d 361, 364 [1992]). Whether a court has the discretion to impose consecutive sentences thus depends on an analysis of the statutory definition of the actus reus for each *1180offense (see Laureano, 87 NY2d at 643; People v Day, 73 NY2d 208, 211 [1989]). In this case, defendant was convicted of the crimes of burglary in the third degree and unauthorized use of a vehicle in the first degree. The burglary conviction related to conduct occurring during the early morning hours of January 9, 2004, when defendant entered Jeffs Clubhouse at 80 River Street in the City of Hornell with the intent to steal money. The actus reus for that crime was defendant’s unlawful entry into the premises. The unauthorized use of a vehicle conviction related to conduct occurring after the burglary, when defendant took a vehicle from Southern Tier Collision Shop located on Horton Street in the City of Hornell to use it to escape from the scene of the burglary. The actus reus for the crime of unauthorized use of a vehicle was the taking of the vehicle. While these two crimes were related, they were not the result of a single act. The burglary of Jeff’s Clubhouse was completed before defendant took the vehicle from the Southern Tier Collision Shop (see People v Yong Yun Lee, 92 NY2d 987, 989 [1998]); indeed, the burglary was completed before defendant formed the intent to take the vehicle. Because the two crimes involved two different actus rei, the first prong of Penal Law § 70.25 (2) does not apply here. Nor is the second prong of Penal Law § 70.25 (2) applicable. The elements of the crime of burglary in the third degree as it relates to this case are (1) that the defendant entered a building unlawfully; (2) that the defendant did so knowingly; and (3) that the defendant did so with the intent to commit a crime inside the building (see § 140.20). The elements of the crime of unauthorized use of a vehicle in the first degree are (1) that the defendant took, operated, exercised control over, rode in, or otherwise used a vehicle without the owner’s consent; (2) that he or she knew that he or she did not have the owner’s consent; and (3) that he or she did so with the intent to use the vehicle in the course of, commission of, or immediate flight from a class A, B, C or D felony (see § 165.08). Thus, neither of those crimes requires proof of the commission of the other. The majority interprets the third element of Penal Law § 165.08 to include the actual commission of the designated crime, here, burglary in the third degree, because of the statute’s reference to the use of the vehicle in the course of, commission of, or immediate flight from a class A, B, C or D felony. In our view, this interpretation of the statute adds an element to the crime of unauthorized use of a vehicle in the first degree that is not required by Penal Law § 165.08. The plain *1181language of the statute requires only that the defendant have the intent to use the vehicle in the course of, commission of, or immediate flight from a class A, B, C, or D felony. It does not state that the defendant must actually have committed such crime. Thus, where an individual takes a vehicle with the knowledge that he or she does not have the owner’s consent and with the intent to use it to commit a designated felony but the individual for some reason does not actually complete that felony, he or she has committed the crime of unauthorized use of a vehicle in the first degree. The individual’s intent to use the vehicle in such manner is all that is required. Indeed, the Committee on Criminal Jury Instructions has explicitly recognized that distinction. The CJI2d jury instruction for unauthorized use of a vehicle in the first degree lists as an element of the crime the defendant’s intent to use the vehicle in the course of or commission of a class A, B, C or D felony, or the immediate flight therefrom, not the defendant’s commission of a class A, B, C or D felony (see CJI2d[NY] Penal Law § 165.08). The majority relies on our decisions in People v McDaniel (161 AD2d 1125 [1990], lv denied 76 NY2d 861 [1990]) and People v Smith (269 AD2d 778 [2000], lv denied 95 NY2d 804 [2000]) to support their conclusion that the completed burglary was a material element of the crime for Penal Law § 70.25 (2) purposes. We note, however, that McDaniel was decided prior to the decision in Laureano (87 NY2d 640 [1996]), which clarified the appropriate analysis for determining whether Penal Law § 70.25 (2) requires concurrent sentencing. In addition, the internal records of this Court, of which we take notice (see Matter of Rapoport v Koenig, 237 AD2d 820 [1997]), establish that in McDaniel the People conceded that concurrent sentences were required, and in Smith the concession of the People with respect to this issue was, according to their brief on appeal, based on McDaniel. We therefore would affirm the judgment of conviction without modification of the sentence imposed. Present—Scudder, RJ., Gorski, Centra, Green and Pine, JJ.

*1182Appeal from an order of the Family Court, Monroe County (Gail A. Donofrio, J.), entered December 22, 2005 in a proceeding pursuant to Family Court Act article 4. The order denied petitioner’s objections to the order of the Support Magistrate entered November 2, 2005. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Family Court properly denied the objections of petitioner to the order of the Support Magistrate dismissing his petition seeking a downward modification of his child support obligation and granting that part of respondent’s cross petition seeking judgment for child support arrears. The parties’ separation/opting out agreement (Agreement), which was incorporated but not merged into the divorce judgment, establishes the amount of petitioner’s child support payments and provides that “[tjhere shall be no downward modification of the child support payments set forth in this Agreement so long as [petitioner’s] income during the particular year in question is One Hundred Forty Thousand Dollars ($140,000.00) or more.” The Support Magistrate properly concluded that petitioner did not meet his burden of establishing that his income fell below $140,000 during the years following his prior petition seeking a downward modification of his child support obligation. The Support Magistrate was not bound by the account provided by petitioner of his own finances (see Matter of Dukes v White, 295 AD2d 899, 900 [2002]; Mellen v Mellen, 260 AD2d 609 [1999]). Further, contrary to the contention of petitioner, the Support Magistrate properly utilized the definition of “income” in the Child Support Standards Act (Family Ct Act § 413 [1] [b] [5]), absent a more restrictive definition set forth in the Agreement (cf. Matter of Kirdahy v Scalia, 301 AD2d 525, 526 [2003]). The Support Magistrate was therefore entitled to impute income to petitioner from sources other than his business, including non-income producing assets (see Family Ct Act § 413 [1] [b] [5] [iv] [A]; see also Matter of Freedman v Horike, 26 AD3d 680, 682 [2006]), as well as substantial gifts provided to petitioner by his parents (see Family Ct Act § 413 [1] [b] [5] [iv] [D]; Matter of Abellard v Aime, 18 AD3d 653 [2005]; Mellen, 260 AD2d at 610). The challenge by petitioner to that part of the Support Magistrate’s order granting in part respondent’s cross petition, raised for the first time in his reply brief, is not properly before us (see Wirth v ELO, Inc., 21 AD3d 1346, 1348 [2005]). We have considered petitioner’s remaining contentions and conclude that none requires modification or *1183reversal of the order. Present—Scudder, EJ., Gorski, Centra, Green and Pine, JJ.

The employer and carrier appeal from an award of disability compensation. Appellants contend that the evidence fails to establish an employer-employee relationship, and further, that there was a failure to give written notice in compliance with section 18 of the Workmen’s Compensation Law. Claimant had previously been duly registered and licensed as a practical nurse, and had been employed by Mercy General Hospital, the alleged employer herein, in that capacity from time to time over a period of several years. Because of illness claimant ceased working in 1950 and did not apply for her biennial registration as a practical nurse for the period September 1, 1954 to August 31, 1956. Subsequent to the expiration of her registration certificate in August of 1954, claimant applied to the hospital’s director of nurses and assistant administrator for employment at the hospital as a practical nurse. It was arranged *690that she should work as an unpaid volunteer for 10 days to brush up on her nursing, and it was the intention of the hospital to employ her if her work during this period proved satisfactory and she obtained a renewal of her registration. Thereafter, and before she became again registered, the hospital called claimant to come to work at the hospital as an attendant for a patient by the name of Bremer. She was informed by the hospital that she would not receive a nurse’s pay since she was not currently registered as a practical nurse, but would receive an attendant’s pay of $8 per night for sitting with and earing for Mr. Bremer. Mr. Bremer had suffered a stroke while en route with his son from Buffalo to Saranac Lake, and as a result became a patient at the Mercy General Hospital, the alleged employer, located at Tupper Lake, New York. The patient’s mental faculties were affected by the stroke, and it became necessary and desirable that someone be in attendance at all times when members of his family could not be present. The patient’s son asked the hospital to get some person as an attendant for his father, particularly for the hours from midnight to 8:00 a.m. The hospital called claimant and, at the request of the hospital, she came to the hospital and was instructed by the hospital to act as an attendant for Mr. Bremer on the night of November 24, 1954. At that time claimant was unacquainted with Bremer or any of his family, and had had no conversations or contact with any of them. During the night while she was attempting to quiet the patient he grabbed her hand with such force that she sustained an injury for which the award was made. While the hospital paid claimant for her services, Bremer’s son reimbursed the hospital. Not only did the hospital call claimant to come to work, but the work was performed upon the hospital premises with no person to give claimant instructions except hospital employees. The arrangement for pay was made by the hospital, and claimant was injured while performing the duties which had been assigned to her by the hospital. Under such circumstances the ultimate source of her remuneration is not solely controlling, and the board was not required to find that the hospital acted only as the agent of Mr. Bremer’s son. A question of fact was presented to the board and the evidence is adequate to sustain its finding that claimant was an employee of the hospital. (Matter of Meyer v. North Hills Golf Club, 238 App. Div. 752; Matter of Eastman v. Cottman, 7 A D 2d 794.) The board in its memorandum decision stated: “ that proper notice thereof was given to her employer ”. Since there is no evidence of a written notice within 30 days in the record, the appellants contend that this conclusion in the board’s decision is erroneous and requires reversal. Respondent contends, among other things, that the lack of written notice was not raised by appellants in their application for review, and that the board was not required to make any finding on the subject. Section 23 of the Workmen’s Compensation Law, as amended by chapter 974 of the Laws of 1958, provides, in part: “ the board shall make its decision upon such application in writing and shall include in such decision a statement of the facts which formed the basis of its action on the issues raised before it on such application.” This would seem to require the board to include in its decision only issues “raised” in a written application for a review. However, the determination of this appeal need not rest upon such a narrow ground. Here it is without dispute that claimant gave notice of the accident and injury to the hospital employer the morning following the accident. There can be no prejudice to the employer, and the law authorizes the board to excuse the failure of written notice under such circumstances. The board’s use of the word “proper” in reference to the notice given was perhaps an unfortunate choice of a a word, but under the circumstances here it could readily be construed that the board meant that the oral notice was adequate because written notice was excused. No purpose would be gained by remittal for a more *691appropriately phrased finding when the record is ample to permit the board to excuse a written notice. Award unanimously affirmed, with one bill of costs to be divided between claimant and the Workmen’s Compensation Board.

Plaintiff appeals from an order of the Supreme Court which dismissed the first cause of action in an amended complaint on the ground of insufficiency. The defendant manufactures a dust vaccine for the immunization of chickens against two specific diseases. Plaintiff alleges that he purchased some of this dust vaccine from a retailer, who had purchased it from a supplier, who had in turn purchased it from the defendant. It is alleged that plaintiff relied upon national advertising and pamphlets promulgated by the defendant which contained certain warranties about the product which were not true, and that plaintiff sustained damage as a result of his use of the product. The dismissed cause of action is clearly for breach of warranty. It is undisputed that there was no privity of contract between plaintiff and defendant, and the court at Special Term granted the motion to dismiss on that ground. It is clearly established as the law of this State that an action for breach of warranty, express or implied, does not lie in the absence of a contractual relationship. (Chysky v. Drake Bros. Co., 235 N. Y. 468; Turner v. Edison Stor. Battery Co., 248 N. Y. 73.) Plaintiff does not seem to question that such is the law in the State of New York, but cites a growing number of jurisdictions which have relaxed the requirement of privity of contract and infers that the New York *692rule should be changed. Even if such a course were desirable it is not within the province of this court to change existing law or to make a determination contrary to binding precedents. Order unanimously affirmed, with $10 costs.

Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered January 30, 2006. The order granted defendants’ motions to dismiss the supplemental amended complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying in part the motion of defendants Jodi M. Gburek and Christopher A. Gburek and reinstating the libel cause of action against them and as modified the order is affirmed without costs. Memorandum: Plaintiffs commenced this action to recover damages for libel based on allegedly false statements concerning them in a letter prepared by defendant James A. Brigante, CSW-R, a certified social worker, and reviewed by defendant Maria T. Cartagena, M.D., a psychiatrist, before its publications. The letter was first published when it was sent to the attorney for defendants Jodi M. Gburek and Christopher A. Gburek at their request, prior to the commencement of any legal proceeding, and it was published a second time when it was included as an exhibit in papers submitted in connection with a Family Court proceeding in which plaintiff Josephine A. Parlato, Jodi’s mother, sought visitation with Jodi’s son. Plaintiff Lucian C. Parlato is the stepgrandfather of Jodi’s son, and Christopher Gburek is Jodi’s husband and the stepfather of Jodi’s son. The letter sets forth the history of Jodi’s childhood and states that Jodi was the source of the information contained therein. According to the letter, Jodi was sexually, verbally and physically abused by plaintiffs, resulting in major depression, anxiety and posttraumatic stress syndrome. *1184Supreme Court properly granted the motions of the social worker and the psychiatrist seeking dismissal of the “Supplemental/Amended” complaint against them for failure to state a cause of action (see CPLR 3211 [a] [7]). [T]he allegedly defamatory statements are nonactionable, since they are contained in [the letter] concerning plaintiffs’] psychological and emotional problems that were prepared by ... an expert witness in a judicial proceeding involving . . . visitation in which plaintiffs’] mental condition was pertinent” (Braverman v Halpern, 259 AD2d 306, 306 [1999]; see generally Finkelstein v Bodek, 131 AD2d 337 [1987], lv denied 70 NY2d 612 [1987]). We agree with plaintiffs, however, that the court erred in granting that part of the motion of Jodi and Christopher seeking dismissal of the libel cause of action against them for failure to state a cause of action, and we therefore modify the order accordingly. The libel cause of action may be construed to state a cause of action upon which relief may be granted, i.e., that Jodi and Christopher published statements concerning plaintiffs that were outrageous [ ] . . . [and] motivated by no other desire than to defame” plaintiffs, both with respect to the letter to their attorney and in the Family Court proceeding (Martirano v Frost, 25 NY2d 505, 508 [1969]; see People ex rel. Bensky v Warden of City Prison, 258 NY 55, 59 [1932]). Present—Scudder, EJ., Gorski, Centra, Green and Pine, JJ.

Plaintiff appeals from an order of the Supreme Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment and dismissed the complaint, and from the judgment entered thereon. The Travelers Insurance Company issued to Dorothy Stickles and Bernard Stickles, doing business as Woodside Convalescent Home, a standard liability insurance policy covering premises at 53 Market Street, Ellenville, New York. Plaintiff alleges that she was injured while a resident patient on the premises by a fall from her bed. She alleges the fall was due to the negligence of the named insureds in failing to properly place or adjust the sideboards of plaintiff’s bed to protect her from falling. Defendants contend that -the policy did not cover the accident. The only question presented on this appeal is one of policy coverage. The policy insured Bernard and Dorothy Stickles, tenants, and the owner of the premises against liability for damages arising from their negligence in “ The ownership, maintenance or use of the premises, and all operations necessary or incidental thereto.” No defect in the premises or negligence in the maintenance of the premises is alleged. The only negligence alleged is in connection with the operation of an article of personal property located thereon. It seems doubtful if such negligence comes within the main coverage of the policy, but it is perhaps arguable that a factual question is presented in the interpretation of the language. However, the policy contained an exclusion indorsement in effect at the time of the alleged accident, which read, in part: “ Exclusion of Malpractice and Professional Services. As respects any classification stated below or designated in the policy as subject to this endorsement, the policy does not apply to injury, sickness, disease, death or destruction due to 1. the rendering or failure to render (a) medical, surgical, dental, x-ray or nursing service or treatment, or the furnishing of food or beverages in connection therewith; (b) any service or treatment conducive to health or of a professional nature ”. Clearly the alleged negligence in connection with the placing, raising or adjustment of sideboards on the bed of a patient in a nursing home constitutes “ nursing service ” and was expressly excluded from coverage. Order and judgment unanimously affirmed, without costs.

Appeal from an order of the Supreme Court, Onondaga County (Thomas J. Murphy, J.), entered March 1, 2006. The order granted defendant’s motion for summary judgment dismissing the amended complaint and denied plaintiffs cross motion for summary judgment. It is hereby ordered that the order so appealed from be and the same hereby is modified on the law by denying the motion *1185and reinstating the amended complaint and as modified the order is affirmed without costs. Memorandum: Plaintiff commenced this action seeking to collect the proceeds of a life insurance policy issued to her husband (decedent) by defendant. The policy was issued effective August 2, 2001, and was in effect on March 22, 2003 when decedent died from non-Hodgkins lymphoma. Supreme Court erred in granting defendant’s motion for summary judgment dismissing the amended complaint, and we therefore modify the order accordingly. In support of its motion, defendant asserted that decedent materially misrepresented the state of his health on the application for the life insurance policy by failing to disclose that his physician treated him for an enlarged lymph node in his neck and that the policy therefore was void from its inception (see generally Taradena v Nationwide Mut. Ins. Co., 239 AD2d 876, 877 [1997]). Contrary to the court’s determination, defendant failed to meet its burden of establishing as a matter of law that decedent misrepresented a material fact on the application for the life insurance policy (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence submitted by defendant in support of its motion established that decedent was not advised prior to the issuance of the policy that the enlarged lymph node was possibly malignant or that it was a serious medical condition. Indeed, according to the deposition testimony of decedent’s physician submitted by defendant in support of its motion, decedent’s physician believed that the condition was not malignant (see Fratello v Savings Banks Life Ins. Fund, 186 AD2d 1061 [1992]). In any event, even assuming, arguendo, that the failure to disclose the condition constituted a misrepresentation, we conclude that defendant failed to establish as a matter of law that the misrepresentation was material. “In order to prove that a misrepresentation is material as a matter of law, an insurer must submit evidence concerning its underwriting practices with respect to applicants with similar histories, establishing that it would have denied the application had it contained accurate information” (Iacovangelo v Allstate Life Ins. Co. of N.Y., 300 AD2d 1132, 1133 [2002]; see Insurance Law § 3105). Here, defendant failed to submit such evidence. The affidavit of defendant’s underwriting representative merely states that defendant would have “postponed” issuing the policy and awaited further tests had defendant known about decedent’s treatments, but the underwriting representative does not state that defendant would have denied the application (see Iacovangelo, 300 AD2d at 1133; Campese v National Grange Mut. Ins. Co., 259 AD2d 957, 958 [1999]). *1186All concur except Scudder, EJ., and Centra, J., who dissent in part and vote to affirm in the following memorandum.

Scudder, EJ, and Centra, J. (dissenting in part). We respectfully dissent in part and would affirm the order of Supreme Court that, inter alia, granted the motion of defendant for summary judgment dismissing the amended complaint. In our view, defendant met its burden of establishing as a matter of law that decedent misrepresented a material fact on his application for his life insurance policy (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “An insured cannot remain silent while cognizant that his insurance application contains misleading or incorrect information” (North Atl. Life Ins. Co. of Am. v Katz, 163 AD2d 283, 284 [1990]). Where an applicant for a life insurance policy knows of a possible health problem prior to the issuance of the policy, he is under an obligation to inform the insurance company of that information (see Schmitt v North Am. Co. for Life & Health Ins. of N.Y., 30 AD3d 1007, 1009 [2006], lv denied 7 NY3d 712 [2006]; Meagher v Executive Life Ins. Co. of N.Y., 200 AD2d 720, 721 [1994]; North Atl. Life Ins. Co. of Am., 163 AD2d at 284-285; Angione v Rochester Sav. Bank, 41 AD2d 597 [1973]). Here, at the time the policy was issued to decedent on August 2, 2001, decedent had not informed defendant that he had attended five appointments with two physicians regarding his enlarged lymph nodes, that he underwent a needle biopsy, and that he was scheduled to have an excisional biopsy. Defendant submitted the affidavit of its underwriting representative who averred that, if defendant had known about the medical tests administered to decedent, defendant would have postponed issuing the policy until such time as the test results had been received and decedent’s condition had been fully evaluated and definitively diagnosed. The underwriting representative further averred that, because the tests ultimately resulted in a diagnosis of lymphoma, defendant would have rejected the application and would not have issued the policy. Fresent—Scudder, EJ., Gorski, Centra, Green and Fine, JJ.

The State appeals from an order of the Court of Claims which denied the State’s motion for an order dismissing two claims filed by the same claimant pursuant to rule 106 of the Rules of Civil Practice. One claim seeks to recover damages for alleged slanderous remarks made by an Assistant Attorney-General of the State to a newspaper reporter about and concerning claimant. The second claim alleges the same remarks to be libelous because the same Assistant Attorney-General caused or instigated their publication in a newspaper. 'Under article 8 of the General Corporation Law the Attorney-General is empowered to bring an action to annul the charter of a corporation on the ground that it has indulged in deceptive advertising practices which are detrimental to the public interest. He is given a preliminary subpoena power to aid him in determining whether or not to bring such an action against a corporation. In connection with such a preliminary investigation the Attorney-General has caused claimant’s books and records to be subpoenaed. Claimant obtained a show cause order staying the investigation pending a motion to vacate the subpoena. Prior to the return date of the show cause order the Assistant Attorney-General in charge of the investigation is alleged to have made the statements, which for the purposes of this motion must be assumed to be defamatory, to a newspaper reporter. The principal contention of the State is that the Assistant Attorney-General enjoys an absolute privilege which renders him, and hence the State, immune from suit for damages for a statement made within the scope of his official duties. That the question of extent of absolute privilege is a troublesome one is well demon*693strated by the divergent opinions in Barr v. Matteo (360 U. S. 564). While the majority of the Supreme Court held that absolute privilege extended to the head of a Federal agency who issued a press release, the decision was expressly limited to the unusual facts of that particular ease. The Court of Claims has held, we think correctly, that the words allegedly uttered by the Assistant Attorney-General were not uttered within the scope of his official duties. They were not uttered in court or addressed to any audience which could do anything about the matter. It is not alleged that the words were in the nature of an official report, or uttered pursuant to any duty of office, or that they were addressed to anyone empowered to receive them or act upon them. Hence the doctrine of absolute privilege or immunity does not apply. (Cheatum v. Wehle, 5 N Y 2d 585.) However, these actions are against the State, and the moment we conclude that it appears from the claims that the Assistant Attorney-General was not acting within the scope of his official duties, it follows that the State is not liable for his tort, and the Court of Claims is without jurisdiction. The State is not liable for the personal torts of its officers and employees committed outside of or beyond their official duties. Subdivision 2 of section 9 of the Court of Claims Act gives the court jurisdiction to determine claims against the State for only “ the torts of its officers or employees while acting as such officers or employees ”. Order reversed and the claims dismissed, without costs.

Appeal from a decision and award of the Workmen’s Compensation Board. 'Claimant’s right to an award of compensation as the widow of the decedent employee depends on the validity of a Mexican divorce obtained by the decedent against his first wife. This is not an attack upon the validity of the divorce by the first wife claiming compensation; it is an attack by the employer, and insurance carriers, strangers to the marital relation. After the Mexican court had granted the divorce, the decedent and this claimant married in Connecticut in a ceremonial marriage before a judicial officer. A presumption of regularity attaches to this marriage, and a party attacking it has the burden of proving its invalidity. No such proof was offered, by appellants in this case. They offered merely the judgment of the Mexican court. On its face this judgment recites the jurisdiction of the court; the manner in which it obtained jurisdiction; and the relief it granted. No proof suggestive of invalidity has been offered by the appellants. Under the usual rules of comity, judgments of foreign nations are recognized unless there is some defect of jurisdiction shown to be against the public policy of the domestic State. It is neither shown that the decedent was not a resident of Mexico when he sued his wife for divorce nor that his former wife was not a resident of Mexico at that time. The place of service of process on a party is certainly not controlling on his actual place of residence. Nor has it been shown that Connecticut did not recognize the divorce in allowing the marriage between the decedent and the claimant to be solemnized. No ground has been shown to defeat claimant’s rights. Award unanimously affirmed, with costs to the Workmen’s Compensation Board.

*1187Appeal from an order of the Supreme Court, Erie County (Joseph G. Makowski, J), entered March 27, 2006 in a personal injury action. The order granted the motion of defendants Kolpak, Inc., a division of KMT Refrigeration, Inc., KMT Refrigeration, Inc., a wholly owned subsidiary of the Manitowoc Food Service Companies, Inc., and Manitowoc Foodservice Companies, Inc., a subsidiary of the Manitowoc Company, Inc., to dismiss the amended complaint against them. It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the amended complaint against defendants Kolpak, Inc., a division of KMT Refrigeration, Inc., KMT Refrigeration, Inc., a wholly owned subsidiary of the Manitowoc Food Service Companies, Inc., and Manitowoc Foodservice Companies, Inc., a subsidiary of the Manitowoc Company, Inc., is reinstated. Memorandum: In this action seeking damages for injuries allegedly sustained by plaintiff in August 1998, plaintiff filed an amended summons and amended complaint on December 1, 2005, bearing index Number 2005-11047. Defendants Kolpak, Inc., a division of KMT Refrigeration, Inc. (Kolpak, Inc.), KMT Refrigeration, Inc., a wholly owned subsidiary of the Manitowoc Food Service Companies, Inc., and Manitowoc Foodservice Companies, Inc., a subsidiary of the Manitowoc Company, Inc. (collectively, Kolpak defendants) moved to dismiss the amended complaint against them as time-barred. In support of their motion, the Kolpak defendants contended that the failure of plaintiff to purchase an index number for her initial complaint rendered that complaint a nullity and that the amended complaint was filed after the statute of limitations expired. We conclude that Supreme Court erred in granting the motion. In August 1998, plaintiff allegedly sustained injuries when she slipped and fell in a walk-in freezer at her place of employment. Inasmuch as she was precluded by the Workers’ Compensation Law from commencing an action against her employer (see Workers’ Compensation Law §§ 11, 29), plaintiff filed a preaction order to show cause to, inter alia, inspect the freezer to ascertain the viability of litigation against third parties. That order to show cause was assigned index Number 2001-326. On August 14, 2001, plaintiff filed a summons and complaint *1188in the County Clerk’s Office against, inter alia, Kolpak, Inc. Plaintiffs attorney concedes that, ‘‘[t]hrough an office inadvertence, [his] staff placed index number 2001-326, the index number from the pre-suit discovery motion, on the summons and complaint.” Kolpak, Inc., answered the complaint and participated in the normal litigation process through 2005. In 2005, the attorney for the Kolpak defendants attempted to purchase a request for judicial intervention (RJI), but was informed that no index number had been purchased for the action. Thereafter, plaintiff filed the amended summons and complaint under the new index number. Contrary to the court’s conclusion, the summons and complaint were filed in the County Clerk’s Office. The Erie County Clerk’s Office’s official records public search form establishes that, on August 14, 2001, a summons and complaint were filed under index Number 2001-326. Furthermore, the summons and complaint bear a time stamp from the County Clerk’s Office. Plaintiff concedes that she failed to purchase a new index number for the summons and complaint, and we agree with the Kolpak defendants that such failure constitutes a defect in the compliance with the commencement-by-filing system (see Harris v Niagara Falls Bd. of Educ., 6 NY3d 155, 158 [2006]). That defect, however, “is waived absent a timely objection by the responding party” (id.). We agree with plaintiff that the Kolpak defendants waived the defect by participating in the litigation process for over four years without objecting to the defective filing (see e.g. Page v Marusich, 30 AD3d 871, 873 [2006]; Anonymous v Anonymous, 27 AD3d 356, 360-361 [2006]; Allianz Ins. Co. v City of New York, 19 AD3d 159, 160 [2005]). Although the Kolpak defendants did not become aware of the defect until their attorney attempted to purchase the RJI, they had an affirmative duty to ascertain whether the action against them had been properly commenced (see Matter of Fry v Village of Tarrytown, 89 NY2d 714, 722 n 6 [1997]) and failed to do so. The Court of Appeals has explicitly stated that “ ‘defendants and respondents are warned that if they want to capitalize on technicalities they must mind their own procedures’ ” (Harris, 6 NY3d at 159; see Matter of Ballard v HSBC Bank USA, 6 NY3d 658, 664-665 [2006]). Inasmuch as the Kolpak defendants waived the defective filing of the complaint, the claims asserted in the amended complaint revert back to the date of the filing of the complaint in 2001 and therefore are not barred by the statute of limitations (see CPLR 203 [f]). Present—Scudder, PJ., Gorski, Centra, Green and Pine, JJ.

Appeal from a judgment entered on a decision rendered after trial in the Court of Claims. The State appropriated for highway purposes .019 of an acre of claimant’s land on which billboards were erected. After appropriation it is established that claimant removed the billboards. Claimant’s proof was that before the taking his land was worth $9,400 and after it, $7,050, a difference of $2,350. The State’s proof was that before the taking the land was worth $4,500 and after, $4,000; and the $500 resulting differential was apportioned as being $200 for the land and $300 for consequential damage to the billboards which had to be reconstructed on the property. The Court of Claims was of opinion that “ The cost of removal [of the signs] would exceed *694the value of the improvement ” and found the value of the property before the taking was $15,400 and after, $11,900. The award was $3,500. We are unable to find justification for this sum in the record. Some evidence of cost of removal of the signs was offered; but it was theoretical and the actual cost from claimant’s books was not shown. In this state of the record the damage for the taking does not in our view exceed $500 as demonstrated in the State’s proof. Judgment modified on the law and the facts to reduce the award to $500, and as thus modified, affirmed.

Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered March 11, 2004. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (two counts) and a traffic infraction. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a weapon in the second degree (Penal Law § 265.03 [2]) and two counts of criminal possession of a weapon in the third degree (§ 265.02 [former (4)]). On March 28, 2002, defendant shot and killed another person during an altercation. On May 29, 2003, police stopped the vehicle driven by defendant for his failure to wear a seatbelt. The police officers then discovered that defendant’s registration was suspended and that the vehicle was uninsured. One of the officers thereafter obtained a handgun from defendant’s vehicle during an inventory search preceding the impoundment of the vehicle for the suspended registration. We reject the contention of defendant that Supreme Court erred in denying his motion, pursuant to CPL 270.10 (1), to dismiss the jury panel on the ground that it did not reflect a fair cross-section of the community. Defendant’s motion papers failed to set forth sufficient facts demonstrating a systematic exclusion of African-Americans from the jury pool (see People v McFadden, 244 AD2d 887, 889 [1997]; People v Grant, 226 AD2d 1092, 1093 [1996], lv denied 89 NY2d 864 [1996]). We reject the further contention of defendant that Penal Law § 265.15 (4) is unconstitutional and thus that his conviction of criminal possession of a weapon in the second degree must be reversed (see People v McKenzie, 67 NY2d 695, 696 [1986]). Nor is there merit to the contention of defendant that the statutory presumption of Penal Law § 265.15 (4) was unconstitutionally applied to him. Further, “[i]t does not follow that, because the actual use of the firearm by defendant might have been justified, he did not harbor the intent to use the firearm unlawfully prior to the shooting” (People v Horton, 216 AD2d 913 [1995], lv denied 87 NY2d 902 [1995]). *1190Defendant presented evidence after the court denied his motion to dismiss the indictment at the close of the People’s case and therefore waived his contention that the court erred in denying that motion (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]; People v Allen, 1 AD3d 947, 948 [2003], lv denied 1 NY3d 594 [2004]). By failing to renew his motion to dismiss the indictment at the close of proof, defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see Hines, 97 NY2d at 61; People v Adamus, 31 AD3d 1210 [2006]). Contrary to defendant’s contention, the verdict is not against the weight of the evidence. The jury was entitled to resolve credibility issues in favor of the People (see People v Walek, 28 AD3d 1246 [2006], lv denied 7 NY3d 764 [2006]), and it cannot be said that the jury failed to give the evidence the weight it should be accorded (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The court did not err in denying that part of the omnibus motion of defendant to suppress the handgun discovered in his vehicle during the inventory search (see People v Jackson, 16 AD3d 1022 [2005], lv denied 4 NY3d 854 [2005]). The court properly imposed a consecutive term of incarceration (see generally People v Okafore, 72 NY2d 81, 87 [1988]). Finally, the sentence is not unduly harsh or severe. Present—Hurlbutt, J.E, Martoche, Smith, Fahey and Peradotto, JJ.

The State appeals from two judgments of the Court of Claims resulting from an award of $4,000 to Dorothy Downs for personal injuries and $500 to her husband in a derivative action. Claimant, Dorothy Downs, went with her husband and children to the James Baird State Park, operated and maintained by the State, on August 14, 1956. A fee was paid for parking their ear and Dorothy Downs paid for the rental of a pair of roller skates furnished by the State and a State employee adjusted the skates and fitted them. It appears to be without dispute that, while claimant was skating on a rink maintained by the State, the entire front wheel assembly of one skate fell off, causing claimant to fall and sustain injuries. The Court of Claims has found that the State was negligent in failing to exercise reasonable care in the inspection, adjustment and fitting of the skates, and that the claimant was free from contributory negligence. The record presents clear questions of fact with ample evidence to support the findings of the Court of Claims. Appellant also claims that the award of $4,000 to Dorothy Downs is excessive. She sustained painful injuries of a nonpermanent nature, and a permanent injury to the fourth finger of the right hand which results in a deformity and affects the use of the hand. The assessment of damages by the trial court was reasonable and should not be disturbed on appeal. Judgments unanimously affirmed, with one bill of costs to respondents.

Appeal from a judgment (denominated order) of the Supreme Court, Allegany County (Thomas P. Brown, A.J.), entered December 15, 2004 in a declaratory judgment action. The judgment declared that plaintiff is required to defend and indemnify defendant Terri L. Ross, public administrator of the estate of Ross Miller, deceased, with respect to claims asserted by and on behalf of defendant Jeremy Mellin. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking, inter alia, a declaration that it is not obligated to defend or indemnify Ross Miller, who is now deceased, with respect to claims that have been or may be asserted by or on behalf of defendant Jeremy Mellin. The parties agreed that Supreme Court would resolve the issue as a matter of law, and the court subsequently declared that plaintiff is required to defend and indemnify Ross Miller with respect to claims asserted by and on behalf of MelHn. We affirm, but our reasoning differs from that of the court. Mellin, then age 16, was seriously injured while operating a corn chopper at a dairy farm owned by Miller. Plaintiff disclaimed coverage on the ground that the contract of liability insurance covering the farm and the residence on the farm excluded coverage for bodily injury to “any . . . person under the age of twenty-one in [the] care [of an insured] or in the care of [an insured’s] resident relatives.” At the time of the accident, Mellin’s mother, defendant Donna Pierce, was the domestic partner of Miller and resided with her children at Miller’s home, but Miller is not Mellin’s biological father. Mellin established that he occasionally helped out on the farm but that he was not subject to Miller’s discipline. He further established that Miller did not have an active role in his life and that Miller rarely assumed responsibility for him. Miller did not claim Mellin’s mother or Mellin as a dependent, and he requested that Mellin and his mother move out of the residence almost immediately after Mellin was released from the hospital following the accident. It is well established that, “whenever an insurer wishes to exclude certain coverage from its policy obligations, it must do so ‘in clear and unmistakable’ language,” and such exclusions are to be narrowly construed (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984]). “Indeed, before an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case . . . , and that they are subject to no other reasonable interpretation” (id.). Here, the court erred in determining that the exclusionary language was ambiguous (see Qiu v Livingston Mut. Ins. Co., 305 AD2d 1104, 1105 [2003]; Utica Fire Ins. Co. of Oneida County v Gozdziak, 198 AD2d 775 [1993], appeal dismissed 84 NY2d 821 [1994], mot to vacate order of dismissal denied 84 NY2d 848 [1994], rearg denied 84 NY2d 978 [1994]). Nevertheless, we conclude that Mellin was not “in the care of’ Miller within the meaning of the policy and thus that the court properly declared that plaintiff was required to defend and indemnify Miller (see New *1192York Cent. Mut. Fire Ins. Co. v Sweet, 16 AD3d 1013, 1014-1015 [2005], lv denied 5 NY3d 704 [2005]). Present—Hurlbutt, J.P, Martoche, Smith, Fahey and Peradotto, JJ.

This appeal is from an order denying defendant’s motion for summary judgment in a property damage negligence action. Defendant moved under rule 113 of the Rules of Civil Practice for summary judgment on the pleadings, bill of *695particulars and an examination before trial taken April 20, 1959. Plaintiff’s complaint alleges that defendant negligently constructed a silo on plaintiff’s property in September, 1945 and that thereafter in September, 1957 the silo collapsed damaging other property owned by the plaintiff. No claim is made for any damage or loss to the silo itself. The motion for summary judgment is based upon two grounds (a) that the action is barred by the Statute of Limitations and (b) that plaintiff is guilty of contributory negligence as a matter of law. As to the first ground, Special Term properly held that the cause of action accrued on the date of the collapse of the silo, September 18, 1957 and that the Statute of Limitations (Civ. Prac. Act, § 49, subd. 6) began to run as of that date rather than from the date of sale or the discovery, prior to the silo’s collapse, of certain defects in the materials or construction. In New York the cause of action for negligence accrues when there has been an invasion of personal or property rights (Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287; Great Amer. Ind. Co. v. Lapp Insulator Co., 282 App. Div. 545). “Though negligence may endanger the person or property of another, no actionable wrong is committed if the danger is averted. It is only the injury to person or property arising from negligence which constitutes an invasion of personal right, protected by law, and, therefore, an actionable wrong. * * * There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury. Otherwise, in extreme cases, a cause of action might be barred before liability arose.” (Schmidt v. Merchants Desp. Transp. Co., supra, p. 300.) Defendant seems to claim that its negligence, if any, resulted in injury to the plaintiff before the collapse of the silo because leaking and crumbling of concrete blocks had caused ensilage loss in certain years previous to the collapse. There is no relationship between the injuries except that they may have been caused by the same negligent act. The Schmidt case {supra) relied on by defendant involved a single wrong and a single injury. The answer to defendant’s contention is that a negligent act may cause more than one injury and thereby give rise to more than one cause of action. We further agree with Special Term that a reading of the examination before trial demonstrates the existence of a question of fact as to the contributory negligence of the plaintiff. Order unanimously affirmed, with costs to respondent.

Appeal from an order of the Supreme Court, Monroe County (Evelyn Frazee, J.), entered March 1, 2006 in a personal injury action. The order, inter alia, granted the motion of defendant John Mitrano for summary judgment dismissing the complaint and cross claim against him. It is hereby ordered that said appeal insofar as it concerns leave to amend the complaint be and the same hereby is unanimously dismissed and the order is affirmed without costs. Memorandum: In an action to recover damages for personal injuries allegedly sustained by plaintiffs while passengers in a vehicle driven by defendant John Mitrano, plaintiffs appeal from an order that, inter alia, granted the motion of Mitrano for summary judgment dismissing the complaint and cross claim against him. We reject the contention of plaintiffs that there is a triable issue of fact whether Mitrano was negligent and thus that Supreme Court erred in granting the motion. The evidence submitted in support of the motion establishes that the accident occurred when a vehicle driven by defendant Brian Lenander turned left in front of Mitrano’s vehicle as Mitrano’s vehicle was proceeding through an intersection with the green light. The evidence submitted in support of the motion further establishes that Mitrano was driving at or below the speed limit and had no time to avoid the accident by braking or changing course. Mitrano thus met his burden on the motion by establishing as a matter of law that the sole proximate cause of the accident was Lenander’s failure to yield the right of way (see Pomietlasz v Smith, 31 AD3d 1173 [2006]; see also Doxtader v Janczuk, 294 AD2d 859 [2002], lv denied 99 NY2d 505 [2003]). Plaintiffs failed to raise a triable issue of fact in response (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). *1193Furthermore, the court properly rejected the contentions of plaintiffs concerning the alleged negligence of Mitrano in allowing plaintiffs to ride unrestrained in the overcrowded back seat of his vehicle. Those contentions are “predicated, directly or indirectly, upon [Mitrano’s] noncompliance with [Vehicle and Traffic Law § 1229-c (1)],” and plaintiffs thus are precluded by section 1229-c (8) from offering evidence to support them (Bifaro v Smith, 242 AD2d 892, 892 [1997] [internal quotation marks omitted]; see also Baker v Keller, 241 AD2d 947 [1997]). The further contention of plaintiffs that the court erred in denying their request for leave to amend the complaint is not properly before this Court. Plaintiffs did not request such relief in a motion made upon notice and thus may not appeal as of right from the order insofar as it denied that relief (see CPLR 5701 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]; Milton v 305/72 Owners Corp., 19 AD3d 133 [2005], lv denied 7 NY3d 778 [2006]), and we decline to grant leave to appeal (see CPLR 5701 [c]). We therefore dismiss that part of the appeal. Present—Hurlbutt, J.P, Martoche, Smith, Fahey and Peradotto, JJ.

This is an appeal from an order to show cause issued by the Supreme Court pursuant to section 106 of the General Corporation Law. The petitioner is the owner of 50% of the stock of Clemente Bros., Inc., and initiated this proceeding seeking to bring about the dissolution of the corporation under article 9 of the General Corporation Law on the ground of deadlock in stockholders’ votes. Maria Clemente owns the other 50% of the stock. The petition alleges that “ the votes of the said holders of .the common stock of Clemente Bros., Inc., have been and are so divided that they cannot elect a board of directors.” (General Corporation Law, § 103.) Although at this stage of the proceeding notice to appellants was not required or given, both the corporation and the individual appellants appeared, were permitted to intervene, and moved to dismiss the petition for insufficiency. After numerous hearings the motion was denied, and the court, in the exercise of its discretion, granted the order to show cause and appointed a Referee to hear, after proper notice to all interested parties, the allegations and proofs of the parties. On its face the petition pictures a hopelessly deadlocked corporation, being managed solely by a group representing only 50% of the stockholders, with bitterness and reprisals between factions, inability to elect directors, and the existence of irreconcilable differences. On its face we think the petition is adequate to meet the technical requirements of article 9 of the General Corporation Law and give the court jurisdiction of the proceeding. Of course the order appealed from does not, dissolve the corporation nor mean that it should be dissolved. It merely directs, an inquiry into all the facts, and, before the corporation can be dissolved, the. requirements of the statute and those set forth in Matter of Seamerlin Operating Co. [Bearing-Merlino] (307 N. Y. 407) and Matter of Radom & Neidorff (307 N. Y. 1), must be met by proof. The court at Special Term had the power to grant the order directing a complete inquiry, and the exercise of its discretion in so doing should not be disturbed. Order unanimously affirmed, with $10 costs.

Appeal from a decision and award of the Workmen’s Compensation Board. Decedent was employed as a painter. In the course of employment he fell. He was found unconscious. Benzine had spilled, apparently when he fell. His clothes were saturated with this chemical and his body was wet and burned by it. Extensive areas of burns were found at the hospital. Symptoms were observed which led one physician to think decedent had an intra-cranial injury or a brain tumor. An exploratory operation of the brain was undertaken; extensive bleeding induced by this operation was the immediate cause of decedent’s death. No evidence of brain tumor or trauma was discovered in the course of operation. A biopsy was taken, but the specimen was accidentally lost. On autopsy no brain tumor was demonstrated. The cause of death given on autopsy was: “ Spontaneous Cerebral Hemorrhage followed by Exploratory Crimotomy. Hypostatic Lobular Pneumonia.” A “ cause of death” of one thing “followed by” another certainly means both; and in this instance means inescapably that the surgical procedure was itself a cause of death. It is clear from this, as well as from adequate other medical proof, that the operation itself was a direct cause of the death, i.e., the large amount of bleeding met with in the course of exploration of the intra-cranial spaces. But *696the surgeon, was looking for a tumor and for injury, which were not found. There is proof that the large exposure to benzine could cause symptoms which might simulate the conditions which led the physician to think an exploratory operation was needed for tumor or injury. Dr. Leinoff testified: “ In addition there are other clinical findings which are highly suggestive benzine played a role in this man’s clinical picture for which he was erroneously operated on for a brain tumor.” There is some other, weaker, medical proof that the exposure to benzine in the quantities shown in this case itself weakened decedent and lowered his resistance to surgery. There is evidence enough in this record, therefore, to warrant a finding that the benzine poisoning produced a condition which led to a mistaken diagnosis and to the institution of surgical procedures which directly caused decedent’s death. This would be an accident, whether decedent fell into the place of high benzine exposure due to idiopathic causes, or whether the benzine frames helped to cause his fall. The record as a whole sustains the award. Award affirmed, with costs to the Workmen’s Compensation Board. Bergan, P. J., Coon, Gibson and Reynolds, JJ., concur; Herlihy, J., dissents in the following memorandum and votes to reverse and dismiss the claim: There is no association or relationship established in this record between the accident and the death. The memorandum decision of the board dated February 26, 1958 and the subsequent finding dated September 9, 1958 are vastly different. The proof herein is not open to any presumptions. There was substantial evidence that the fall was caused by a cerebral hemorrhage. Applying the theory in Matter of Connelly v. Samaritan Hosp. (259 N. Y. 137) to the facts herein, it might be established that the can containing the benzine being solely attached to his employment justified a finding that the consequential injuries thereof arose out of his employment and that being so, in order to associate the death with any compensable accident, it was necessary to show that the benzine in some way contributed to its happening or in other words that the benzine was the cause or a cause of the operation and thus associated with the resulting death. The proof failed to establish any recognizable link in this necessary element of the ease. The record shows that following his admittance to the hospital, one of its surgeons diagnosed his condition as caused from a brain tumor and which diagnosis led to the subsequent operation and his resultant death. From the record there is some uncertainty as to the correctness of this diagnosis or whether his condition was due to a brain hemorrhage but it is not disputed that his death was due to profuse bleeding as a result of the operation. The medical testimony which attempted to associate the benzine with his resulting death consisted of a statement by one doctor that he supposed the extreme burns would lead or contribute to his death. Another doctor who had examined the hospital and autopsy reports stated that “ this man’s exposure to benzine on 11-11-54 started a chain of events which led to his death ” and he gave as his reasons “ there are other clinical findings which are highly suggestive that benzine played a role in this man’s clinical picture for which he was erroneously operated on for a brain tumor”. He finally concluded that the decedent had benzine intoxication or poisoning of the brain and that probably the continuous exposure to benzine over the years had a degenerating toxic effect on the decedent’s brain. There was nothing in the record to substantiate such a statement or opinion. (Matter of Palermo v. Gallucci & Sons, 5 N Y 2d 529, 532.) In contrast to this speculative testimony, the physician who performed the autopsy, which included a microscopic examination, determined death was caused from the effects of a hemorrhage within the brain, which had been operated upon, plus a complicating pneumonia. He further stated: “ to bring the burns in there is entirely superfluous, and if one were asked could the bums *697have added anything to the picture that would be a matter of utmost speculation. $ » o j the process in the brain, and the complication in the lungs more than adequately explains the death.” From a reading of the medical testimony in this record it is conclusive that there was no substantial evidence that associated benzine with the necessity for the operation or that benzine was related to the cause of death. The proof does not sustain the findings of the board that the decedent fell and struck his head and that the fall was accidental and not due to any tumor or other pathological or natural cause nor does it sustain that part of the memorandum decision that determined his death resulted in part from second degree burns. The record fails to support a finding of causal relationship. The decision and award should be reversed and claim dismissed.

Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered November 23, 2005. The order, insofar as appealed from, denied plaintiffs motion for partial summary judgment on liability under Labor Law § 240 (1) and granted those parts of defendants’ cross motions for summary judgment dismissing the Labor Law § 240 (1) and § 241 (6) claims. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying those parts of the cross motions with respect to the Labor Law § 240 (1) claim and the Labor Law § 241 (6) claim insofar as it is based on the alleged violation of 12 NYCRR 23-1.7 (b) (1) and reinstating the Labor Law § 240 (1) claim and the Labor Law § 241 (6) claim to that extent and by granting the motion and as modified the order is affirmed without costs. Memorandum: Plaintiff commenced this Labor Law action seeking to recover damages for injuries he sustained when he fell through an opening for a permanently affixed ladder, referred to as a “ship’s ladder,” on premises owned by defendant General Motors Corporation. Supreme Court erred in denying plaintiffs motion for partial summary judgment on liability under Labor Law § 240 (1) and in granting those parts of defendants’ cross motions for summary judgment dismissing that claim, and we therefore modify the order accordingly. We agree with plaintiff that he was engaged in a protected activity within the meaning of Labor Law § 240 (1). At the time of the accident, plaintiff was in a building located in the complex where the construction site was located, having been directed there by the project site manager to remove a gas regulator for use at the construction site. His work was therefore not part of a “separate phase easily distinguishable from other parts of the larger construction project” (Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 881 [2003]). Further, because plaintiff fell from an elevated work site through the opening for the permanently affixed “ship’s ladder,” he is entitled to partial summary judgment on liability under Labor Law § 240 (1) (see Holka v Mt. Mercy Academy, 221 AD2d 949 [1995], lv dismissed 87 NY2d 1055 [1996]; Szopinski v MJ Mech. Servs., 217 AD2d 906, 906-907 [1995], appeals dismissed 87 NY2d 861 [1995]; see also Russell v Baker Rd. Dev., 278 AD2d 790 [2000], lv dismissed 96 NY2d 824 [2001]; Skow v Jones, Lang & Wooton Corp., 240 AD2d 194 [1997], lv denied 94 NY2d 758 [1999]). The court also erred in granting those parts of defendants’ cross motions for summary judgment dismissing the Labor Law § 241 (6) claim insofar as it is based on the alleged violation of 12 NYCRR 23-1.7 (b) (1), and we therefore further modify the order accordingly. We conclude that there are triable issues of fact concerning the adequacy of the protection afforded to plaintiff with respect to the unprotected opening for the “ship’s ladder” and “whether the negligence of some party to, or participant in, the construction project caused plaintiff’s injury” (Paolangeli v Cornell Univ., 296 AD2d 691, 693 [2002] [internal quotation marks omitted]; see generally Long v Forest-Fehlhaber, 55 NY2d 154, 160 [1982], rearg denied 56 NY2d 805 [1982]; Russell, 278 AD2d 790 [2000]). Present—Hurlbutt, J.P., Martoche, Smith, Fahey and Peradotto, JJ.

Appeal by the employer and its carrier from a decision of the Workmen’s Compensation Board making a schedule award posthumously to the widow for a 10% loss of the right hand. The deceased employee was operating a grading machine on November 23, 1955 when he caught his right thumb in the steering wheel bending the thumb backwards and wrenching his wrist. A report dated November 26, 1955 from Dr. Brooks who took X rays stated that they showed a fracture of the styloid process of the radius. A Dr. Fairchild reported on November 30, 1955 that the decedent had a fracture of the styloid process of the radius which entered the wrist joint and that he would expect complete recovery in two to four months and that there should be no permanent partial disability and no schedule loss. Dr. Reidel the decedent’s attending physician reported on November 29, 1955 that there would probably not be á permanent defect and on January 30, 1956 that the patient had “ complete free range of motion of wrist with some area of tenderness over the posterior aspect of the ulnar styloid” and that there was no permanent defect. The decedent returned to work on November 28, 1955 and on December 27, 1955 he filed a claim for compensation. The first hearing was held on November 20, 1956 but the decedent was not present having died from unrelated causes the previous day. A finding of accident and causal relationship was made and the case was closed without an award on the finding of no lost time in excess of seven days and no permanent defect. Thereafter the case was reopened by the board and medical proof taken on whether there was a schedule loss. Dr. Harris a medical examiner for the board reviewed the record and reported the decedent “ would probably have [had] an ultimate loss due to 10% of the rt. hand.” He testified that he thought the claimant would have had a 10% functional loss of the right hand and he based this on his opinion that it was very unusual after such a fracture not to have some functional loss, on the tenderness reported by other doctors in the wrist after the fracture and on his review of the X rays and reports of other doctors. Dr. Murphy reviewed the case apparently for the carrier and reported that the decedent should have recovered without a schedule loss. Dr. Loehner, another board doctor, reviewed the ease and concluded there probably would have been an ultimate 10% loss of use of the right hand. The appellants declined the opportunity to cross examine Dr. Loehner on his report. The Referee made a schedule award for permanent partial disability for a 10% loss of the right hand and the board affirmed. The appellants contend that there is no evidence of actual disability relying principally on the fact that the report of the board doctors on which the award was based indicate only a probable disability. The board’s decision stated that most of the medical reports relied on by the carrier were submitted shortly before (obviously shortly after) *698the accident and are not definite and contain only a prognosis. The attending physician’s last report did state “no” permanent defect but it did show some tenderness in the wrist. Regardless of this it would seem the board could properly base its award on the reports of its doctors. Although these reports said “ probable ” that is in fact all they could say for the employee was dead. They had not examined him during his life and were expressing their opinions based on the facts given them as to what the result of the accident would have been. As this court said in Matter of Zaepfel v. duPont de Nemours & Co. (284 App. Div. 693, 695, affd. 309 N. Y. 962): “ Appellant urges that the use of the word ‘ could ’ and similar words in some instances, afflict the opinion with a lack of positiveness which destroys the probative value. The form and language used are not controlling. The law does not require such positiveness especially in workmen’s compensation eases. (Matter of Green v. Geiger, 253 App. Div. 469, 255 App. Div. 903, affd, 280 N. Y. 610.) ” While the report of the decedent’s physician who actually examined the claimant would of course be entitled to greater weight, it was made only two months after the accident, it did reveal a tenderness still present and in our view under the unusual circumstances of this case the board could properly accept the opinions expressed by its own doctors. Decision and award affirmed, with costs to the Workmen’s Compensation Board. Bergan, P. J., Coon, Gibson and Reynolds, JJ., concur; Herlihy, J., dissents, in the following memorandum: This record contains positive testimony by claimant’s attending physician and radiologist that there was no permanent defect resulting from the fractured wrist. Subsequently and following the death of the claimant, a medical examiner for the board testified he thought that the claimant would have a 10% functional loss of the right hand and a second board physician who examined the records testified there would probably be a 10% loss. Neither of these doctors examined the claimant during his lifetime and arrived at their conclusions based upon reports of the attending physician and an examination of the X rays. It appears that their opinions were based primarily upon the statement in one of the reports that there was some tenderness in the wrist but the same doctor who made that statement in the same report said there was no permanency. Under such circumstances the opinions of the board doctors cannot be considered substantial evidence but is speculative and based on surmise. The record as a whole does not support the award. (Matter of McCormack v. National City Bank, 303 N. Y. 5, 8; Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65, 71; Matter of Miller v. National Cabinet Co., 8 N Y 2d 277.)

Appeal from an order of the Court of Claims. Claimant alleges that on July 29, 1956 she was injured while roller skating in a State park. A claim was not filed within 90 days of accrual of the action (Court of Claims Act, § 10, subd. 3), and a motion for permission for late filing within the permissive authorization of subdivision 5 of section 10 has been denied by the Court of Claims. Motion for permission to file the claim was made October 21, 1957, about 15 months after the accident, and six months after the elapse of the time set up in subdivision 5. The test provided by this subdivision is not a physical or mental inability to file the claim; but rather a “ reasonable excuse ” for not filing it on time. (Compare General Municipal Law, § 50-e; e,g. Bloom v. State of New York, 5 A D 2d 930; Matter of Osborn v. Board of Educ., 5 A D 2d 929.) Although claimant does not show an excuse based on a complete physical disability; or an excuse based on an entirely unavoidable condition or circumstance, she does meet the test of reasonableness in showing why the claim *699was not filed earlier. She suffered a concussion of the brain, low back sprain and contusions; and her physician said that she had severe dizziness and frequent blackouts and lapses of memory. She was hospitalized twice. Her doctor swears that she asked him about consulting a lawyer several times in 1956 and he advised she postpone this because in his opinion it would aggravate her condition. The State claims prejudice; but it shows no report of the accident, although claimant presented proof that it was immediately reported to an official in charge of the skating area. The delay of six months beyond the nine-month period has not, in these circumstances, been shown to have prejudiced the State. On the general judicial policy on this subject, see Bloom v. State of New York (5 A D 2d 930, supra); Rugg v. State of New York (278 App. Div. 216, revd. 303 N. Y. 361; reconsidered 279 App. Div. 810); and Lawrence v. State of New York (281 App. Div. 922). Order reversed on the law and the facts and in the exercise of discretion; and motion granted, with $10 costs. Bergan, P. J., Coon, Gibson and Herlihy, JJ., concur; Reynolds, J., dissents, and votes to affirm.

*1195Proceeding pursuant to Executive Law § 298 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Monroe County [Harold L. Galloway, J.], entered April 11, 2006) to review and enforce an order of petitioner. The order found after a hearing that respondents discriminated against complainants in violation of the Human Rights Law and awarded complainants damages. It is hereby ordered that said petition be and the same hereby is unanimously granted with costs in accordance with the following memorandum: Petitioner commenced this proceeding pursuant to Executive Law § 298 seeking enforcement of the order of its Commissioner finding that respondents discriminated against the six complainants based upon their gender, awarding those complainants compensatory damages for mental anguish and humiliation, and awarding four of the complainants lost wages. Complainants worked as secretaries/office managers for respondent Adams Security, Inc. and filed complaints with petitioner alleging that they were sexually harassed by respondent Leonard Adams, Sr. and that such harassment constituted sex discrimination and/or a hostile work environment during their respective periods of employment, ranging from one day to two months, from March 1992 through July 1993. The Commissioner, adopting the findings of the Administrative Law Judge, found that Leonard Adams, Sr. exposed five of the six complainants to a hostile work environment, and that he dismissed three of the complainants because of their gender and constructively dismissed the other three complainants by creating intolerable working conditions because of sexual harassment. We conclude that those findings are supported by substantial evidence in the record (see generally Executive Law § 298; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-182 [1978]). We further conclude that the relief imposed by the Commissioner is reasonably related to the discriminatory conduct (see Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 217 [1991]), and thus there is no reason to disturb the determination of the Commissioner, who “may fashion a remedy to make the victim[s] whole for injuries suffered as a result of discriminatory employment practices [and who has] . . . ‘broad powers to adopt measures which he . . . reasonably deems necessary to redress the injury’ ” (Matter of Beame v DeLeon, 87 NY2d 289, 297 [1995]). We therefore grant the petition by directing respondents to *1196pay to complainant Deborah Merritt the sum of $2,160 for lost wages and $25,000 for mental anguish and humiliation with interest at the rate of 9% from April 30, 2004; to pay to complainant Angela M. Hudson the sum of $2,040 for lost wages and $25,000 for mental anguish and humiliation with interest at the rate of 9% from April 30, 2004; to pay to complainant Valeria R. Miller-Wilcox the sum of $2,500 for mental anguish and humiliation with interest at the rate of 9% from April 30, 2004; to pay to complainant Belinda Miller the sum of $25,000 for mental anguish and humiliation with interest at the rate of 9% from April 30, 2004; to pay to complainant Sharon A. Rodgers the sum of $4,320 for lost wages and $25,000 for mental anguish and humiliation with interest at the rate of 9% from April 30, 2004; and to pay to complainant Levease Townsend the sum of $5,600 for lost wages and $25,000 for mental anguish and humiliation with interest at the rate of 9% from April 30, 2004. Present—Scudder, EJ., Hurlbutt, Smith, Lunn and Green, JJ.

Appeal by an employer and its insurance carrier from a decision and award of the Workmen’s Compensation Board for disability and death benefits, predicated upon a finding that decedent’s work as a garage employee aggravated his pre-existing rheumatic heart disease, causing his death. Appellants contest the finding of accident. The employer testified that decedent “ did 90 per cent of our lubrication work. In addition, he helped out with anything that was heavy and hard to do, naturally, being the biggest and youngest of all of us.” On July 7, 1955 he worked at changing tires, at least one of them being the large tire, about 4% feet in diameter, of a heavy dump truck. During this work he complained of chest pain, rested on his bed at home during the noon hour and returned to work late but could not or did not complete the job. On September 8, 1955 he was engaged continuously for two to two and one-half hours in lubricating automobiles, this work requiring him to stand under the vehicle as it rested on a lift and to work overhead, reaching his arms up and operating a five-pound grease gun up and down over his head. In midmorning he complained of chest pain and shortness of breath and the employer took him home where he told his wife that he had started to black-out under the lift. He did not work again, finding even the task of operating a gasoline pump too arduous. The physician he consulted when he returned home on the day of the incident last described diagnosed “rheumatic heart disease, more specifically a mitral stenosis and mitral insufficiency ”, and these findings were eventually confirmed on autopsy. Decedent remained disabled, and suffered recurrent attacks. An attempted operation for cardiac catheterization was unsuccessful and very nearly fatal; and finally he was hospitalized on June 6, 1956 and died three days later. Decedent’s attending physician considered that the work which decedent did on September 8 caused the attack of that day, and related the work to his subsequent death, testifying “ He had a rheumatic heart condition. The type of work he was doing, as you described it and as I would ordinarily know it, that type of work would be heavy work and I feel certain that if [we] had been able to get a hold of this boy before we did and changed his occupation that his chances of survival would have been much better. I think this heavy work definitely aggravated a weakened heart.” On cross-examination the doctor said: “I believe that, this was the second attack that we knew had happened during employment and I knew the type of work he was doing. And I feel that was all an accumulated thing but precipitated by the work he was doing that morning.” The cardiologist who had also attended decedent found that *700the work incidents of July 7 and September 8 were competent producing causes of death by aggravation of the pre-existing disease. He said that “ a heart like this will remain perfectly compensated as a general rule if you have no undue effort or strain, and I think the way you described the work to me he was constantly releasing an unusual amount of effort for a heart of this type to take without going into failure * * * The worst of it is once the heart gets that extra push upon it, so to speak, you never can get them back.” Describing the result of the work incident of September 8 in more technical terms, the doctor said that “it threw him into irreversible cardiac decompensation or cardiac failure.” Appellants’ medical expert denied causal relation to the work and found decedent’s death “ due to the course of his rheumatic heart disease.” The evidence of accident causative of death seems to us substantial and amply sufficient to satisfy the rule that “so long as the conditions of performing the work are such that an exceptional strain is imposed on the worker so great that his heart is affected and damaged thereby, the requirement of unusual or excessive strain is satisfied.” (Matter of Schechter v. State Ins. Fund, 6 N Y 2d 506, 510.) Award is not to be denied merely because the effort was that of the usual work, provided, as seems clearly the case here, the work was “ sufficiently strenuous to require more than normal exertion.” (Matter of Burris v. Lewis, 2 N Y 2d 323, 326.) The effort expended by decedent on his last day at work seems to have been generally comparable, in nature and degree, to that found to constitute unusual or excessive strain in Matter of Carr v. Sturdy Built Homes (6 A D 2d 914) and in Matter of Cuvelier v. Fairbanks & Walvoord (6 A D 2d 920); and his work upon outsize tires at the time of the previous incident seems no less strenuous. Appellants’ argument is directed very largely to inaccuracies in the board’s findings, one, that because of his heart condition decedent “ was required to do only light work ”, which was clearly in error; the other, that disability and death were caused by “ harder and more physical work than he normally did ”. The latter finding does not, of course, literally or in express terms, at least, apply the test imposed by Schechter and Burris (supra); but upon this record the manual labor to which the board referred as “light” work could not be accounted less than the “normal exertion” constituting the standard of comparison required by these cases; and the board necessarily found effort exceeding that standard when finding effort harder than the normal work from the evidence of one or both of the work incidents, upon which, of necessity, any finding of extra exertion had to be based. Therefore, in this case and upon this record, the verbiage employed by the board does not seem to us to render the findings fatally defective. The appeal required us to determine whether, as a matter of law, there was substantial evidence of excessive strain-—-this, of course, on the description of the work as it appeared in the record. We have determined that there was. That description was neither questioned nor contradicted and, further, it was given, in large part, by the employer. In any event, it seems plain that the board’s basic determination and the intendment and effect of its finding were that the work involved effort more strenuous than normal exertion and we consider that remittal of this four-year-old death case merely to enable the board to correct the language of its decision would be an unnecessary and wasteful ceremony. Decision and award affirmed, with costs to the Workmen’s Compensation Board. Bergan, P. J., Coon and Gibson, JJ., concur; Herlihy and Reynolds, JJ., dissent and vote to reverse the decision and award and dismiss the claim herein with the following memorandum: In our view there is no substantial evidence to support the board’s findings that the disability or death resulted from an accidental injury arising out of or during the course of his employment. (Burris v. Lewis, 2 N Y 2d 323; Matter of Kopec v. Buffalo Brake Beam, etc., Iron Works, 304 N. Y. 65.)

Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered July 27, 2005. The judgment convicted defendant, after a nonjury trial, of burglary in the second degree, criminal possession of stolen property in the fifth degree, criminal mischief in the fourth degree and possession of burglar’s tools. It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Erie County, for a reconstruction hearing in accordance with the following memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of burglary in the second degree (Penal Law § 140.25 [2]), criminal possession of stolen property in the fifth degree (§ 165.40), criminal mischief in the fourth degree (§ 145.00 [1]) and possession of burglar’s tools (§ 140.35). Defendant contends, inter alia, that he did not sign the waiver of his right to a jury trial in open court, as required by NY Constitution, article I, § 2 and CPL 320.10 (2) (see People v Page, 88 NY2d 1, 9-10 [1996]; People v Finkle, 262 AD2d 971, 972 [1999]). We are unable to determine on the record before us whether the waiver was signed in open court, and a reconstruction hearing thus is necessary (see People v Basora, 90 AD2d 851 [1982]). We therefore hold the case, reserve decision and remit the matter to Supreme Court for a reconstruction hearing on that issue. Present—Scudder, EJ., Hurlbutt, Smith, Lunn and Green, JJ.

Appeal by defendant from a judgment of the Supreme Court in favor of the plaintiff, after a trial before the court without a jury. The effect of the judgment is to require the defendant to defend the plaintiff in certain actions brought against him arising from automobile collisions and to require the defendant to pay any judgments against the plaintiff by reason of such actions within the limits of its policy. The real question in the case, is whether the plaintiff was driving the covered automobile at the time of the collisions with the implied consent of the plaintiff’s brother, who was the owner of the automobile and the named assured. The facts are not in dispute. The defendant issued a standard automobile liability insurance policy to Van Burén Coons, plaintiff’s brother, covering a 1948 Chevrolet automobile, and the policy was in effect on December 9, 1957, when the automobile was involved in several collisions with other automobiles. On the evening in question Van Burén Coons was driving said automobile in a northerly direction on North Pearl Street in the City of Albany. Van Burén Coons’ wife was a passenger in the front seat. Plaintiff and his fiancée, one Patricia Riley, were passengers in the rear seat. At a point in'front of the Strand Theater Van Burén Coons suddenly stopped the automobile near the center of the street, got out of the car and walked away, leaving the motor running. Mrs. Van Burén Coons and Patricia Riley also got out of the car and followed Van Burén Coons, leaving the plaintiff as the sole occupant of the car. Plaintiff, who had no operator’s license at the time, got into the front seat, put the car into gear, and attempted to move it from the center of the street. At that time a police car came along and plaintiff “ panicked ” and continued on until he struck several automobiles, resulting in five lawsuits being brought against him. Under such circumstances permission may be implied from the acts and conduct of the owner, and “ it must be recognized as a basic proposition that when one leaves his motor vehicle in a busy street in such a position that a reasonably prudent person should anticipate that in the event of an emergency or other necessity, it must be moved, it imposes upon the owner responsibility for the negligent acts of the person left in charge.” (Winnowski v. Polito, 294 N. Y. 159, 162.) At least a factual question was presented from which the trier of the facts could determine that there was implied permission to operate the car. There is no evidence in the record that the owner did not give permission. Judgment affirmed, with costs. 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 Sullivan County denying appellant’s application for a writ of error coram nobis. The basis of appellant’s application is that he was not represented by the attorney he had retained, one Carl Goldstein, at the time of his arraignment on the charge of first degree murder. The minutes of the arraignment indicate that Benjamin Goldstein, the brother and law partner of Carl Goldstein, appeared *702for the appellant. Benjamin Goldstein testified at the hearing below that his brother was out of town on the day of the arraignment, that he appeared and spoke to the appellant who consented to his appearance on appellant’s behalf and that he advised him how to plead. The appellant testified that he had never met Benjamin Goldstein and that no one represented him at his arraignment. At the time of the arraignment the defendant plead not guilty and the ease was transferred from Supreme Court to County Court for trial. When the appellant later plead guilty to a reduced charge he was represented by Carl Goldstein as he had been at the time of a preliminary examination held before the arraignment. The court below denied the application finding that Benjamin Goldstein had represented the appellant at his arraignment and that no objection was made by appellant to such representation. The appellant was afforded a full hearing and he has failed to demonstrate any error or deprivation of a constitutional right entitling him to a writ of error coram nobis. Order unanimously affirmed, without costs.

Appeal from an order of the Supreme Court, Orleans County (James E Punch, A.J.), entered May 24, 2006. The order denied that part of defendants’ motion to dismiss the amended complaint for failure to state a cause of action and denied without prejudice that part of defendants’ motion to dismiss the constructive fraud and negligent misrepresentation claims as time-barred. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the claim for constructive fraud and as modified the order is affirmed without costs. Memorandum: Plaintiffs, individually and on behalf of other employees similarly situated, commenced this action to recover damages for fraud, constructive fraud and negligent misrepresentation. Defendants appeal from an order denying that part of their motion to dismiss the amended complaint for failure to state a cause of action and denying without prejudice that part of their motion to dismiss the constructive fraud and negligent misrepresentation claims as time-barred. We reject the contention of defendants that Supreme Court erred in denying that part of their motion seeking dismissal of the amended complaint for failure to state a cause of action insofar as it alleges claims for fraud and negligent misrepresentation. In determining whether the amended complaint stated a cause of action based on those claims, the court was required to construe the amended complaint “liberally . . . , and accept as true the facts alleged in the [amended] complaint and any submissions in opposition to the . . . motion[,] . . . according] plaintiffs the benefit of every possible favorable inference” that may be drawn from the allegations (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see Parker v Leonard, 24 AD3d 1255 [2005]; Gibraltar Steel Corp. v Gibraltar Metal Processing, 19 AD3d 1141, 1142 [2005]). Viewing the amended complaint in that light, we conclude that it sufficiently states claims for fraud and negligent misrepresentation. Also *1198contrary to defendants’ contention, the statements that form the basis of the fraud claim “constitute ‘material existing fact[s], sufficient to support a fraud action’ ” (CPC Intl. v McKesson Corp., 70 NY2d 268, 286 [1987], quoting Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 407 [1958]; see generally Wright v Selle, 27 AD3d 1065, 1067-1068 [2006]; cf. Inside Swing v LeChase, 236 AD2d 884 [1997]). We agree with defendants, however, that the court erred in denying that part of their motion seeking dismissal of the amended complaint for failure to state a cause of action insofar as it alleges a claim for constructive fraud, and we therefore modify the order accordingly. A necessary element of a claim for constructive fraud is the existence of “a fiduciary or confidential relationship” (Del Vecchio v Nassau County, 118 AD2d 615, 618 [1986]). Here, “the affiliation between the parties—educational institution as employer and tenured [teacher] as employee— does not create a cognizable fiduciary relationship” (Maas v Cornell Univ., 245 AD2d 728, 731 [1997]). We reject defendants’ further contention that the court erred in denying that part of their motion seeking dismissal of the negligent misrepresentation claim as time-barred. “[T]he period of limitations for purposes of [the negligent misrepresentation claim] began to run from . . . the date on which the plaintiff[s] relied upon the alleged misrepresentation” (Fandy Corp. v Lung-Fong Chen, 262 AD2d 352, 353 [1999]), and that date has not yet been established at this preanswer stage of the proceedings. We thus conclude that the court properly denied that part of defendants’ motion without prejudice. We have considered defendants’ remaining contentions and conclude that they either are without merit or are moot in light of our determination. Present—Scudder, EJ., Hurlbutt, Smith, Lunn and Green, JJ.

Appeal from an order of the Supreme *703Court, Albany County granting respondent’s motion for summary judgment and denying appellants’ cross motion for summary judgment and from the judgment entered thereon. The respondent instituted this action under article 15 of the Real Property Law to compel the determination of claims to certain real property. It set forth in its complaint a description of the property to which it asserts ownership, the description showing a piece of property having a frontage of 2 chains, 58 links, or 170.28 feet on the old Turnpike Road. The description stated it had been conveyed to one Glashine in 1865 and respondent asserts that one portion of this parcel having a frontage of 33 feet was conveyed away and eventually descended to one Chapman in 1923 and that the remaining portion by devise or transfer descended to the same Chapman in 1916. It contends that these two parcels were assessed as two lots by the City of Troy from 1930 to 1951. A proceeding was instituted by the city to foreclose tax liens and a deed dated September 3, 1953 purported to convey the premises to one Rawiek who in turn conveyed it to the respondent. The description of the land in the tax deed was similar to that appearing on the assessment rolls which stated the land was on the north side of Northern Turnpike being the same as the Old Turnpike Road, and bounded by Ryhorn, Road, Collins and Ives. It was also described as “Parcel Lot No. A”. The appellants contend that this is not the same property described in respondent’s complaint, and rather that they are the owners of that property under a deed from Chapman and his wife dated June 12, 1957. The court below held that there was no triable issue of fact since respondent’s title is a matter of record and is clothed with a presumption of regularity. The description in respondent’s complaint of the property to which they claim ownership and the description in the tax deed through which they claim ownership are admittedly not the same. The question is whether the tax deed describes the same property as is described in respondent’s complaint and we are of the opinion that a question of fact was raised by the appellants on this issue. The description in the tax deed is substantially the same as the description on the assessment roll except for the addition of the description “ Parcel Lot No. A ”. Appellants submitted a tax map showing that Lot A was not the property to which respondent claims ownership and respondent concedes that this description was erroneous. Further, the assessment roll description shows the two lots as having the same boundaries. If the two lots were from the same parcel as respondent contends they would not have the same boundaries and would have at least one common boundary. This discrepancy has not been explained and there is thus a question of fact as to whether the property described in respondent’s complaint is the same property described in the tax deed. This question of fact is not removed by the presumption under subdivision 7 of section 1136 of the Real Property Tax Law, which becomes conclusive after two years from the recording of the deed, to the effect that all proceedings were in accordance with law. In view of the different description involved the respondent must demonstrate that the property described in the deed is the same property to which it claims ownership before the presumption comes into effect and the presumption cannot be used to supply that proof. Judgment reversed, on the law and the facts, and motion for summary judgment denied, with costs.

Claimant Bernadine E. Mace was a tenant in a housing project maintained by the State of New York, and on January 7, 1950 fell in front of the premises she occupied. She testified that when starting to cross the street in front of her apartment she stepped in a hole and fell. The Court of Claims has found that the hole was in a part of the premises “ constructed, controlled and maintained ” by the State; that it was located in a place which was “ the only means of ingress and egress ” to the apartment; that the hole was six to eight inches deep and a foot wide, ragged and uneven; and that a recent fall of snow had, on January 7, 1950, covered the outline of the hole. The court held, however, that the State was not negligent and that Mrs. Mace was herself negligent and dismissed the claim of Mrs. Mace and her husband. We feel bound by our prior decision in this case (2 A D 2d 629) to reverse the judgment. On a former trial at the close of claimants’ proof the Court of Claims had dismissed the claim and granted judgment for the State on the ground that even if the State’s negligence be conceded, as the court apparently inferentially did in an oral opinion, Mrs. Mace had herself been negligent in stepping in the hole. In reversing that judgment this court held unequivocally that the record “ establishes a prima facie ease ”. On the second trial, however, the entire record in the first trial was stipulated in and the State merely offered some general observations by a bread delivery salesman as to the condition of the street and some general photographs taken many months later. Nothing whatever was added to the record in respect of the specific hole or condition existing on the day of the accident and therefore on every element pertinent to the issue the record is exactly the same one on which this court held that a prima facie case was made out. The State was under no obligation on the second trial to stipulate the same record; it could have controverted the issue of negligence on the merits, in view of the ruling made here on the first record; but on the second appeal we are confronted by exactly the same record in every material respect as was here before. Indeed, the Judge who directed the present judgment did not personally hear the claimants’ case or any evidence directly bearing on the issue. If we were right on the first appeal in ruling that a prima facie ease was made out then, the ruling still must be followed. Almost 11 years have gone by since the accident in January, 1950, and we see no need to remit the ease again. Judgment reversed on the law and the facts and judgment directed for claimant Bernadine E. Mace in the sum of $850 and Thomas A. Mace in the sum of $150, with costs. Settle order.

The employer and carrier appeal from an award of death benefits. Appellants contend that the decedent was not an employee within the meaning of the Workmen’s Compensation Law. The facts concerning the accident and death are without dispute. Decedent was the president: of a membership corporation organized for and operating what is com*704monly recognized as a country club and golf course for the social and recreational activities of its members. It is undisputed that decedent was an executive officer of the corporation under subdivision 6 of section 54 of the Workmen’s Compensation Law. He served as president of the corporation without salary or other direct financial remuneration. On the day of his death decedent participated in a golf tournament, which he had assisted in promoting as a fund raising as well as a recreational activity of the club. Following the golf tournament a banquet was held in which decedent participated as host and as a speaker. The evidence discloses that after the dinner decedent participated in social activities with guests and members of the corporation; discussed the financial results of the tournament with members and the possibility of a future tournament for the raising of additional funds. During this meeting decedent, apparently on his way to the men’s room, fell in descending a flight of stairs and sustained injuries which resulted in his death. There is adequate evidence to support the finding of the board that the accident arose out of and in the course of his employment. Appellants do not argue otherwise. The only remaining question, and the only one urged by appellants, is whether decedent was an “ employee ” within the meaning of the Workmen’s Compensation Law. Clearly decedent was an executive officer of a corporation within the meaning of subdivision 6 of section 54 of the Workmen’s Compensation Law, which reads, in part: “ 6. Insurance of officers of corporations. Every executive officer of a corporation other than a religious, charitable or educational corporation, or elected or appointive officers of a municipal corporation, or officers of any post or chapter of organizations of veterans of any war of the United States shall be deemed to be included in the compensation insurance contract or covered under a certification of self-insurance.” A membership corporation is not one of the exclusions, so that for the purposes of this case the important part of subdivision 6 is “Every executive officer of a corporation * * * shall be deemed to be included in the compensation insurance contract ”. Subdivision 6 of section 54 also provides: “ The executive officers within the coverage of the insurance contract * * * shall have the same rights and remedies as any employee and shall be entitled to compensation”. There is adequate evidence to support the board’s finding that decedent was an employee within the provisions of the Workmen’s Compensation Law. Moreover, appellant carrier’s policy expressly covers “ executive officers ” and it presumably based its premium accordingly. It may not now assert that decedent was not a “ covered employee ”. Award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered April 20, 2006 in a legal malpractice action. The order denied defendants’ motion for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the complaint insofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff would have been successful in the underlying action based upon a serious injury she sustained under the 90/180 category of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs. Memorandum: Plaintiff retained defendants to commence a personal injury action to recover damages for injuries she alleg*1200edly sustained in an automobile accident on March 23, 1999. It is undisputed that defendants did not timely commence that action. Plaintiff thereafter commenced this legal malpractice action alleging that she would have been successful in the underlying action based upon serious injuries she sustained under the significant limitation of use and 90/180 categories of serious injury within the meaning of Insurance Law § 5102 (d), and that she was deprived of a remedy for her injuries by defendants’ negligence. Contrary to the contention of defendants, Supreme Court properly denied their motion for summary judgment dismissing the complaint insofar as the complaint, as amplified by the bill of particulars, alleges that plaintiff sustained a serious injury under the significant limitation of use category. In support of their motion, defendants had to establish that “plaintiff is unable to prove at least one of [the] essential elements of a malpractice cause of action” (Ippolito v McCormack, Damiani, Lowe & Mellon, 265 AD2d 303, 303 [1999]), and here defendants asserted in support of their motion that plaintiff did not sustain a serious injury in the March 1999 accident and thus would not have been successful in the underlying action even if it had been timely commenced. Defendants submitted the affidavit of a medical expert who opined that plaintiff sustained only a mild cervical strain in the March 1999 accident and that plaintiffs injuries were the result of a second motor vehicle accident occurring in November 1999 (see Pommells v Perez, 4 NY3d 566, 577 [2005]; see generally Clark v Perry, 21 AD3d 1373 [2005]). The expert also noted, however, that plaintiffs “cervical spine was limited in left rotation by 50%, extension by 50%, and flexion by 25%,” that plaintiff had been diagnosed with disc herniations, and that she was required to undergo an anterior cervical discectomy and fusion in an attempt to correct those conditions. We thus conclude that defendants’ submissions established that plaintiff had a significant limitation of use of a body function or system (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]), and that plaintiffs burden in opposition was therefore limited to addressing the alleged lack of causation (see Clark, 21 AD3d at 1374). In response, plaintiff submitted competent medical evidence establishing that her injuries were caused in part by the March 1999 accident and thus raised a triable issue of fact whether she would have been successful in the underlying action based upon a serious injury under the significant limitation of use category (see generally Pommells, 4 NY3d at 577). We agree with defendants, however, that plaintiff would not *1201have been successful in the underlying action based upon a serious injury under the 90/180 category, and we therefore modify the order accordingly. Defendants established that plaintiff resumed working immediately after the subject accident and continued many of her normal activities throughout the relevant period, and plaintiff failed to raise a triable issue of fact whether she was unable to perform substantially all of the material acts that constituted her usual and customary daily activities (see Robinson v Polasky, 32 AD3d 1215 [2006]; Bums v McCabe, 17 AD3d 1111 [2005]). Present—Scudder, EJ., Hurlbutt, Smith, Lunn and Green, JJ.

Appeal from an order of the Supreme Court, Rensselaer County, determining the priorities to surplus money resulting from the sale of property in a mortgage foreclosure. On September 30, 1954 a workmen’s compensation award was made against the mortgagor as an uninsured employer but judgment was not entered thereon until March 25, 1955. The appellant Johnson holds two mortgages on the property which were recorded after the date of the award but before judgment was entered thereon. The Referee to whom the claims for surplus money were referred ruled that the compensation award was not entitled to priority over the mortgages because of certain procedural irregularities in the compensation proceeding. The court below did not confirm the Referee’s report but rather held that the determination of the Workmen’s Compensation Board could not be attacked collaterally in the proceeding. It then went on to hold *705that under section 34 of the Workmen’s Compensation Law the award took priority over the mortgages which were recorded after the award was made but before the judgment was entered. The court- below correctly determined that the Referee could not - collaterally attack the Workmen’s Compensation Board decision for procedural irregularities occurring therein. On the question of priority section 34 provides that: “ Compensation shall be a lien against the assets of the carrier or employer without limit of amount subordinate, however, to claims for unpaid wages and prior recorded liens.” There can be no question that such a statutory provision can create a lien without any requirement of filing but the issue presented here is whether such a lien can take preference over after recorded liens. The respondent relies on Albert Pipe Supply Co. v. Callahan (159 Misc. 547 [App. Term, 1st Dept.]) and Halpert v. Industrial Comr. (147 F. 2d 375) which indicate that section 34 creates a valid lien but neither case involves the question of its priority with a subsequent lien which had been properly recorded. The court below recognized that to give it such a priority would be harsh upon those passing title. Further, the language of Justice Bergak in Matter of Oxford Distr. v. Famous Robert’s (5 A D 2d 507, 508) indicates that such a result might be a deprivation of property without due process: “It is, of comse, possible by the act of public authority to create liens which will exist without physical attachment to the property affected and without filing notices in the available public offices where they may be searched out by interested parties; but they could not wipe out the property rights in existing liens or other third-party rights acquired in good faith; and probably could not, with regard to due process, take priority over the subsequently created liens of judgment creditors and other lienees acting in good faith without notice.” Such objections to section 34 may be obviated by reading it in conjunction with the provisions of section 26 of the Workmen’s Compensation Law. Under section 26 a procedure is established whereby a decision of the Workmen’s Compensation Board awarding compensation may be filed with the County Clerk and judgment entered thereon. Thus when read in this light section 34 may be reasonably interpreted to create a lien but a lien which does not take priority over after recorded liens until a judgment- has been entered thereon. The award of compensation here would therefore not take preference over mortgages which were recorded before a judgment was entered on the award. Judgment modified, on the law and the facts, so as to give priority to the liens of appellant Johnson and as so modified affirmed, with costs to appellant.

Motion by claimant to correct the decision of the court of August 2, 1960 (11 A D 2d 303) relating to the consequential damage to 20.537 acres of land denied. The opinion correctly reflected the view of the court that the consequential damage to the parcels of land not taken is $81,782. The percentage formula applied to damage for this land not taken was adopted to achieve consistency with the method of computation of damage followed by the Court of Claims and was applied to the discounted value of an acre before the taking. Claimant’s computations would increase the consequential damage for this land not taken to $210,850.40 or to almost 50% of the entire award. No such damage is demonstrated on any reasonable theory and the court refuses to find damage in such magnitude. Claimant’s computations on this motion essentially are based on the difference in profits which might have been realized on the land not taken, discounted for the same period as though there had been no taking of other land, We do not accept this theory as a reliable or reasonable *706evaluation of damage to this parcel. Cross motion by the State denied. Settle order to be entered on notice and in accordance with the procedure set forth in regulations affecting orders (Rules, 3d Dept.).

Appeal by relator from an *707order of the Washington County Court, which dismissed a writ of habeas corpus. Relator was convicted of grand larceny in the second degree on April 25, 1956 and sentenced to Elmira Reformatory for an indefinite term of five years maximum. He was released on parole on December 18, 1957. On September 6, 1958, while on parole, he was arrested in Nassau County on charges of burglary, third degree, and petit larceny. On September 9, 1958, the Parole Board declared relator delinquent and lodged a return warrant against him. He was held in the Nassau County Jail on the new charges until August 5, 1959, when he was convicted of burglary, third degree, after a jury trial. A sentence of 5 to 10 years was imposed, but the execution thereof suspended. Relator’s sole contention is that he is entitled to credit on his original sentence for the time he was held in the Nassau County Jail awaiting trial on the new charges. Subdivision 3 of section 2193 of the Penal Law provides for such credit only if the charge of the new crime “ shall ultimately be dismissed or he is acquitted thereof”. Here the charge was not dismissed and relator was not acquitted. On the contrary he was convicted, and it follows that subdivision 3 of section 2193 has no application. Order unanimously affirmed, without costs.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Eugene M. Fahey, J.), entered September 7, 2005 in a proceeding pursuant to CPLR article 78. The judgment granted the cross motion of respondent Buffalo Fiscal Stability Authority seeking dismissal of the petition. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Petitioners appeal from a judgment granting the cross motion of respondent Buffalo Fiscal Stability Authority (BFSA) seeking dismissal of the petition as time-barred under the four-month statute of limitations applicable to CPLR article 78 proceedings. Petitioners contend that this is a declaratory judgment action subject to the six-year statute of limitations because they are seeking, inter alia, a declaration that the wage freeze imposed by BFSA violates various provisions of both the United States and New York State Constitutions and thus that Supreme Court erred in granting the cross motion. We reject that contention. “The appropriate [s]tatute of [l]imitations is determined by the substance of the action and the relief sought” (Bennett Rd. Sewer Co. v Town Bd. of Town of *1202Camillus, 243 AD2d 61, 66 [1998]; see New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 200-201 [1994], rearg denied 84 NY2d 865 [1994]; Press v County of Monroe, 50 NY2d 695, 701 [1980]; Solnick v Whalen, 49 NY2d 224, 229-230 [1980]). “[I]f the claim could have been made in a form other than an action for a declaratory judgment and the limitations period for an action in that form has already expired, the time for asserting the claim cannot be extended through the simple expedient of denominating the action one for declaratory relief’ (New York City Health & Hosps. Corp., 84 NY2d at 201). Petitioners are correct that “a proceeding under article 78 is not the proper vehicle to test the constitutionality of legislative enactments” (Matter of Kovarsky v Housing & Dev. Admin. of City of N.Y., 31 NY2d 184, 191 [1972]). Here, however, petitioners challenge the constitutionality of BFSA’s action as applied to their members, not the constitutionality of the underlying state legislation that created BFSA and authorized it to impose a wage freeze if necessary (see Public Authorities Law § 3858 [2] [c]), and “an article. 78 proceeding is generally the proper vehicle to determine whether a statute, ordinance, or regulation has been applied in an unconstitutional manner” (Kovarsky, 31 NY2d at 191; see e.g. Dimiero v Livingston-Steuben-Wyoming County Bd. of Coop. Educ. Servs., 199 AD2d 875, 877 [1993], lv denied 83 NY2d 756 [1994]; Goodman v Regan, 151 AD2d 958, 959-960 [1989]). Further, although a CPLR article 78 proceeding is not the proper vehicle to challenge a legislative act (see Matter of Frontier Ins. Co. v Town Bd. of Town of Thompson, 252 AD2d 928, 929 [1998]), it is the customary procedural vehicle for review of administrative determinations (see Solnick, 49 NY2d at 231). Here, BFSA’s action in imposing the wage freeze was administrative rather than legislative given “ ‘its individualized application, limited duration, and informal adoption, [i.e.], resolution by the governing body’ ” (Bennett Rd. Sewer Co., 243 AD2d at 66, quoting International Paper Co. v Sterling Forest Pollution Control Corp., 105 AD2d 278, 282 [1984]; see Town of Webster v Village of Webster, 280 AD2d 931, 933 [2001]; cf. Frontier Ins. Co., 252 AD2d at 930). Thus, the court properly treated the proceeding as one pursuant to CPLR article 78. The contention of petitioners that their time to commence the proceeding should be extended in the interest of justice pursuant to CPLR 306-b is raised for the first time on appeal and is therefore not properly before us (see Moss v McKelvey, 32 AD3d 1281, 1283 [2006]; Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]). In any event, that contention is without merit. Present—Scudder, EJ., Hurlbutt, Smith, Lunn and Green, JJ.

Appeal from a decision of the board which established an accident on September 29, 1954 and found a permanent disability. The same employer is involved but different carriers for the different accidents. Claimant, 66 years old, worked as a dishwasher for the employer for approximately 10 years. He suffered a back injury in May, 1954, which is not disputed. In June, 1955, he filed a claim for an accident alleged to have happened September 29, 1954. He testified that while lifting a garbage can he felt a pain in his back and that he reported the incident to his supervisor who sent him to a medical clinic. He was further substantiated by a fellow employee who stated he heard him yell “ouch” and drop the can. The board found such evidence sustained the happening of an accident in September, 1954. The claimant had suffered for a long time from an arthritic spine condition and after the May, 1954 accident it was determined he had a lumbar sacral strain. There was medical testimony that whereas before the September accident the claimant had suffered from a sciatic syndrome, following that accident there was a protrusion of the disc which directly caused the resulting disability. Another doctor testified that although claimant had a degenerative back condition, both accidents contributed to the disability and that the September accident was the final insult to a previously weakened ligament. The carrier’s doctor ascribed his back pathology to advanced osteoarthritie changes but stated lifting would increase the severity of the symptoms to a greater degree. We have previously discussed back injuries and the ever present problem in such eases of what constitutes an industrial accident, an aggravation or some other association with back pathology. (Matter of Hogan v. Weldmaster Co., 11 A D 2d 557; Matter of Britton v. Ruberoid Co., 12 A D 2d 566.) The present facts are similar to those in Matter of Giordano v. Hudson Dairy Co. (6 A D 2d 936) where a claimant with a previously injured back stepped off a curb, experienced pain, and was found to have suffered an accident. The medical testimony is likewise similar where following the accident there was a herniated intervertebral disc not present before. We are satisfied there is sufficient testimony to establish the happening of an accident on the date in question and while there was a conflict in the medical testimony, the board having found in favor of the claimant, the testimony adduced by him was sufficient to constitute substantial evidence. As to the award of compensation from September 29, 1954 to November 26, 1958, a report filed by the claimant’s doctor dated November 17, 1958 stated that he was permanently disabled and unable to do any work at that time. The employer’s report of accident stated claimant’s weekly salary was $50, which was likewise verified by him and not disputed by the employer or its carrier. Such testimony was sufficient for the purpose of establishing a wage base. The board’s finding directed a continuance of payment for “ reduced earnings ” although it found and stated in its finding he was totally disabled during the period in issue. This apparently was an error in terminology which in no way affected the determination of the board. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered September 3, 2003. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree, assault in the second degree and grand larceny in the third degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed as a matter of discretion in the interest of justice and on the law and a new trial is granted. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [4]), assault in the second degree (§ 120.05 [6]) and grand larceny in the third degree (§ 155.35). Although defendant failed to preserve for our review his contention that the People improperly bolstered the identifications of defendant by two witnesses, we nevertheless exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). At trial, two eyewitnesses identified defendant as the perpetrator of the crime, and further testified that they had previously identified him in lineups. The People thereafter elicited testimony from a police investigator that the two witnesses identified defendant as the perpetrator after viewing the lineups. As the People correctly concede, the investigator’s testimony improperly bolstered the identifications of defendant by the eyewitnesses (see People v Holt, 67 NY2d 819, 821 [1986]). The sole contested issue at trial was the identification of the perpetrator, and the evidence of identification is not overwhelming. We therefore reverse the judgment and grant a new trial. Further, we note that defendant may move to suppress the identifications prior to the new trial. The verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We have considered the remaining contentions of defendant, including *1204those raised in his pro se supplemental brief, and conclude that they are without merit, or moot in light of our determination. Present—Martoche, J.P, Smith, Centra, Lunn and Fahey, JJ.

Appeal from so much of an order of the Supreme Court, Special Term, Albany County, as granted defendant’s motion to examine plaintiff administratrix before trial as to the assets of the estate and required her to produce all records and papers concerning the administration of the estate and the assets thereof. The complaint alleges separate causes of action for negligence and breach of contract arising out of defendant automobile liability insurance carrier’s unsuccessful defense of an action brought against plaintiff’s intestate; and seeks to recover, with other damages, the sum of $12,000, which is the amount of the judgment in the motor vehicle accident action remaining unsatisfied after payment by the carrier of the amount of the policy limit. In plaintiff’s action brought in United States District Court for the same cause, plaintiff apparently agreed to submit to a pretrial examination on the same subjects but that court denied an examination. An opinion (not reported), per Folet, J., noted that the order now before us (and another with which we are not now concerned) had been made and were on appeal and held that, “The State examinations should be completed, the appeals there prosecuted or withdrawn, before this Court will entertain and decide the type motions now presented.” In this action, however, plaintiff resists examination on the ground that the evidence sought by defendant is not “material and necessary” (Civ. Prac. Act, § 288), since, according to her contention, her right to recover the full amount of her claim is not dependent upon proof that she has paid the judgment or that the assets of the estate are sufficient to permit of its enforcement. There appears to be no reported case in New York decisive of the question whether such payment or ability to pay is prerequisite to recovery of damages more than nominal. The authorities in other jurisdictions are divided. (See, e.g., Schwartz v. Norwich Union Ind. Co., 212 Wis. 593; contra, Dumas v. Hartford Acc. & Ind. Co., 92 N. H. 140.) In addition to this primary question bearing on damages, and the estate’s payment of, or ability to pay the judgment, defendant poses collateral questions for examination, such as the status of the estate proceedings here and those, if any, in New Jersey, the State of domicile; and the status of the judgment and of any proceedings to enforce it, here and in New Jersey, if judgment has been entered there. We consider that the order was properly granted in the exercise of Special Term’s discretion, and in consonance with the *708liberal practice obtaining in New York; and that the court was warranted in declining to pass upon the question of law respecting damages as premature. The examination sought seems to us proper, as well as material and necessary, to aid preliminarily in the establishment of the factual basis upon which the legal issues may ultimately be defined and resolved. Upon applications of this nature, the courts will not ordinarily attempt to adjudicate the merits. (Cf. Ganni v. Stallman, 200 App. Div. 485; Bloede Co. v. Devine Co., 211 App. Div. 180.) We find nothing to the contrary in Matter of Rothchild (271 App. Div. 582, affd. 298 N. Y. 538) as there the naked legal question of construction of the language of a will was the sole issue of the proceeding as of the motion. Order unanimously affirmed, without costs.

This is an appeal from an order of Special Term, Albany County, which denied a motion to drop Clemen E. Brown as a party; denied motions for a change of venue and designated a Referee to hear and determine the whole issue, except accounting. The motions arose out of proceedings brought by petitioners John D. Young and Clemen E. Brown under article 79 of the Civil Practice Act praying for the construction of a declaration of trust and to make such an adjudication as may be appropriate. Clemen E. Brown, a resident of Albany County and a member of the board of managers of the Watson Homestead Foundation and John D. Young as executive director and in several other capacities under the trust instrument brought separate proceedings in Supreme Court, Albany County, for construction of the trust instrument and for reinstatement to their positions from which the board of trustees had purported to remove them. The two proceedings were heard together before Christopher Hefebrnan, Official Referee, who ordered them reinstated. This court on appeal reversed and remitted to Special Term to bring in the Methodist Conference and the Painted Post Methodist Church as necessary parties. The amended petitions praying for a construction of the declaration of trust came on before Justice Deckelman at *709Albany Special Term. There was a cross motion for an order dropping Brown as a party and a motion to change the venue from Albany to Steuben County. In our view Special Term was justified in refusing to drop Brown from the Young proceeding. Here two years after the institution of the Young proceeding, after a trial of both proceedings together, without objection as to parties, this belated motion is made to drop Brown from the Young proceeding, obviously to support the motion for change of venue. In our opinion Brown as a member of the board of managers is a necessary and proper party to this proceeding, vitally interested- in the construction of this declaration of trust. Indeed under subdivision 2 of rule 102 of the Rules of Civil Practice the court could have deferred the• determination of this motion until the trial. In holding that Special Term was correct in refusing to drop Brown as a party, of course, the motion to change venue falls as Brown is a resident of Albany County, but beyond that, it should be kept in mind that Brown’s proceeding is pending in Albany County. There was no appeal in that proceeding. The same issues of law and fact apply to both proceedings. At this late date after the proceedings have, been tried together once in Albany County, without objection as to venue, an effort is made to change the venue in one of the actions which would result in separate trials of the same issues in two counties. With the volume of work before our courts such a position is difficult to sustain. Order unanimously affirmed, with costs to petitioner-respondent and respondent Brown against respondents-appellants.

Appellants contest the finding of the board that the employer did not have knowledge of any permanent disability within the meaning of subdivision 8 of section 15 of the Workmen’s Compensation Law. Claimant worked for the employer herein for a number of years and on various occasions was absent from work because of a back condition, all of which the employer had knowledge. In April, 1954 she received a compensable back injury which necessitated her absence from work for a year. On April 6, 1955 she returned to work and after two days was again absent. Upon her return she worked until April 19, 1955 when she suffered another back injury which condition was thereafter diagnosed and found to be a permanent partial disability. On April 18—one day prior to the accident—her attending physician for the first time submitted a report stating her disability resulting from the accident of April, 1954, was permanent. In all of his prior reports he had stated as to whether the condition was permanent as “ indefinite ”. In a report dated May 21, 1954 he stated that there was a “ possible herniated disc ”. From the record it is apparent that for a long time prior to April, 1954, the claimant suffered from a chronic back condition and that the employer had knowledge of such condition. The query then concerns itself with whether or not the employer when he rehired the claimant in April, 1955, had knowledge that the back condition was permanent. This is not the type of injury which of itself puts the employer on notice of permanency without the -necessity of medical proof. The records of this court are replete with back injury cases where even with a disc condition there is no finding of a permanent condition. A disc, if present, is often removed by operation without permanency. The record here, while somewhat close on notice, seems to convey the impression that prior to April, 1955, the claimant was suffering from a recurring back condition which periodically and over a long period of time caused temporaiy disability and which condition had been diagnosed as a severe back strain. While it might be argued that the record as a whole was sufficient to put the employer on notice when she returned to work in 1955, the weight of the evidence was a factual *710determination for the consideration of the board and having made its finding that there was not notice to the employer we find it is supported by substantial evidence. Decision of Workmen’s Compensation Board unanimously affirmed, with costs to the Special Fund against appellants.

Appeal from an order and judgment (one paper) of the Supreme Court, Jefferson County (Hugh A. Gilbert, J.), entered February 16, 2006 in a proceeding pursuant to Mental Hygiene Law article 81. The order and judgment denied the petition. It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the petition is granted and the matter is remitted to Supreme Court, Jefferson County, for further proceedings in accordance with the following memorandum: Petitioner commenced this proceeding pursuant to Mental Hygiene Law article 81 seeking the appointment of a guardian for the personal needs and property management of respondent, one of its patients. The petition alleges that respondent suffers from disorientation as to time and place, paranoid ideation, and *1205poor concentration, insight and judgment. The petition further alleges that respondent requires supervision, coaching and assistance with the activities of daily living. We agree with petitioner that Supreme Court erred in denying the petition on the ground that petitioner failed to propose a person or corporation available and willing to act as guardian. The court relied in part on the testimony of a representative from the Jefferson County Department of Social Services (DSS), who testified that DSS was not willing to accept the guardianship of respondent because he did not know if DSS could “adequately or appropriately meet every one of’ respondent’s needs. In rendering its decision, the court noted that respondent “need[ed] help,” but there was apparently no one available to provide that help. The court erred in concluding that the absence of a proposed guardian in the petition requires its dismissal. Section 81.08 (a) (12) of the Mental Hygiene Law provides that the petition shall include, inter alia, the name of the person or persons, “if any, proposed as guardian and standby guardian” (emphasis added), and thus does not require that the petition include a proposed guardian. The focus of article 81 of the Mental Hygiene Law is to provide a means of obtaining a judicial determination that the subject of the petition is incapacitated with respect to his or her personal needs and/or property management and thereby to provide assistance to that person in managing those needs (see § 81.01). Here, the record contains clear and convincing evidence establishing that respondent is incapacitated within the meaning of Mental Hygiene Law § 81.02 (b) and that she is thus entitled to the appointment of a guardian for her personal needs and property management. We note that the fact that petitioner is also a creditor of respondent does not automatically disqualify it from serving as guardian (see § 81.19 [e]). We therefore reverse the order and judgment, grant the petition and remit the matter to Supreme Court for the appointment of a guardian. Present—Martoche, J.E, Smith, Centra, Lunn and Fahey, JJ.

Appeal from a judgment of the Court of Claims dismissing the claim for wrongful death. The claimant’s deceased husband was admitted to the Rockland State Hospital in 1953 and his condition was diagnosed as dementia praecox, paranoid type. Routine physical examinations were performed upon him including blood and urine examination, temperature, blood pressure, pulse and a chest X ray or photofluorogram. These together with his past history revealed nothing out of the ordinary as to physical condition and it was decided that he should be given electrotherapy or shock treatments. He was given 13 of these treatments and upon receiving the 14th he died. An autopsy revealed the presence of a diseased heart and it is undisputed that the shock treatment imposed upon the decedent’s heart condition caused his death. The claim for wrongful death is based on the alleged negligence in failing to discover the heart condition before subjecting the decedent to shock treatments. The claimant produced the testimony of Dr. Barnett, a specialist in radiology, who was of the opinion that the X ray taken of the decedent showed a moderately elongated aorta, suggested slight left ventricular enlargement and hypertrophy and thus was the picture of a diseased heart. Dr. Golb, a psychiatrist, testified that he would not administer shock treatments to a patient with a heart condition because of the danger of death resulting and that the decedent could have been cured of his mental condition without such treatment. -However, he stated that before giving shock treatments he only examines the patient’s heart, listens to the heart sounds and takes the blood pressure. Dr. Edson, a roentgenologist, testified for the State that the X ray showed no evidence of an enlargement of the heart shadow and showed a normal heart. He explained that the X ray or photofluorogram taken here is primarily for examining the lungs and that it gives a somewhat distorted picture of the size of the heart although a determination can be made from it whether there is any heart enlargement. Dr. Lewis, a cardiologist, testified that on the basis of the physical examination and X ray of the decedent he would have recommended the use of shock treatments and he stated that the method used to ascertain the decedent’s heart condition was the proper and standard method. As to the condition of decedent’s heart, as shown by autopsy, he stated that such could exist anatomically without outward manifestations, and he was of the opinion that the X ray showed no heart condition. The attending psychiatrist, Dr. Alexander, testified that the decision to give the decedent shock treatments was arrived at under normal procedures, that after the decision was made he checked the decedent’s history and the records on his physical condition including the X ray and he found no indication of any heart condition. He also had a summary of decedent’s medical condition from Bellevue Hospital which gave no indication of any heart condition. Indeed the claimant herself gave no history of the decedent having any illness suggestive of heart trouble. Dr. Alexander stated that the accepted procedure, in that as well as other hospitals, was used to determine the condition of the decedent’s heart and that electrocardiograms were not taken as a matter of routine unless the patient was over 45, the decedent being 38. The court below found that the general physical examination of decedent disclosed no pathology of the heart, that the claimant did not establish by a fair preponderance of the evidence that the X ray showed any abnormality of the heart or that there was anything indicating that an electrocardiogram should have been taken and that decedent’s death was not shown to have been *711due to any negligence of the State in decedent’s care and treatment. The alleged negligence was the failure to discover decedent’s heart condition. Testimony was produced by the State as indicated above that the procedure used here in examining the decedent was the correct and accepted practice and no evidence to the contrary was produced by the claimant. The only other possible basis for a finding of negligence is the failure to correctly interpret the X ray. A question of fact was presented as to the correct interpretation of the X ray with the testimony of claimant’s expert being contradicted by all three of the State’s medical witnesses on this point. Even if the court had found that the X ray should have been interpreted as showing signs of a heart condition it is doubtful that a judgment for claimant could be based on such finding since such an error in interpretation would no doubt be a “mere error in judgment” for which liability would not attach. The court below, in our opinion, correctly found that the claimant failed to show that decedent’s death resulted from negligence by the State in his care and treatment. Judgment unanimously affirmed, without costs.

Appeal from an order of the Supreme Court, Erie County *1206(Christopher J. Burns, J.), entered January 30, 2006. The order granted plaintiffs application for an increase in the amount of child support. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the amount of child support awarded and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: By order to show cause, plaintiff sought an increase in the amount of child support set forth in the parties’ separation agreement, which was incorporated but not merged in the parties’ judgment of divorce. Following a hearing, Supreme Court calculated the combined incomes of the parties and determined that defendant’s income was 95% of the combined parental income. By the order in appeal No. 1, the court increased defendant’s child support obligation from approximately $2,000 per month to $7,000 per month and, by the order in appeal No. 2, the court awarded plaintiff counsel fees in the amount of $15,377.50. With respect to appeal No. 1, defendant failed to preserve for our review his contention that the court was required to determine his income based on his income tax returns for the years 2003 or 2004 inasmuch as he did not submit those documents to the court (see generally Leroy v Leroy, 298 AD2d 923 [2002]; Matter of Crosby v Hickey, 289 AD2d 1013 [2001]). In any event, defendant’s contention lacks merit because a court is not required to use reported income but, rather, may base its determination on a party’s actual income and ability to support the children (see Matter of Graves v Smith, 284 AD2d 332 [2001]; Murphy-Artale v Artale, 219 AD2d 587 [1995]). Furthermore, we reject the contention of defendant that the court erred in its calculation of his income and the parties’ combined parental income. The record establishes that, at the outset of the hearing, defendant stipulated to the amount of his average income for the three years preceding the filing of the order to show cause, and thus the court properly utilized that amount as defendant’s income for child support purposes. The court also properly calculated the parties’ combined parental income utilizing that amount and the amount of plaintiff’s income as reflected in plaintiff’s income tax returns. Based upon those amounts, plaintiff’s pro rata share of the parties’ combined income is 5.6% and defendant’s share is 94.4%. We are unable to review defendant’s further contention that the court erred in determining the amount of child support awarded to plaintiff. Although the court articulated a proper *1207basis for refusing to apply the formula set forth in the Child Support Standards Act (CSSA) (Domestic Relations Law § 240 [1-b]) to the combined parental income in excess of $80,000, the court failed to set forth the findings and calculations to support its child support award of $7,000 per month (see Matter of Cassano v Cassano, 85 NY2d 649, 654-655 [1995]; Matter of Caroleitha C. v Samuel David R., 32 AD3d 1301 [2006]; Matter of Malecki v Fernandez, 24 AD3d 1214 [2005]; Matter of Gianniny v Gianniny, 256 AD2d 1079, 1080 [1998]). In the absence of the appropriate findings and calculations, we are unable to assess whether the court gave due consideration to the statutory factors (see Caroleitha C., 32 AD3d at 1303). We note in addition that, as the parties correctly contend, the court erred in determining the extent to which the award should be adjusted based upon a split custody situation that arose after one of the parties’ three children left plaintiffs home in order to reside with defendant. We therefore modify the order in appeal No. 1 by vacating the amount of child support awarded, and we remit the matter to Supreme Court to determine defendant’s child support obligation in compliance with the CSSA. With respect to the order in appeal No. 2, defendant failed to preserve for our review his contention that the parties’ separation agreement was a bar to plaintiffs applications for counsel fees (see Russo v Russo, 305 AD2d 486, 486-487 [2003]; Fell v Fell, 213 AD2d 374, 374-375 [1995]; Laureano v Mayo, 189 AD2d 614 [1993]). We reject defendant’s further contention that the doctrine of law of the case bars further litigation of the issue of counsel fees (see generally Matter of Harmon v Kern, 159 AD2d 502, 503 [1990]; Matter of D’Alimonte v Kuriansky, 144 AD2d 737, 738-739 [1988]). Nevertheless, we agree with defendant that a hearing is required with respect to “the extent and value of the services rendered” (Ott v Ott, 266 AD2d 842, 842 [1999]; see Gentile v Gentile, 31 AD3d 1158, 1159 [2006]). We therefore modify the order in appeal No. 2 by vacating the amount of counsel fees awarded, and we remit the matter to Supreme Court for a hearing on that issue. We have considered defendant’s remaining contentions and conclude that they are without merit. Present—Martoche, J.E, Smith, Centra, Lunn and Fahey, JJ.

Appeal by the Special Fund for Reopened Cases under section 25-a from a decision and award of the Workmen’s Compensation Board. Appellant has limited this appeal, taken upon an abbreviated record, “ to the issue of whether or not the claimant’s refusal to undergo surgery for his right hernia is unreasonable”, and we consider no-other question. The three physicians to testify advised the operation. It appeared, however, that claimant’s hernia was operated upon in 1949, recurred in 1950, was operated upon in that year and recurred in 1951. The operating surgeon said that the second recurrence was “because of intrinsic weakness in local tissues at operative site”. Claimant said he would submit to an operation if “ they will guarantee it will not return * * * I’ve had too many doctors tell me it’s impossible for me to have a successful hernia operation.” Of course, neither the request for a “ guarantee ” nor hearsay evidence of medical advice satisfies the legal requirements in cases such as this, but other evidence in -the record supports the board’s decision. The attending surgeon said, “Ton can’t make any promise as to the tissues holding, it would be a case of the tissues holding ”. Another physician said, “ If he was past 60, I would tell him to wear a truss for the rest of his life and be happy ”, and it may not be said that the difference of less than two years between that and claimant’s actual age rendered claimant’s doubt unreasonable. This same physician, referring to the condition, said “ the chances are it could be cured in the proper hands ”; and another limited his advice to an operation by a surgeon “ especially qualified in the repair of recurrent herniae ”, the manner of claimant’s selection of such not being made entirely clear. This is not, as in the decisions cited by appellant, the case of an operation or diagnostic procedure advised for the first time and declined merely because of unwarranted fear of an operation (Palloni v. Brooklyn-Manhattan Tr. Corp., 215 App. Div. 634; Matter of Tillow v. Daystrom Corp., 273 App. Div. 1045; Matter of Peasley v. Wendling Iron Works, 277 App. Div. 821, 277 App. Div. 622). In Matter of Long v. Lotmar (277 App. Div. 822), claimant’s refusal of surgery was based “ on the failure of the previous surgical procedures, and the previous medical opinion that nonsurgieal treatment should be followed” and, in affirming the board’s finding that such refusal was not unreasonable, this court held: “ In such a debatable field, it could not possibly be said as a matter of law that the decision of the board, in its turn, is also unreasonable.” Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.

*1208Appeals from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered April 14, 2006. The order, insofar as appealed from, granted plaintiffs’ motion for partial summary judgment on liability under Labor Law § 240 (1) and denied defendants’ cross motions for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the cross motion of defendant William Metrose Ltd. Builder/ Developer, dismissing the complaint against it, granting in part the cross motion of defendant Robert Nolan Drywall, LLC, dismissing the Labor Law § 240 (1) and § 241 (6) causes of action against it and dismissing plaintiffs’ motion and as modified the order is affirmed without costs. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Timothy O’Connor (plaintiff) when the ladder on which he was standing while performing drywall finishing work slipped, and he fell to the ground. Defendant William Metrose Ltd. Builder/Developer (Metrose) was the owner of the property, and defendant Robert Nolan Drywall, LLC (Drywall, LLC) was the diywall contractor. Plaintiff signed an “Indemnification Statement,” pursuant to which he agreed to indemnify the owner and contractor for any claim “arising out of, in connection with, or as a consequence of the performance of the work, and/or any acts or omissions of the subcontractor.” Supreme Court, inter alia, granted plaintiffs’ motion for partial summary judgment on liability on the Labor Law § 240 (1) cause of action and denied the cross motions of defendants for summary judgment dismissing the complaint against them based on the indemnification statement. The court erred in denying the cross motion of Metrose and in denying those parts of the cross motion of Drywall, LLC for summary judgment dismissing the Labor Law § 240 (1) and § 241 (6) causes of action against it. We therefore modify the order accordingly. The indemnification statement required plaintiff to indemnify Metrose, the owner, and Drywall, LLC, the contractor (see Brown v Two Exch. Plaza Partners, 76 NY2d 172, 178 [1990]). Contrary to the court’s determination, the *1209indemnification statement was not too vague to be enforceable despite its failure to set forth any particular job site or duration (see Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427, 433 [2005]). Pursuant to General Obligations Law § 5-322.1, however, “a party to a contract who is a beneficiary of an indemnification provision must prove itself to be free of negligence; to any extent that the negligence of such a party contributed to the accident, it cannot be indemnified therefor” (Reynolds v County of Westchester, 270 AD2d 473, 474 [2000]). Metrose and Drywall, LLC established as a matter of law that the Labor Law causes of action are encompassed by the indemnification statement, and Metrose also established that the common-law negligence cause of action against it is encompassed by that statement (see Kennelty v Darlind Constr., 260 AD2d 443, 446 [1999]). We further conclude, however, that there is an issue of fact whether the common-law negligence cause of action against Drywall, LLC is encompassed by the indemnification statement, and the court therefore properly denied that part of its cross motion with respect to that cause of action. Unlike Metrose, Drywall, LLC failed to establish that it was not negligent or that its negligence, if any, did not contribute to the accident, and there is a further issue of fact concerning the extent to which Drywall, LLC exercised supervision and control over plaintiffs work (see Farduchi v United Artists Theatre Circuit, Inc., 23 AD3d 610, 612 [2005]). In view of our determination, we dismiss plaintiffs’ motion as moot. We therefore further modify the order accordingly. Present—Martoche, J.E, Smith, Centra, Lunn and Fahey, JJ.

Appeal from death benefit award in a heart injury case. The decedent, 51 years of age, worked for the employer as a window washer and when the weather was inclement worked in the storeroom of the hotel doing a wide assortment of jobs. He had a pre-existing cardiac condition. On February 27, 1958 he was working in the storeroom moving lamps, tables and other furniture with one of his fellow employees. He first complained of pain when moving a table weighing about 20 pounds but failed to heed the suggestion of a coemployee that he see a doctor in the hotel and instead continued to work. About a half hour thereafter whilthey were moving a 70-pound table from the storeroom to a different floor and after leaving the elevator and while lifting the table weighing approximately 70 pounds he collapsed and shortly thereafter died. The facts present a preexisting heart disease case where at the time of the heart accident the worker was doing something of a strenuous nature while performing his normal work. Claimant’s doctor testified that the work he was doing “was definitely related to his demise ”, The doctors for the carrier disagreed and said it was due to the natural progression of a pre-existing heart condition. One of the doctors summarized by saying it was speculation to say that the work was associated with the fatal attack. In any event the issue was factual and therefore within the province of the board. The medical testimony differed here from that in Matter of Burris v. Lewis (2 N Y 2d 323), where an autopsy was performed and failed to disclose any recent heart injury and there was no evidence of a coronary thrombosis or occlusion. Matter of Stang v. Pechman & Co. (7 A D 2d 245) differs as there the nature of the work—assistant to the president — did not require any unusual physical effort or strain. The facts in this case are more closely associated with the factual issues in Matter of Carlin v. Colgate Aircraft Corp. (276 App. Div. 881, affd. 301 N. Y. 754). Decision of the Workmen’s Compensation Board unanimously affirmed, with costs.

Appeal from an order of the Supreme Court, Monroe County (William E Polito, J.), entered November 18, 2005 in a personal injury action. The order, among other things, denied plaintiffs motion to set aside the jury verdict. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff appeals from an order denying her motion pursuant to CPLR 4404 to set aside the jury verdict *1210finding that Darrell G. Baumer (defendant) was not negligent and for a directed verdict or, in the alternative, a new trial. Plaintiff commenced this action seeking damages for injuries she sustained when a vehicle driven by plaintiff collided with a tractor-trailer driven by defendant and owned by defendant Mapletree Transportation, Inc. The impact occurred when plaintiff attempted to pull onto the roadway from the shoulder while defendant was making a right-hand turn into a driveway. A witness to the accident testified at trial that the right turn signal on defendant’s truck was activated as the truck swung wide to the left to make the right-hand turn into the driveway. Another eyewitness testified that, while defendant’s truck was turning, plaintiff’s vehicle was on the shoulder of the road alongside defendant’s truck, and the eyewitness observed plaintiffs vehicle colliding with the truck. Contrary to plaintiffs contention, Supreme Court properly denied plaintiffs posttrial motion. There is a valid line of reasoning and permissible inferences based on the evidence at trial that could lead rational persons to the conclusion that defendant was not negligent, and thus plaintiff was not entitled to a directed verdict (see Guthrie v Overmyer, 19 AD3d 1169 [2005]). Nor can it be said that the verdict is against the weight of the evidence, because the evidence does not “so preponderate in favor of plaintiff that the verdict could not have been reached upon any fair interpretation of the evidence” (DiSalvo v Hiller, 2 AD3d 1386, 1387 [2003]; see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Miller v Reynolds, 298 AD2d 836, 837 [2002]). Present—Martoche, J.P., Smith, Centra, Lunn and Fahey, JJ.

Proceeding under article 78 of the Civil Practice Act to review a determination of the State Tax Commission which affirmed assessments of unincorporated business taxes against petitioners under article 16-A of the Tax Law. The determination covers two periods, one from June 1, 1951 to August 31, 1951, and the other for the fiscal year ending August 31, 1952. The sole issue on this appeal is whether petitioners were engaged in the practice of a profession within the meaning of section 386 of the Tax Law. Petitioners were partners, and their activities have been characterized as “ Distribution and Materials Handling Consultants ” and “ Consulting Management Engineers.” They hold themselves out as experts in materials handling, warehousing, plant and management layout, industrial packaging, distributions and transportation system, and other related subjects. While they employed engineers their activities were not confined to engineering. It is impractical here to describe petitioners’ activities in detail, but they acted somewhat in the capacity of efficiency experts in the field of transportation and storage, performing services for business concerns with a view to reducing certain operating expenses and thereby increasing profits. There is no doubt that by virtue of study and experience petitioners were able to aid business concerns in a particular field. However, the mere fact that they may be experts on some subjects does not necessarily mean that they are practicing a profession. The same arguments advanced by petitioners have been urged upon this court many times before. Some of the recent cases are: Matter of Sundberg v. Bragalini (7 AD 2d 15, motion for leave to appeal denied 6 N Y 2d 705); Matter of McCormick v. Bragalini (8 A D 2d 885) and Matter of Kormes v. Murphy (9 A D 2d 1003, motion for leave to appeal denied 8 N Y 2d 706). Other cases are cited therein. This case is similar in many respects to the McCormick case, wherein the tax was assessed against one who described himself as a “management consultant, management engineer and consulting engineer ”, Language used in some of the *714above-cited cases is appropriate here. For instance, in the Sundberg case we said (p. 19): “ The advantageous utilization of professional knowledge in a business does not, of course, necessarily constitute the practice of a profession.” In the McCormick case we said: “It has been held in a number of cases that it was never the legislative intent and purpose of the exemption clause to create professional exemptions to consultants who undertake to advise management as to its business or industrial affairs [citing eases].” The State Tax Commission has held that petitioners’ activities are within the field of business itself. The evidence supports such a conclusion, and we do not think that the commission was required to find that petitioners were practicing a profession. Determination confirmed, with $59 costs.

Appeal from an order of a Special Term, Supreme Court, Sullivan County. Appellant husband has been directed by the court at Special Term to pay $35 a week temporary alimony for the support of his wife and a young infant child; and $359 counsel fees in this separation action. Although he complains of the order for $359 counsel fees, the defendant’s affidavit before the Special Term stated that the $359 sought for this purpose was “ extremely reasonable ” and “ consistent with my financial condition ”. The right to temporary alimony is demonstrated on the record. Defendant admits leaving plaintiff at the place where the parties lived together and not supporting her thereafter. Whether she should have moved with him as the husband says she should; or whether she was given no opportunity and there was just a plain abandonment, are issues for the trial. There is some difference between the parties as to the husband’s earnings. The wife says he earns $99 a week; the husband says this is only in the Summer season and in the Winter he earns $69. Counsel has attached an affidavit to his brief which was not before the court at Special' Term and which is no part of the record. If the actual earnings of defendant do not warrant $35 a week, this can be demonstrated at the trial which should be held at an early date. If no trial has been had at the end of the next term in Sullivan County, attributable to plaintiff, defendant may apply for a modification of the order as to temporary alimony. Order unanimously affirmed, without costs.