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*1337Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered August 5, 2003. The judgment convicted defendant, upon his plea of guilty, of manslaughter in the first 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, upon his plea of guilty, of manslaughter in the first degree (Penal Law § 125.20 [1]). We reject the contention of defendant that he did not validly waive his right to appeal. Although no “ ‘particular litany during an allocution [is required] in order to obtain a valid guilty plea in which defendant waives a plethora of rights,’ including the right to appeal” (People v Gilbert, 17 AD3d 1164, 1164 [2005], lv denied 5 NY3d 762 [2005], quoting People v Moissett, 76 NY2d 909, 910-911 [1990]), “trial courts [must] ensure that defendants understand what they are surrendering when they waive the right to appeal” (People v Lopez, 6 NY3d 248, 256 [2006]). Here, County Court explained to defendant the significance of the waiver of the right to appeal, and “[defendant's responses to [the c]ourt’s questions unequivocally established that defendant understood the proceedings and was voluntarily waiving the right to appeal” (Gilbert, 17 AD3d at 1164). The valid waiver by defendant of the right to appeal encompasses his challenge to the factual sufficiency of the plea allocution with respect to his intent to commit manslaughter and a possible justification defense (see People v Halston, 37 AD3d 1144 [2007]). In addition, by failing to move to withdraw his plea or to vacate the judgment of conviction, defendant failed to preserve that challenge for our review (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Davis, 37 AD3d 1179 [2007]; People v Farnsworth, 32 AD3d 1176 [2006], lv denied 7 NY3d 867 [2006]). In any event, the court conducted a sufficient inquiry to ensure that there was no justification defense and that the plea was knowingly, voluntarily and intelligently entered (see Lopez, 71 NY2d at 666; Davis, 37 AD3d 1179 [2007]). By pleading guilty, defendant forfeited his contention that he was denied the right to testify before the grand jury (see People v Sachs, 280 AD2d 966, 966-967 [2001], lv denied 96 NY2d 834 [2001], 97 NY2d 708 [2001]; see generally People v Hansen, 95 NY2d 227, 230-232 [2000]). Additionally, that contention is encompassed by the valid waiver of the right to appeal (see People v Simms, 269 AD2d 788 [2000], lv denied 94 NY2d 952 [2000]), as is the contention of defendant that the court erred in refusing to suppress his statements to the police (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Rivera, 30 AD3d 1019 *1338[2006], lv denied 7 NY3d 870 [2006]). Finally, the valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see Lopez, 6 NY3d at 255; Rivera, 30 AD3d at 1019) and, in any event, we note that defendant received the bargained-for sentence. Present—Gorski, J.P., Martoche, Smith, Lunn and Pine, JJ.

Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered May 28, 2004. The judgment convicted defendant, upon a jury verdict, of criminal possession of stolen property in the fourth degree (two counts) and menacing in the second degree. It is hereby ordered that the case is held, the decision is reserved, and the matter is remitted to Monroe County Court for a hearing in accordance with the following memorandum: Defendant appeals from a judgment convicting him following a jury trial of two counts of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [5]) and one count of menacing in the second degree (§ 120.14 [1]). We agree with defendant that County Court erred in refusing to conduct a hearing on the issue whether defendant was competent to stand trial (see CPL 730.30 [1]). “ ‘[0]nce [the] court [made the] preliminary determination that . . . defendant may be incapacitated, the statutory steps [had to] be followed’ ” (People v Marasa, 270 AD2d 902, 902 [2000]; see People v Armlin, 37 NY2d 167, 172 [1975]; People v Weech, 116 AD2d 975, 976 [1986]; People v Lowe, 109 AD2d 300, 304 [1985], lv denied 67 NY2d 653 [1986]). Pursuant to CPL 730.30 (2), the court was required to “conduct a [competency] hearing upon motion therefor by the defendant” and, based on the court’s failure to do so, “defendant was deprived of his right ‘to a full and impartial determination of his mental capacity’ to stand trial” *1339(Marasa, 270 AD2d at 903, quoting Armlin, 37 NY2d at 172). “Where a meaningful reconstruction hearing can be held, it is the proper remedy for [the] violation of [CPL] article 730” (People v Bey, 144 AD2d 972, 973 [1988]), but we are unable to determine on the record before us whether a meaningful reconstruction hearing is feasible (see People v Arnold, 113 AD2d 101, 107-108 [1985]). We therefore hold the case, reserve decision and remit the matter to County Court for a hearing before a different judge to determine whether sufficient evidence may be developed to reconstruct defendant’s mental capacity at the time of trial and, if so, to determine whether defendant was competent to stand trial (see id. at 108). All concur, Smith, J., not participating. Present—Gorski, J.B, Martoche, Smith, Lunn and Pine, JJ.

Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.), rendered July 2, 2003. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him following a jury trial of criminal possession of a weapon in the second degree (Penal Law former § 265.03 [2]) and, in appeal No. 2, he appeals from a judgment convicting him, following the same jury trial, of murder in the second degree (§ 125.25 [1]). The verdict with respect to intentional murder is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The evidence presented at trial establishes that defendant had a motive to kill the victim and that he and a codefendant exited a vehicle with their guns drawn. Defendant shot the victim in the knee, and he and codefendant searched the victim for a gun. According to one of two statements given by defendant to the police, he knew that the codefendant intended to shoot the victim if they found a gun on his person, and defendant gave the gun to the codefendant after finding it on the victim’s person. The codefendant then “immediately” shot the victim in the head with a different gun. The jury thus was entitled to credit the theory of the prosecution that defendant shared the intent of his codefendant to kill the victim and intentionally aided him in carrying out that intent, and the jury was entitled to reject the theory of defendant that he was a mere bystander to the codefendant’s allegedly spontaneous act of homicide (see People v McKnight, 306 AD2d 546 [2003], lv denied 100 NY2d 596 [2003]; People v Johnson, 101 AD2d 684 [1984]; see also People v Middleton, 192 AD2d 740 [1993], lv denied 83 NY2d 913 [1994]; cf. People v Hayes, 117 AD2d 621, 622-623 [1986], lv denied 68 NY2d 668 [1986]). We further reject defendant’s contention that reversal is required based on Supreme Court’s failure to make the requisite inquiry with respect to defendant’s request for substitution of counsel. The record establishes that the court properly made a “minimal inquiry” to determine whether to grant defendant’s request and that defendant was afforded an ample opportunity to present good cause for a substitution but failed to do so (People v Sides, 75 NY2d 822, 825 [1990]; see People v Kearney, 24 AD3d 1105, 1107 [2005], lv denied 6 NY3d 814 [2005]; People v Walton, 14 AD3d 419, 419-420 [2005], lv denied 5 NY3d 796 [2005]). Finally, defendant failed to object to the court’s ultimate Sandoval ruling and thus failed to preserve for our review his contention that the court failed to consider and balance the appropriate Sandoval factors (see People v McMillon, 32 AD3d 1300 [2006], lv denied 7 NY3d 903 [2006]; People v Trammell, 28 AD3d 1219 [2006], lv denied 7 NY3d 795 [2006]). In any *1341event, defendant’s contention lacks merit (see People v Tirado, 19 AD3d 712, 713 [2005], lv denied 5 NY3d 810 [2005]). Present—Gorski, J.E, Martoche, Smith, Lunn and Pine, JJ.

Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), rendered April 20, 2005. The judgment convicted defendant, upon a jury verdict, of burglary in the second 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 upon a jury verdict of burglary in the second degree (Penal Law § 140.25 [2]). Contrary to defendant’s contention, the showup identification procedure, which was conducted within two hours after the burglary but only minutes after defendant was apprehended near the crime scene, was not unduly suggestive (see People v Rodriguez, 267 AD2d 61 [1999], lv denied 94 NY2d 924 [2000]; People v McBride, 242 AD2d 482 [1997], lv denied 91 NY2d 876, 943 [1997]). We similarly reject the contention of defendant that reversal is required based on a Brady violation, i.e., the People’s failure to disclose the photograph taken of him when he was arrested. “[I]t is well settled that evidence is not deemed to be Brady material when the defendant has knowledge of it,” and here the record establishes that defendant was aware that a photograph was taken of him at the *1342time of his arrest (People v Rodriguez, 223 AD2d 605, 606 [1996], lv denied 88 NY2d 1024 [1996]). Defendant further contends that the evidence of the burglary presented at trial impermissibly varied from the theory of burglary as charged in the indictment. We reject that contention (cf. People v Davis, 118 AD2d 795 [1986]). Finally, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and the sentence is not unduly harsh or severe. Present—Gorski, J.P, Martoche, Smith, Lunn and Pine, JJ.

Appeal from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), entered August 11, 2006. The order, insofar as appealed from, denied plaintiffs’ motion to strike defendants’ answer for spoliation of evidence. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Alia Hussain when her hand became caught on a wire flag holder attached to defendants’ mailbox. Plaintiffs moved to strike defendants’ answer for spoliation of evidence and submitted evidence establishing that defendants’ insurance company, to whom defendants had entrusted the wire flag holder, had either lost or destroyed it. Supreme Court properly denied plaintiffs’ motion and instead “granted [plaintiffs] the right to have Pattern Jury Instruction 1:77.1 read to the jury upon request.” “It is well established that the sanction of striking a pleading for nondisclosure pursuant to CPLR 3126 (3) ‘should be granted only where it is conclusively shown that the discovery default was deliberate or *1343contumacious,’ ” and plaintiffs failed to make that showing (Wetzler v Sisters of Charity Hosp., 17 AD3d 1088, 1089 [2005], amended on rearg on other grounds 20 AD3d 944 [2005]). We thus conclude that the court properly refused to strike the pleading and instead determined that a less severe sanction should be imposed (see id. at 1089-1090; Tommy Hilfiger, USA v Commonwealth Trucking, 300 AD2d 58, 60 [2002]). Present—Gorski, J.E, Martoche, Smith, Lunn and Pine, JJ.

Appeal from an order of the Supreme Court, Oneida County (Samuel D. Hester, J.), entered June 2, 2006. 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 unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed. Memorandum: Plaintiff contracted with defendant to perform construction work on certain schools but was unable to meet the scheduled completion date. By letter dated November 10, 2003, plaintiff requested a “Change Order for impact costs” incurred “due to the significant number of Change Orders,” resulting in the delays. By letter dated November 21, 2003, the architect for the project informed plaintiff that its “claim for additional compensation [was] rejected as untimely” pursuant to the terms of the parties’ contract and the Education Law. In March 2004 plaintiff filed a verified notice of claim pursuant to Education Law § 3813 (1), and in October 2004 plaintiff filed an amended verified notice of claim. Defendant moved for summary judgment contending, inter alia, that the statutory notices of claim were untimely. We conclude that Supreme Court erred in denying defendant’s motion insofar as it sought summary judgment dismissing the complaint on that ground. Contrary to the contention of plaintiff, its letter constituted a “claim” within the meaning of the parties’ contract. The claim for purposes of Education Law § 3813 (1) thus accrued when the architect, who pursuant to the terms of the contract had the final authority to grant or deny claims, unequivocally denied the claim by his letter dated November 21, 2003 (see Matter of Hawthorne Cedar Knolls Union Free School Dist. v Carey & Walsh, Inc., 36 AD3d 810 [2007]; Lenz Hardware, Inc. v Board of Educ. of Van HornesvilleOwen D. Young Cent. School Dist., 24 AD3d 1278 [2005]). *1344Plaintiffs notice of claim pursuant to Education Law § 3813 (1) was filed more than three months after that denial and thus was untimely. Inasmuch as the time within which to commence the action has expired, we cannot grant an extension of time to file a late notice of claim (see § 3813 [2-b]). Present—Gorski, J.P, Martoche, Smith, Lunn and Pine, JJ.

Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered August 23, 2006. The order, insofar as appealed from, denied in part defendant’s motion for a protective order and granted in part plaintiffs’ cross motion. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court properly denied in part defendant’s motion for a protective order and granted in part plaintiffs’ cross motion, directing the deposition of defendant’s representative and directing defendant to turn over its file on plaintiffs “up until the date . . . that [defendant] sent out the disclaimer” of coverage. The court is vested with broad discretion to supervise discovery and to determine what disclosure is material and necessary (see Gibson v Encompass Ins. Co., 23 AD3d 1047 [2005]; NBT Bancorp v Fleet/Norstar Fin. Group, 192 AD2d 1032, 1033 [1993]; see generally CPLR 3101 [a]). Here, we note in particular that defendant failed to meet its burden of establishing the applicability of various exemptions from disclosure to the documents sought by plaintiffs (see Doe v Poe, 244 AD2d 450, 451-452 [1997], affd 92 NY2d 864 [1998]). Present—Gorski, J.P, Martoche, Smith, Lunn and Pine, JJ.

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered June 15, 2006. The order, among other things, granted the motion of defendants Daniel J. Hughes and Deborah L. Kachelmeyer, also known as Deborah L. Hughes, for a protective order and to compel plaintiff to provide certain records to them. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action, individually and on behalf of her daughter, seeking damages for injuries sustained by her daughter as a result of her exposure to lead paint. Supreme Court properly granted the motion of Daniel J. *1345Hughes and Deborah L. Kachelmeyer, also known as Deborah L. Hughes (defendants), seeking, inter alia, to compel plaintiff to provide to defendants all “records and/or reports of neuropsychological or IQ testing” of her daughter prior to her daughter’s examination by defendants’ expert. “Absent an abuse of discretion, we will not disturb the court’s control of the discovery process” (MS Partnership v Wal-Mart Stores, 273 AD2d 858, 858 [2000]; see Andruszewski v Cantello, 247 AD2d 876 [1998]), and we perceive no abuse of discretion in this case (see generally 22 NYCRR 202.17 [b]). Defendants have conceded that they are not seeking reports that are generated by expert witnesses within the purview of CPLR 3101 (d) (1) (i), nor does the order on appeal encompass such reports. Present—Gorski, J.P., Martoche, Smith, Lunn and Pine, JJ.

Appeal and cross appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered May 12, 2006 in a personal injury action. The order granted the motion of defendant Valeo Cincinnati, Inc. for summary judgment dismissing the complaint and cross claims against it, granted the motion of third-party defendant Copar Corp. for summary judgment dismissing the third-party complaint against it and denied in part the motion of defendant-third-party plaintiff for summary judgment. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court. We add only that defendant Valeo Cincinnati, Inc. (Valeo) established its entitlement to judgment as a matter of law by establishing that its component parts were not defective and did not contribute to the accident involving plaintiff Donald E Schuler (see e.g. Jones v W + M Automation, Inc., 31 *1346AD3d 1099 [2007], lv denied 8 NY3d 802; Hothan v Herman Miller, Inc., 294 AD2d 333, 333-334 [2002]; Ayala v V & O Press Co., 126 AD2d 229, 234-235 [1987]). Although Valeo would periodically make repairs to its component parts on the machine at issue, we conclude that, in the absence of a routine maintenance contract or other ongoing relationship requiring Valeo to service the machine, Valeo had no duty to inspect the machine or to warn about defects “ ‘unrelated to the problem that it was summoned to correct’ ” (Rutherford v Signode Corp., 11 AD3d 922, 923 [2004], lv denied 4 NY3d 702 [2005]; cf. Dauernheim v Lendlease Cars, 238 AD2d 462, 463 [1997]). Present—Gorski, J.E, Martoche, Smith, Lunn and Pine, JJ.

Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered September 20, 2004. The judgment *1347convicted defendant, upon his plea of guilty, of sexual abuse in the first degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (Penal Law § 130.65 [1]), arising from his forcible sexual contact with a 14-year-old girl, and sentencing him to a 10-year term of probation. In appeal No. 2, defendant appeals from a judgment revoking the sentence of probation upon his admission to violating the conditions of probation and sentencing him to a term of imprisonment. Although the contention of defendant in each appeal that his guilty plea and admission were not voluntarily entered survives his valid waivers of the right to appeal, defendant failed to preserve those contentions for our review (see People v Peterson, 35 AD3d 1195, 1196 [2006]; People v DeJesus, 248 AD2d 1023 [1998], lv denied 92 NY2d 878 [1998]). Neither the plea nor the admission falls within the rare exception to the preservation requirement (see People v Lopez, 71 NY2d 662, 666 [1988]). To the extent that defendant’s contentions with respect to ineffective assistance of counsel in each appeal survive the guilty plea and admission and the valid waivers of the right to appeal, we conclude that defendant failed to preserve his contentions for our review because he did not move to withdraw the plea or admission or to vacate the judgments of conviction based on the alleged denial of effective assistance of counsel (see People v White, 37 AD3d 1112 [2007]; People v Thompson, 4 AD3d 785 [2004], lv denied 2 NY3d 808 [2004]). In any event, we conclude that defendant’s contentions lack merit (see generally People v Ford, 86 NY2d 397, 404 [1995]). Contrary to the contention of defendant in appeal No. 2, County Court did not err in sentencing him without obtaining an updated presentence report. The first and second declarations of delinquency relating to defendant’s two violations of probation “constituted the functional equivalent of an updated [presentence] report” (People v Orlowski, 292 AD2d 819, 819 [2002], lv denied 98 NY2d 653 [2002]; see People v Somers, 280 AD2d 925 [2001], lv denied 96 NY2d 806 [2001]; see also People v Perry, 278 AD2d 933 [2000], lv denied 96 NY2d 866 [2001]). Finally, the sentence is not unduly harsh or severe. Present— Martoche, J.E, Smith, Lunn, Fahey and Peradotto, JJ.

Appeal from a *1349judgment of the Erie County Court (Michael E Pietruszka, J.), rendered September 13, 2005. The judgment convicted defendant, after a nonjury trial, of assault in the second degree (two counts), resisting arrest and obstructing governmental administration in the second degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant was convicted, following a nonjury trial, of two counts of assault in the second degree (Penal Law § 120.05 [3]), and one count each of resisting arrest (§ 205.30) and obstructing governmental administration in the second degree (§ 195.05), arising out of the response by police officers to a domestic violence incident. Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, defendant’s contention lacks merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Two police officers testified, inter alia, that defendant injured them while attempting to prevent them from performing a lawful duty (see generally People v Voliton, 83 NY2d 192 [1994]). We have considered the remaining contention of defendant in his main brief, as well as the contentions in his pro se supplemental brief, and conclude that they are without merit. Present— Martoche, J.P, Smith, Lunn, Fahey and Peradotto, JJ.

Appeal from a judgment of the Onondaga County Court (William D. Walsh, J), rendered June 28, 2005. The judgment convicted defendant, upon his plea of guilty, of sexual abuse in the second 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, upon his plea of guilty, of sexual abuse in the second degree (Penal Law § 130.60 [1]). Contrary to the contention of defendant, his waiver of the right to appeal was voluntarily, knowingly, and intelligently entered (see People v DeJesus, 248 AD2d 1023 [1998], lv denied 92 NY2d 878 [1998]), despite the fact that defendant gave some “monosyllabic” responses to County Court’s inquiries with respect to the waiver. The further contention of defendant that his plea was not voluntarily, knowingly, and intelligently entered is actually a challenge to the factual sufficiency of the plea allocution (see People v White, 24 AD3d 1220 [2005], lv denied 6 NY3d 820 [2006]), and that challenge is encompassed by the valid waiver of the right to appeal (see People v Spikes, 28 AD3d 1101, 1102 [2006], lv denied 7 NY3d 818 [2006]; People v Bland, 27 AD3d 1052 [2006], lv denied 6 NY3d 892 [2006]). Defendant also failed to preserve that challenge for our review (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Farnsworth, 32 AD3d 1176 [2006], lv denied 7 NY3d 867 [2006]; People v Abdallah, 23 AD3d 1116 [2005], lv denied 6 NY3d 845 [2006]), and this case does not come within the narrow exception to the preservation requirement (see Farnsworth, 32 AD3d at 1177; see generally Lopez, 71 NY2d at 666). In any event, we conclude that defendant’s challenge lacks merit, based on defendant’s responses to the court’s questioning during the plea colloquy (see People v Seeber, 4 NY3d 780 [2005]; Spikes, 28 AD3d at 1102; see generally People v Moissett, 76 NY2d 909, 911 [1990]). Present—Martoche, J.E, Smith, Lunn, Fahey and Peradotto, JJ.

*1351Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered October 27, 2005 in a personal injury action. The order granted 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 affirmed without costs. Memorandum: Plaintiffs commenced this action seeking to recover damages for injuries sustained by Henry Sontag (plaintiff) at approximately 6:00 p.m. when he fell while skiing at a ski resort owned and operated by Win-Sum Ski Corp. (defendant). After plaintiff swerved to avoid two skiers in a darkened area at the bottom of the ski trail, he hit two bumps and fell. Plaintiff testified at his deposition that the trail was almost “pitch black” because several of the lights in the area were not illuminated. Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint. Defendants met their initial burden on the motion by establishing that plaintiff was an experienced skier who had skied at defendant’s ski resort more than 100 times over a 30-year period and was sufficiently aware of the inherent risks of downhill skiing, including the risk of injury caused by moguls or bumps in the terrain regardless of whether they could be seen. Defendants thus established that plaintiff assumed the risk of his injury (see Painter v Peek’N Peak Recreation, 2 AD3d 1289, 1290 [2003]; Ruepp v West Experience, 272 AD2d 673, 674 [2000]; Bruno v Hunter Mtn. Ski Bowl, 248 AD2d 660 [1998]). In opposition, plaintiffs failed “to submit evidence sufficient to raise an issue of fact whether defendant^] ‘created a dangerous condition over and above the usual dangers inherent in the sport of [downhill skiing]’ ” (Bennett v Kissing Bridge Corp., 17 AD3d 990, 991 [2005], affd 5 NY3d 812 [2005]). While more light at the bottom of the trail, perhaps by the installation of a backup lighting system, might have made the conditions safer for plaintiff, “the mere fact that a defendant ‘could feasibly have provided safer conditions’ is beside the point, where, as here, the risk is open and obvious to the participant, taking into consideration his or her level of experience and expertise, and is an intrinsic part of the sport” (Simoneau v State of New York, 248 AD2d 865, 866-867 [1998] [citations omitted]; see Sajkowski v Young Men’s Christian Assn. of Greater N.Y., 269 AD2d 105, 106 [2000]; Verro v New York Racing Assn., 142 AD2d 396, 400 [1989], lv denied 74 NY2d 611 [1989]). Further, even assuming, arguendo, that plaintiff did not assume the risk of his injury, we conclude that defendants *1352established as a matter of law that they lacked actual or constructive notice of the alleged inadequate lighting condition. In opposition, plaintiffs failed to raise a triable issue of fact whether defendants created the alleged condition through some affirmative act of misfeasance or whether defendants had notice of the alleged condition (see Resto v 798 Realty, LLC, 28 AD3d 388 [2006]). Present—Martoche, J.P, Smith, Lunn, Fahey and Peradotto, JJ.

Appeal and cross appeals from an order of the Supreme Court, Wayne County (Stephen R. Sirkin, A.J.), entered March 30, 2006 in a common-law negligence and Labor Law action. The order granted in part and denied in part the motions of defendants and third-party defendant for summary judgment and dismissed the common-law negligence and Labor Law §§ 200 and 240 (1) 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 motions of defendants David Christa Construction, Inc. and David Christa Construction, LLC and third-party defendant with respect to the common-law negligence and Labor Law § 200 claims and reinstating those claims against those defendants and by granting those parts of the motions with respect to the Labor Law § 241 (6) claims and dismissing those claims except insofar as they are based upon the alleged violation of 12 NYCRR 23-1.7 (a) and as modified the order is affirmed without costs. Memorandum: Plaintiffs commenced this common-law *1354negligence and Labor Law action seeking to recover damages for injuries sustained by Daniel Roosa (plaintiff) when he was struck by a branch at the construction site where he was working. Cornell Real Property Servicing, Inc. and Cornell University (collectively, Cornell defendants) were the owners of the construction site, and the general contractor was David Christa Construction, Inc. and David Christa Construction, LLC (collectively, Christa Construction defendants). The Christa Construction defendants thereafter commenced a third-party action against third-party defendant, Spring Lake Excavating (Spring Lake), plaintiffs employer. Supreme Court properly denied those parts of the motions of defendants and Spring Lake for summary judgment dismissing the Labor Law § 241 (6) claims insofar as they are based upon the alleged violation of 12 NYCRR 23-1.7 (a). That regulation is sufficiently specific to support a Labor Law § 241 (6) claim (see Terry v Mutual Life Ins. Co. of N.Y., 265 AD2d 929 [1999]; see generally Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]), and the evidence submitted by defendants and Spring Lake, including the deposition testimony of plaintiff and the crane operator, establishes that there were prior incidents of branches falling from trees. We thus conclude that there is an issue of fact whether the work site was “normally exposed to falling material or objects” (12 NYCRR 23-1.7 [a] [1]). We conclude, however, that the court erred in denying those parts of the motions for summary judgment dismissing the Labor Law § 241 (6) claims insofar as they are based upon the alleged violations of 12 NYCRR 23-8.1 (f) (2) and 23-8.2. Those sections are inapplicable to this case because there is no evidence that the accident was caused by the crane or that the crane came in contact with the trees (see generally Nastasi v Span, Inc., 8 AD3d 1011, 1012 [2004]). We further conclude that those parts of the motions for summary judgment dismissing the Labor Law § 241 (6) claims should be granted with respect to the remaining Industrial Code sections set forth in plaintiffs’ bill of particulars in response to defendants’ demands inasmuch as plaintiffs have abandoned any reliance on those sections on appeal (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]). We therefore modify the order accordingly. The court properly granted those parts of the motion of the Cornell defendants for summary judgment dismissing the common-law negligence and Labor Law § 200 claims against them. Those defendants established as a matter of law that they neither created nor had actual or constructive notice of the dangerous condition, and they further established they did not *1355supervise plaintiffs work (see Lombardi v Stout, 80 NY2d 290, 295 [1992]; Alnutt v J&E Elec., 28 AD3d 1214, 1215 [2006]), and plaintiffs failed to raise an issue of fact to defeat that part of the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Although a representative of the Cornell defendants was at the work site on a daily basis, the Cornell defendants nevertheless are not liable inasmuch as their representative had no contact with Spring Lake and did not exercise supervisory control over the methods of plaintiffs work (see Cooper v Sonwil Distrib. Ctr., Inc., 15 AD3d 878, 879 [2005]; Riley v Stickl Constr. Co., 242 AD2d 936, 936-937 [1997]). The court erred, however, in granting those parts of the motions of the Christa Construction defendants and Spring Lake for summary judgment dismissing the common-law negligence and Labor Law § 200 claims against the Christa Construction defendants. We therefore further modify the order accordingly. The record establishes that those defendants, as the general contractor, were responsible for tree removal and fencing and that, after the fence was installed, tree branches hung over the fence and into the work site. The witnesses characterized the work site as “congested” or “tight” and, although the field manager for the Christa Construction defendants and the president of Spring Lake received complaints concerning the trees, the trees were not removed. The record does not support the further contention of the Christa Construction defendants that they are entitled to summary judgment because the accident was caused solely by the work methods employed by Spring Lake, and because the condition of the overhanging branches was well known to plaintiff. “The fact that a dangerous condition is open and obvious does not negate the duty to maintain premises in a reasonably safe condition but, rather, bears only on the injured person’s comparative fault” (Bax v Allstate Health Care, Inc., 26 AD3d 861, 863 [2006]; see Ditz v Myriad Constrs., 269 AD2d 874, 875 [2000]; cf. Gavigan v Bunkoff Gen. Contrs., 247 AD2d 750, 750-751 [1998], lv denied 92 NY2d 804 [1998]). Although the danger created by the branches was known to plaintiff, it cannot be said as a matter of law that plaintiffs actions were the sole proximate cause of the accident inasmuch as it is undisputed that the Christa Construction defendants were responsible for clearing the site, including the trees and for fencing, and those conditions contributed to the accident (see generally Zuckerman, 49 NY2d at 562). We thus conclude that there is an issue of fact whether those defendants created or had actual or constructive notice of the dangerous condition created by the overhanging branches. Present— Martoche, J.E, Smith, Lunn, Fahey and Peradotto, JJ.

Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.), entered August 22, 2005. The order granted 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 affirmed without costs. Memorandum: Plaintiff filed a certificate of dual residency with defendant Gates-Chili Central School District (School District) affirming that she and her children had moved into her father’s residence located in the School District. Plaintiff then enrolled her children in the School District. After an investigation and a residency hearing, the School District determined that the children did not reside within the School District and advised plaintiff that her children could no longer attend school there. Thereafter, plaintiff commenced this action seeking damages for defendants’ alleged violations of the “state’s race discrimination and mental abuse statute.” Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint. The record establishes that plaintiff failed to file a notice of claim pursuant to Education Law § 3813 (1) and (2), and the filing of a notice of claim is a condition precedent to the commencement of this action (see Sangermano v Board of Coop. Educ. Servs. of Nassau County, 290 AD2d 498 [2002], lv dismissed 99 NY2d 531 [2002]; Doyle v Board of Educ. of Deer Park Union Free School Dist., 230 AD2d 820 [1996]; see generally Mills v County of Monroe, 59 NY2d 307 [1983], cert denied 464 US 1018 [1983]; Matter of Town of Brookhaven v New York State Div. of Human Rights, 282 AD2d 685 [2001]). In view of our determination, we do not address plaintiff’s remaining contentions. Present—Martoche, J.P., Smith, Lunn, Fahey and Peradotto, JJ.

Appeal from a judgment of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered November 2, 2005 in a proceeding pursuant to CPLR article 78. The judgment granted the petition in part. 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 petition is dismissed. Memorandum: Petitioners are, respectively, the contract vendee and the current owner of a 160-acre parcel in the Town of Clarence (Town) on which petitioner Meteor Enterprises, LLC (Meteor) seeks to construct a 230-unit clustered housing development. Meteor seeks to undertake the project pursuant to a Planned Unit Residential District (PURD) designation that was formerly available under the Town Zoning Law but is no longer available following the enactment of a new comprehensive Town Zoning Law in March 2005. In August 2001, pursuant to Town Law § 272-a, the Town adopted Master Plan 2015 (Master Plan), which provided for the enactment of a new comprehensive zoning law. Meteor submitted its application for a PURD designation and approval of its proposed development plan (PURD application) in May 2002. The Town Board, as lead agency under the State Environmental Quality Review Act (SEQRA), made a negative recommendation to the Town Planning Board (Planning Board) concerning Meteor’s PURD application. Petitioners then commenced a CPLR article 78 proceeding that resulted in a January 10, 2005 judgment annulling the Town Board’s SEQRA findings and directing that the PURD application be referred to the Planning Board for review. On March 9, 2005, the Town Board adopted the new Town Zoning Law that, as noted, *1357contained no provision for a PURD designation. On May 4, 2005, the Planning Board recommended that Meteor’s PURD application be denied, noting that the new Town Zoning Law had eliminated the PURD designation. By resolution adopted on May 25, 2005, the Town Board denied approval of the PURD application, reciting the SEQRA findings that had been previously annulled and adding that “[t]he adoption of [a] comprehensive zoning law . . . renders the proposed project design illegal.” Petitioners then commenced this CPLR article 78 proceeding seeking a judgment, inter alia, annulling the Town Board’s May 25, 2005 resolution, directing the Town Board to grant the PURD application, and declaring the new Town Zoning Law “invalid to the extent that it does not conform with the Master Plan by failing to provide the PURD designation.” Supreme Court granted the petition in part, annulling the May 25, 2005 resolution and granting Meteor’s PURD application. Respondent members of the Town Board appeal, and we reverse. We note at the outset that we agree with petitioners that the Town Board could not, as a matter of law, withhold approval of the development plan based on the SEQRA findings that were annulled by the judgment in the prior CPLR article 78 proceeding, from which no appeal was taken. Thus, the issues before us are whether the Town Board’s May 2005 determination of the PURD application was governed by the Town Zoning Law enacted in March 2005 and, if so, whether that Zoning Law is invalid on the ground that it is inconsistent with the Town’s Master Plan. “As a general rule, when a zoning law has been amended after the submission of an application seeking, e.g., subdivision approval, but before a decision is rendered thereon by the reviewing agency, the courts are bound to apply the law as amended unless ‘special facts’ indicate that the [reviewing agency] ‘acted in bad faith and unduly delayed acting upon [the] application while the zoning law was changed’ ” (Matter of Cleary v Bibbo, 241 AD2d 887, 888 [1997], quoting Matter of Bibeau v Village Clerk of Vil. of Tuxedo Park, 145 AD2d 478, 479 [1988]; see Matter of Greene v Zoning Bd. of Appeals of Town of Islip, 25 AD3d 612 [2006]; Matter of Lucrezia v Board of Appeals of Town of Haverstraw, 2 AD3d 861 [2003]; see generally Matter of Alscot Inv. Corp. v Incorporated Vil. of Rockville Ctr., 64 NY2d 921, 922 [1985]). Petitioners do not allege that the Town Board acted in bad faith or unduly delayed its determination of the PURD application while the Town Zoning Law was being changed, and we thus conclude that the Town Board’s May 2005 determination was governed by the Town Zoning Law *1358enacted in March 2005. The remaining issue therefore is whether that Zoning Law is invalid on the ground that it is inconsistent with the Town’s comprehensive Master Plan. “All town land use regulations must be in accordance with a comprehensive plan adopted pursuant to [Town Law § 272-a]” (§ 272-a [11] [a]). “Compliance with the statutory requirement is measured, however, in light of the long-standing principle that one who challenges such a legislative act bears a heavy burden. ... If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. . . . Thus, where the [challenging party] fails to establish a clear conflict with the comprehensive plan, the zoning classification must he upheld” (Bergstol v Town of Monroe, 15 AD3d 324, 325 [2005], lv denied 5 NY3d 701 [2005] [internal quotation marks omitted]). We conclude that, although the March 2005 Town Zoning Law eliminates the PURD designation, it nevertheless provides for a clustered housing zoning classification that is not in “clear conflict” with the Town’s Master Plan and therefore that zoning classification must be upheld (id.; see Matter of King Rd. Materials v Garafalo, 173 AD2d 931, 932 [1991]). Present—Hurlbutt, J.P., Gorski, Smith and Pine, JJ.

Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered January 4, 2006 in a personal injury action. The order and judgment granted defendants’ motion for summary judgment dismissing the complaint. It is hereby ordered that the order and judgment so appealed from be and the same hereby is reversed on the law without costs, the motion is denied and the complaint is reinstated. Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when she slipped and fell on ice and snow that had accumulated on the front walk of the apart*1359ment building owned by defendants. Supreme Court erred in granting defendants’ motion for summary judgment dismissing the complaint on the ground that there was a storm in progress. Defendants did not submit the meteorological data upon which their expert meteorologist relied in support of his opinion that there was a storm in progress when plaintiff fell. “Where [an] expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation, . . . the [expert’s] opinion should be given no probative force” (Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). Even assuming, arguendo, that defendants met their initial burden, we conclude that plaintiff raised a triable issue of fact whether the storm had abated and whether defendants had a reasonable opportunity to clear accumulated snow from their parking lot before plaintiff fell (see Grzankowski v Southgate Plaza, 267 AD2d 1055 [1999]; see also Williams v Scruggs Community Health Care Ctr., 255 AD2d 982 [1998]). In addition, plaintiff raised an issue of fact whether she slipped on ice that had accumulated prior to the storm and thus whether “the ice was a preexisting hazard and was not created by the storm in progress so as to defeat defendants’ motion” (Pacelli v Pinsley, 267 AD2d 706, 707 [1999]). All concur except Hurlbutt, J.E, and Smith, J, who dissent and vote to affirm in the following memorandum.

Hurlbutt, J.E, and Smith, J. (dissenting). We respectfully dissent because, in our view, Supreme Court properly granted the motion of defendants for summary judgment dismissing the complaint on the ground that there was a storm in progress. Defendants established that there was a storm in progress by submitting the deposition testimony of defendant Ellen Dukarm, in which she testified that six to eight inches of snow fell on the day of the accident, that she and her husband, defendant John R. Dukarm, shoveled the walkway from their front steps to the municipal sidewalk three times during the day, the last time being late in the afternoon, and that it continued to snow throughout the day (see Coyne v Talleyrand Partners, L.P., 22 AD3d 627, 628-629 [2005], lv denied 6 NY3d 705 [2006]; Mangieri v Prime Hospitality Corp., 251 AD2d 632, 633 [1998]). In addition, defendants submitted plaintiff’s deposition testimony, in which plaintiff admitted that she had observed defendants shoveling the walk and that it “snowed on and off” throughout the day. Contrary to the view of the majority, we conclude that the court properly relied upon the affidavit of the expert meteorologist, despite his failure to attach copies of the records upon *1360which he relied in stating that it snowed throughout the day, that there was “considerable blowing snow during the afternoon hours,” continuing until the time of the accident, and that “the weather event [on the day in question] constitutes a storm in progress.” The expert listed the specific records upon which he relied, which are National Weather Service records concerning weather conditions in the area in question. Contrary to the majority’s conclusion, “an expert may rely on out-of-court material if ‘it is of a kind accepted in the profession as reliable in forming a professional opinion’ ” (Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984]; see Greene v Xerox Corp., 244 AD2d 877, 877-878 [1997], lv denied 91 NY2d 809 [1998]). “In order to qualify for the ‘professional reliability’ exception, there must be evidence establishing the reliability of the out-of-court material” (Hambsch, 63 NY2d at 726). The records at issue are public weather records, which are by statute deemed prima facie evidence of the facts stated therein (see CPLR 4528). We also disagree with the majority that plaintiff raised a triable issue of fact whether the storm had abated at the time of her accident. The only indication in the record that snow had ceased falling for any appreciable period of time is the statement of plaintiff in her opposing affidavit, wherein she stated that, “upon information and belief, snow had stopped falling one or more hours before [her accident].” The court properly disregarded that statement. First, the statement was not made on personal knowledge and therefore is of no probative value (see Bruce v Fashion Sq. Assoc., 8 AD3d 1053 [2004]; Mic Prop. & Cas. Ins. Corp. v Custom Craftsman of Brooklyn, 269 AD2d 333, 334 [2000]). Second, plaintiff previously had testified at her deposition that she did not notice when the snow stopped. Thus, the statement is merely an attempt to avoid the implications of her prior testimony by raising a feigned issue of fact (see Richter v Collier, 5 AD3d 1003, 1004 [2004]; Martin v Savage, 299 AD2d 903, 904 [2002]). In any event, “even if there was a lull or break in the storm around the time of plaintiffs accident, this does not establish that defendants] had a reasonable time after the cessation of the storm to correct hazardous snow or ice-related conditions” (Krutz v Betz Funeral Home, 236 AD2d 704, 705 [1997], lv denied 90 NY2d 803 [1997]; see Baia v Allright Parking Buffalo, Inc., 27 AD3d 1153 [2006]; Jensen v Roohan, 233 AD2d 587, 588 [1996]). The majority’s conclusion that there is a triable issue of fact whether plaintiff slipped on ice that existed prior to the storm is also based solely upon a statement in plaintiffs affidavit, in which plaintiff stated that she slipped on ice and snow. That *1361statement contradicts her prior deposition testimony that she did not know what caused her to fall and that she did not see any ice, and thus must be regarded as another attempt to avoid the implications of her prior testimony (see Richter, 5 AD3d at 1004; Martin, 299 AD2d at 904). More importantly, plaintiff did not state that she slipped on preexisting ice, and thus the majority’s conclusion that there is an issue of fact whether the ice that allegedly caused plaintiffs fall existed prior to the storm is mere conjecture (see generally Jornov v Ace Suzuki Sales & Serv., 232 AD2d 855, 857 [1996]; Croff v Grand Union Co., 205 AD2d 856 [1994]). Present—Hurlbutt, J.P, Gorski, Smith, Green and Pine, JJ.

Appeal from a resettled order of the Supreme Court at Special Term, entered January 12, 1961, in New York County, which (1) denied a motion by petitioner for an order to vacate, quash and set aside two subpoenas duces tecum *759(2) decreed affirmatively the production of certain books, records and field reports and (3) dismissed the petition. Memorandum by the Court. Resettled order entered on January 12, 1961, dismissing petition seeking to vacate two subpcenae duces tecum and decreeing affirmatively the production of certain books, records and field reports, modified, on the law, on the facts and in the exercise of discretion, in the following respects, and otherwise affirmed, without costs. The field reports required to be made available shall relate only to the five City of New York contracts specified in Rider A of the October 19, 1960 subpcena, inasmuch as these are the only field reports demanded in either of the two subpoenas under review, and respondents may not in this proceeding require the production of records which they did not request by subpcena. The petitioner’s books and records are to be made available, commencing on February 6, 1961, at 9:00' a.m., at either of the two places and upon the terms, otherwise provided in the resettled order filed January 12, 1961.

Rabin, J. (dissenting). I cannot concur fully with the result reached by the majority. I believe that the resettled order appealed from should be modified further so as to delete the second decretal paragraph thereof and amend the third decretal paragraph so as to provide for the examination to be held; pursuant to the subpoenas, before at least two members of the commission as required by the act. The petitioner by its motion — as the majority memorandum sets forth — sought to vacate the two subpoenas duces tecum heretofore served. The respondent made no cross motion nor sought any affirmative relief but merely requested that the motion of the petitioner be denied. By its order the court went far beyond the issue posed by petitioner’s motion. That, a court should not do (see concurring opinion of Judge Fuld in Kilberg v. Northeast Airlines, 9 N Y 2d 34). A general challenge to the power to call for the production of relevant books and records does not invite a ruling directing the production of a specific book or record. In this case, the only issue before the court was whether the subpoenas should or should not be vacated and not what books and records should be produced. Consequently the court should not have made a disposition with respect to what books and records should be produced and the affirmative direction to produce certain books and records should not have been made. That issue was not properly before the court. There is therefore no need for us to consider whether the court made a proper determination with respect thereto. Since the subpoenas direct that the witnesses testify and give evidence at a private hearing to be held in connection with an investigation conducted pursuant to section 1 of chapter 989 of the Laws of 1958, no such testimony may properly be taken unless, pursuant to section 2 (subd. 11, par. d) (L. 1958, ch. 989), at least tw;o appropriate members of the commission are present. The order should have imposed that limitation. This petitioner has been under investigation by the respondent since July of 1960. Its complaint that the time has come to conclude the examination has some justification. The record does not show any evidence of any wrongdoing — and indeed the respondent admits that none has been adduced. I would, therefore, be in favor of granting the petitioner’s request to quash these subpcenas but for the acquiescence by the respondent in the five-day limitation provided for in the order. Botein, P. J., McNally and Stevens, JJ., concur in Memorandum by the Court; Rabin, J., dissents in opinion, in which Yalente, J., concurs. Resettled order entered on January 12, 1961, modified, etc. Settle order on notice.

Appeals from an order of the Supreme Court, Erie County (Joseph D. Mintz, J), entered August 3, 2005 in a medical malpractice action. The order granted plaintiffs motion seeking to set aside the jury verdict in favor of defendants Philip M. Stegemann, M.D. and the County of Erie and granted a new trial with respect to those defendants. It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs, the motion is denied and the verdict is reinstated. Memorandum: Plaintiff commenced this action to recover damages for injuries allegedly resulting from a burn on her skin that appeared immediately following orthopedic surgery at the Erie County Medical Center (ECMC). Supreme Court granted plaintiff s motion seeking to set aside the jury verdict in favor of Philip M. Stegemann, M.D. and the County of Erie (defendants) as against the weight of the evidence and granted a new trial on the issues of liability and damages with respect to defendants. That was error. At trial, each defendant offered expert testimony attributing the burn to the conduct of the other. According to Dr. Stegemann, the burn resulted from the use of an excessively hot IV bag as an axillary roll by staff of the ECMC to position plaintiff *1362for surgery and, according to the County of Erie, the burn resulted from plaintiff’s lying on padding saturated with Betadine solution, a caustic substance. Plaintiff argued on summation that the fact that she was burned establishes negligence and that it was for the jury to decide “who, how, [and in] what percentage.” The first two questions on the verdict sheet were whether each defendant, respectively, was negligent, and whether such negligence was a substantial factor in causing any of plaintiffs injuries. The jury provided negative responses to each question. During argument of plaintiff’s posttrial motion, the court stated its view that the jury could find either or both defendants liable but that there was no rational basis to find neither liable. The court cited no authority for the proposition that the jury had to find at least one defendant responsible in a res ipsa loquitur situation in which each defendant controlled a different instrumentality, either of which could have caused a burn, and the charge, to which there was no objection, did not state that proposition. Although it is undisputed that plaintiff was burned, we conclude that a rational jury could find that plaintiff failed to prove circumstantially what caused the burn and thus failed to prove which defendant caused the burn. Reversal therefore is required, because it cannot be said that the evidence so preponderates in favor of plaintiff that the verdict could not have been reached on any fair interpretation of the evidence (see generally Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]). We note the well-settled principle that, while res ipsa loquitur permits an inference of negligence from circumstantial evidence, it “does not require the jury to infer that [a] defendant was negligent” (Morejon v Rais Constr. Co., 7 NY3d 203, 209 [2006]). Stated differently, res ipsa loquitur is an “evidentiary doctrine that merely permits the jury to infer negligence based on a well-founded understanding that the injury-causing event would not normally occur unless someone was negligent and may be rebutted with evidence from [a] defendant that tends to cast doubt on plaintiffs proof’ (States v Lourdes Hosp., 100 NY2d 208, 213-214 [2003], rearg denied 100 NY2d 577 [2003]). All concur except Gorski, J., who dissents and votes to modify in accordance with the following memorandum.

Gorski, J. (dissenting). I respectfully dissent because, in my view, Supreme Court properly granted plaintiffs motion seeking to set aside the jury verdict in favor of Philip M. Stegemann, M.D. and the County of Erie (defendants) as against the weight *1363of the evidence. As the court properly determined, the evidence so preponderates in plaintiff’s favor that the jury verdict in favor of defendants could not have been reached on any fair interpretation of the evidence (see Higgins v Armored Motor Serv. of Am., Inc., 13 AD3d 1087, 1088 [2004]; Grant-White v Hornbarger, 12 AD3d 1066, 1067-1068 [2004]; Augustine v Dandrea, 274 AD2d 962, 963 [2000]). When plaintiff awoke from general anesthesia following surgery on the rotator cuff of her right shoulder, it was discovered that she had a large second degree burn, approximately 8 centimeters by 14V2 centimeters, in the area of her left underarm and breast, an area remote from the surgical site. The burn was serious enough to require skin grafting and tissue for that purpose was taken from plaintiffs thigh, resulting in scarring in two areas of plaintiffs body. According to the testimony of Dr. Stegemann and expert testimony offered by him, the burn was caused by an overheated IV bag placed by the nurses or other employees of the Erie County Medical Center (ECMC) and used as an axillary roll. According to the testimony of employees of the ECMC and expert testimony offered by defendant County of Erie, plaintiff sustained a chemical burn from lying on pads soaked in Betadine for too long or she sustained a burn resulting from the misuse of an electrocautery device, either of which resulted from circumstances implicating Dr. Stegemann. “The determination of the trial court to set aside a jury verdict as against the weight of the evidence ‘must be accorded great respect’ . . . and, where the court’s determination is ‘not unreasonable, we will not intervene to reverse that finding’ ” (American Linen Supply Co. v M.W.S. Enters., 6 AD3d 1079, 1080 [2004], lv dismissed 3 NY3d 702 [2004]; see Higgins, 13 AD3d at 1088). In my view, the court properly set aside the jury verdict upon determining that there was no rational basis for the jury’s finding that neither defendant was negligent. Plaintiff, who was unconscious throughout the surgery, could not have contributed to her initial injury in any manner, and thus one of the defendants was responsible for the burn sustained by plaintiff during the surgery in an area remote from the surgical site. I further conclude, however, that the court should have granted judgment in favor of plaintiff on the issue of negligence and granted a new trial to determine which defendant was at fault and, in the event that both were at fault, to determine the percentage of fault for each. The majority concludes that “plaintiff failed to prove circumstantially what caused the burn and thus failed to prove *1364which defendant caused the burn.” I cannot agree with that conclusion. Plaintiff, as part of her case, offered testimony from both defendants wherein each blamed the other and, indeed, it can hardly be debated that a patient does not awaken from anesthesia following surgery with large burns in the absence of negligence on the part of at least one of the defendants who participated in the surgery. “Generally, the doctrine of res ipsa loquitur permits but does not compel an inference of negligence . . . . However, where a plaintiff’s ‘prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable and unrebutted, summary judgment on [negligence] is proper’ ” (Thomas v New York Univ. Med. Ctr., 283 AD2d 316, 317 [2001], quoting Salter v Deaconess Family Medicine Ctr. [appeal No. 2], 267 AD2d 976, 977 [1999]). In my view, this is one of those rare res ipsa loquitur cases in which plaintiff should have been awarded a directed verdict on the issue of negligence at the close of proof because the circumstantial evidence presented by her is so convincing that the inference of negligence on the part of one or both of the defendants is inescapable (see Morejon v Rais Constr. Co., 7 NY3d 203, 209 [2006]). I therefore would modify the order by granting judgment in favor of plaintiff on the issue of negligence and by providing that a new trial is limited to the issues of apportionment of liability and damages. Present—Hurlbutt, J.E, Gorski, Smith and Pine, JJ.

*1365Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered February 6, 2006 in a declaratory judgment action. The judgment denied the motion of plaintiff for summary judgment and granted the cross motion of defendants for summary judgment. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion in part, vacating the declaration that plaintiff is solely responsible for the costs associated with the settlement of the underlying action and the provision dismissing the complaint and granting judgment as follows: “It is adjudged and declared that defendant Travelers Insurance Company is obligated to provide excess insurance coverage for the costs associated with the settlement of the underlying action and as modified the judgment is affirmed without costs.” Memorandum: Plaintiff commenced this action seeking a judgment declaring, inter alia, that defendant Travelers Insurance Company (Travelers) is obligated as a coinsurer of defendant Savarino Construction Services, Inc. (Savarino) to reimburse plaintiff for one half of the costs incurred by plaintiff in the defense and settlement of the underlying personal injury action against, inter alia, Savarino. We conclude that Supreme Court properly granted defendants’ cross motion for summary judgment insofar as it sought a declaration that plaintiff is the sole primary insurer of Savarino in the underlying action and thus that plaintiff is primarily responsible for the costs incurred in the defense and settlement of the underlying action, although our reasoning differs from that of the court. We further conclude, however, that Travelers is obligated to provide excess coverage to Savarino in the underlying action and thus that the court erred in granting the cross motion insofar as it sought a declaration that plaintiff is solely responsible for the costs associated with the settlement of the underlying action and in failing to grant judgment declaring that Travelers is obligated to provide excess coverage. In addition, because this is a declaratory judgment action, we conclude that the court erred in dismissing the complaint (see Tumminello v Tumminello, 204 *1366AD2d 1067 [1994]). We therefore modify the judgment accordingly. Pursuant to a contract between plaintiff’s named insured, WC. Roberson Plumbing & Construction Corp. (Roberson), and Savarino, Savarino was added as an additional insured on Roberson’s commercial general liability policy with plaintiff; Savarino was not added as an additional insured on a separate excess liability policy purchased by Roberson from plaintiff. Savarino is the named insured in a commercial general liability policy issued by Travelers. Pursuant to the contract between Roberson and Savarino, plaintiff defended Savarino in the underlying personal injury action commenced by an employee of Roberson. Savarino settled with Roberson’s employee in the underlying action and plaintiff paid Roberson’s employee the entirety of its primary policy covering Savarino as an additional insured and a portion of its excess policy purchased by Roberson. Plaintiff contends that its policy covering Savarino as an additional insured and the Travelers policy are both primary and that, pursuant to the “other insurance” clauses in both its primary policy and the Travelers policy, Travelers is obligated to share equally in the costs associated with the defense of Savarino and the subsequent settlement of the underlying action. We reject that contention. Initially, we agree with plaintiff that the court erred in determining that Pecker Iron Works of N.Y. v Traveler’s Ins. Co. (99 NY2d 391 [2003]) is controlling here. In that case, the Court concluded that an additional insured was entitled to primary coverage under a commercial general liability policy. Here, plaintiff does not dispute that Savarino, an additional insured under its policy, is entitled to primary coverage. Rather, the dispute is whether, pursuant to the terms of the policies, Travelers’ coverage of Savarino is primary along with plaintiffs primary coverage of Savarino as an additional insured (see id. at 393), or whether Travelers’ coverage of Savarino is excess to plaintiffs coverage. We have therefore examined “the purpose each policy was intended to serve as evidenced by both its stated coverage and the premium paid for it . . . , as well as . . . the wording of its provision concerning excess insurance” (State Farm Fire & Cas. Co. v LiMauro, 65 NY2d 369, 374 [1985]; see United States Fire Ins. Co. v CNA, 300 AD2d 1054, 1055 [2002]). Although we note that both policies provide coverage for sums that the insured is legally obligated to pay as damages for bodily injury and that the premium Savarino paid Travelers was for primary coverage (see generally General Motors Acceptance Corp. v Nationwide Ins. Co., 4 NY3d 451, 457 [2005]), we disagree *1367with plaintiff that the “other insurance” clauses in the policies are identical and that they therefore both provide primary coverage. Pursuant to the “other insurance” clauses in both policies, the policies provide primary coverage except that the coverage is excess where any other primary insurance is available to the insured for which the insured has been added as an additional insured by attachment of an endorsement. Savarino is added as an additional insured on plaintiffs primary policy, and thus the excess clause is triggered in the Travelers policy but not in plaintiffs policy. We therefore conclude that the excess coverage clauses are not “deemed to cancel each other out” and thus do not result in coinsurance (State Farm Fire & Cas. Co., 65 NY2d at 374). Rather, pursuant to the terms of the policies, Travelers’ coverage is excess to plaintiff’s coverage, and we therefore conclude that coverage under plaintiffs primary policy must be exhausted before Travelers is required to contribute under its policy (see generally Cheektowaga Cent. School Dist. v Burlington Ins. Co., 32 AD3d 1265, 1268 [2006]). Plaintiff exhausted its primary policy of $1,000,000 in its settlement with Roberson’s employee, and Travelers is thus obligated under the terms of its policy to reimburse plaintiff for the amount paid to Roberson’s employee, on behalf of Savarino, in excess of that amount. We note that, in the underlying third-party action, Savarino was granted summary judgment against Roberson on its cause of action for contractual indemnification (Nicholas v EPO-Harvey Apts., Ltd. Partnership, 31 AD3d 1174 [2006]). Travelers would therefore have a right of subrogation against Roberson in that third-party action (see Allstate Ins. Co. v Stein, 1 NY3d 416, 422 [2004]), and, as a practical matter, would be entitled to reimbursement from Roberson for the amount that Travelers is obligated to pay plaintiff as excess coverage for Savarino’s liability to Roberson’s employee (see generally United States Fid. & Guar. Co. v CNA Ins. Cos., 208 AD2d 1163, 1165 [1994]). Present—Scudder, P.J., Hurlbutt, Gorski and Martoche, JJ.

Appeal from a judgment of the Oneida County Court (Barry *1368M. Donalty, J.), rendered November 8, 2004. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon 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 upon a jury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03 [2]) and criminal possession of a weapon in the third degree (§ 265.02 [1]). Defendant contends that, because County Court refused to provide him with an unredacted copy of the search warrant application, the court was required to conduct a Darden hearing (People v Darden, 34 NY2d 177 [1974], rearg denied 34 NY2d 995 [1974]; see generally People v Castillo, 80 NY2d 578, 582-584 [1992], cert denied 507 US 1033 [1993]). We reject that contention. “[Ijnformants who previously testified before the Magistrate who issued a warrant need not be produced for a Darden hearing, since their existence and statements have already been verified” (People v Edwards, 95 NY2d 486, 493 [2000], citing People v Serrano, 93 NY2d 73, 76-77 [1999]; see People v Monk, 28 AD3d 793 [2006]). Upon our review of the unredacted search warrant application and the transcript of the confidential informant’s sworn testimony before the issuing Magistrate, we agree with the court that the existence of the confidential informant was not fabricated (see Serrano, 93 NY2d at 77; Darden, 34 NY2d at 181-182), and that the testimony of the confidential informant established probable cause to believe that drugs would be found upon a search of defendant’s apartment (see People v Perez, 298 AD2d 935, 936 [2002], lv denied 99 NY2d 562 [2002]; People v McLaughlin, 269 AD2d 858 [2000], lv denied 95 NY2d 800 [2000]). Finally, we have reviewed the contentions raised by defendant in his pro se supplemental brief and conclude that they are without merit. Present—Scudder, PJ., Martoche, Centra and Pine, JJ.

Appeal from order entered on-October 27, 1959, denying petitioners’ motion for an order directing the respondents to grant credit for the answers of the petitioners to questions 21, 25, 28, 29, 53, 54, 56, 66, 67 and 88 of the examination for promotion from Patrolman to Sergeant, Police Department, City of New York, held on January 5, 1957, and remanding the matter to respondents for reconsideration, unanimously dismissed, with $20 costs and disbursements to the respondents. This order is not a final one as it directs the respondents to take further action that would require the exercise of discretion rather than the performance of a merely ministerial duty (Matter of American Holding Corp. v. Murdock, 6 A D 2d 596). An appeal from a nonfinal order in an article 78 proceeding may only be taken where leave to do so has been granted (Civ. Prac. Act, § 1304; Matter of American Holding Corp. v. Murdoch, supra). No leave to appeal having been obtained and the respondents having taken proper objection, a review by this court is precluded (Civ. Prac. Act, § 1304; Matter of Hirsch v. State Rent Comm., 10 A D 2d 35). Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.

Order entered on September 16, 1960 unanimously reversed on the law and on the facts, without costs, and cross motion of defendant-appellant is granted to the extent of modifying the judgment of February 9, 1960 to strike therefrom the provision that the defendant-appellant pay to the plaintiff-respondent the sum of $25 per week commencing December 8, 1959 and to direct new trial solely as to the issue of the amount of alimony to be awarded plaintiff-respondent, with time of payment thereof to commence at such date on or after February 9, 1960, as may be fixed by the trial court; and otherwise said cross motion is denied, all without costs. The defendant did not contest the granting of the decree of annulment, and we are of the opinion that he is not entitled to a new trial on the ground of newly discovered evidence as to the alleged “ guilty knowledge ” of the plaintiff with respect to defendant’s prior existing marriage. It appears that at the time of the trial the defendant was fully aware of the relevant facts pertinent to such issue, and that his alleged newly discovered evidence is merely cumulative or such that could have been produced at time of trial had he used due diligence. It now appears, however, as recently *761discovered by defendant, which he could not have learned about earlier, that the plaintiff testified falsely as to material facts bearing on the issue as to the amount of alimony, if any, to be awarded to her. Namely, she testified that she was not working at the time of the trial and had been unable to find a position after having made every effort to do so, when in fact she had then found a position and was then employed. She submits no affidavit explaining her patently false testimony and the award of alimony based thereon may not stand. Settle order on notice. Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.

. Judgment dismissing the complaint at the close of plaintiff’s case, unanimously reversed, on the law, and a new trial ordered, without costs to either party. In this property damage action plaintiff established, prima facie, a ground for recovery. It was entitled, therefore, to have its claim passed on by the jury, or to have defendant assume the burden of going forward. It was established that the water had accumulated on the roof from the bottom of the water tank exclusively maintained and operated by defendant owner and that it was such water which entered plaintiff’s premises. The evidence, therefore, satisfied the rule in George Foltis, Inc., v. City of New York (287 N. Y. 108). The situation was quite different in Silver v. Drydock Sav. Inst. (261 App Div. 283) where the proof failed to establish the source of the invading water. It is not clear from the record that plaintiff on the trial, as distinguished from its pleadings, rested its case solely on the theory that the pipes burst, as a result of a failure to maintain heat in the building. If it had, then, of course, the determination by the Trial Justice would have been correct. Instead it appears in the record at the very close of the proceedings that plaintiff was insisting that the case was one provable under the doctrine of res ipsa loquitur. Of course, in that event, plaintiff might be well advised to seek leave to amend its pleadings, including the bill of particulars. Concur — Breitel, J. P., Rabin, Valente, Stevens and Eager, JJ.

Judgment dismissing complaint after trial unanimously affirmed, on the law and on the facts, with costs to defendant-respondent. Plaintiffs, on the preponderance of the evidence, failed to establish any agreement or understanding, express or implied, by defendant Aaron Merker with the deceased to hold or use the savings bonds or life insurance for use of or delivery to plaintiffs and defendant Arthur Merker. Consequently, on this basis there was no warrant for imposing a constructive trust (Farano v. Stephanelli, 7 A D 2d 420, 423-425; Restatement, Trusts 2d, § 44). Similarly, on the preponderance, as well as the sufficiency, of the evidence plaintiffs failed to establish that any transfers of property were made in a fiduciary or confidential relationship, under circumstances, sufficient to require defendant Aaron Merker to establish the voluntary and bona fide character of the transfers, for failure of which another kind of constructive trust might be imposed (3 Pomeroy, Equity Juris. [5th ed.], § 943 et seq.; Restatement, Contracts, § 497 and the cases cited in the N. Y. Annotations). But even if the evidence had sufficed to establish such burden it was met by defendant Aaron Merker on the preponderance of the evidence. In consequence, neither in law nor in justice should the judgment of the trial court be disturbed. Concur — Botein, P. J., Breitel, Rabin, McNally and Eager, JJ. [26 Misc 2d 362.]

In an action by the wife for an annulment of her marriage by reason of defendant’s fraud, defendant appeals: (a) from an order of the Supreme Court, Kings County, dated November 25, 1959, denying, after hearing oral proof, his motion to vacate the service of the summons and complaint upon him, to vacate the default judgment against him, to open his default in answering the complaint, to permit him to interpose his answer, and for other relief; and (b) from a prior order of said court, dated November 9, 1959, directing a hearing of the motion upon oral proof. Order of November 25, 1959, modified by striking out its decretal paragraph denying the motion in all respects, and by substituting therefor: (1) a paragraph granting the motion to the extent of vacating the judgment of annulment, opening defendant’s default in answering the complaint, and permitting defendant, within 10 days after the entry of the order hereon, to interpose his verified answer; and (2) a paragraph denying the motion in all other respects. As so modified, order affirmed, without costs. We believe the record supports the finding of the Special Term that defendant was duly served with process in this action. We also believe, however, that in the exercise of discretion and in the interests of justice, the default judgment entered against defendant should not be allowed to stand and that he should be given a further opportunity to defend, because: (a) this is a matrimonial action, and (b) prima facie he appears to have a meritorious defense. Appeal from order on November 9, 1959, dismissed as academic. Beldock, Acting P. J., Kleinfeld, Christ and Pette, JJ., concur; Brennan, J., not voting.

In an action by the husband for a separation, in which the defendant wife counterclaims for the same relief, the plaintiff husband appeals from so much of an order of the Supreme Court, Westchester County, dated September 6, 1960, as, on reargument, adheres to the original decision and refers the defendant’s motion for temporary alimony and counsel fee to the Trial Justice on certain conditions, namely: (a) that plaintiff make the payments on the mortgage, taxes and insurance on the home owned by the parties as tenants by the entirety; (b) that plaintiff pay to defendant, on account of any temporary alimony that may be allowed eventually, the sum of $175 a week while the son lived at home and the sum of $150 a week if he did not live at home, payments to commence as of June 15, 1960, the return date of the motion; (c) that plaintiff pay to defendant, on account of counsel fees that may be allowed eventually, the sum of $1,750 in two installments of $875, one to be paid within 10 days after service of a copy of the order and one to be paid when the case reaches the Ready Calendar for trial. The principal error urged is that the interim sums ordered to be paid on account of the temporary alimony and counsel fees which might be allowed eventually, are grossly excessive. No issue is raised as to the form of the order. In addition to the amounts fixed in the order, it was understood and agreed that the plaintiff would pay for the college tuition and expenses of the son during his attendance at college. Order modified as follows: (1) by striking out the-second decretal paragraph; (2) by striking out from the fifth decretal paragraph the direction for interim alternative *767payments of $175 and $150 per week, and by substituting therefor a direction for such payments at the rate of $125 and $100 per week; and (3) by striking out from the seventh decretal paragraph the direction for the payment of $1,750 in two equal installments, on account of the counsel fees, and by substituting therefor a direction for the payment of $1,250 in two equal installments on account of the counsel fees. As so modified, order insofar as appealed from, affirmed, without costs. In our opinion, the amount of the alimony and the amount of the counsel fee directed to be paid by the order appealed from, are excessive in view of all the circumstances shown and in view of the fact that the Trial Justice later may fix the temporary alimony and counsel fees at amounts in excess of those previously directed to be paid on account (cf. Golding v. Golding, 6 A D 2d 871). Beldoek, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

In a summary proceeding by a landlord to recover possession of real property held by the tenant under a written lease, the tenant appeals from a final order of the County Court, Westchester County, rendered August 6, 1960, granting the petition and awarding possession to the landlord, after a nonjury trial. The lease between the parties specified that, in the event of a bona fide sale, the landlord had the option of cancellation on giving notice to the tenant, provided the landlord return the security, the tenant to pay rent until the time of cancellation. On December 17, 1959 (almost two years after this four-year lease was executed) the landlord contracted bona fide to sell the premises to a third party. The contract required the landlord to remove all tenants and to give possession of the entire premises to the purchaser. Thereafter, appropriate notice was given by the landlord to the tenant of the contract and of the exercise by the landlord of the privilege of cancellation. The tenant failed to vacate and this summary proceeding was brought. The tenant raised two defenses: (1) that the option to cancel could be exercised only in the event of a sale and here there was only an agreement to sell; (2) the landlord had not tendered the return of the security at the time of the giving of the notice of cancellation. At the trial it appeared: (a) that the purchaser had not yet taken title, but that he was ready, able and willing to perform in accordance with the contract of sale; and (b) that the security had not been tendered or returned by the landlord to the tenant. Final order affirmed, with costs (Hyman v. Federal Doll Mfg. Co., 185 N. Y. S. 678; Luse v. Elliott, 204 Iowa 378; Cincinnati-Louisville Theatre Co. v. Masonic Widows’ & Orphans’ Home, 272 F 637; Glenn v. Inouye, 62 Cal. App. 259; Yontz v. McDowell, 197 Ky. 770; Travelers Ins. Co. v. Gibson, 133 Tex. 534). In our opinion, under the provisions of the lease, read as a whole, the tenant is entitled to the return of his security only after he vacates the premises, provided that he has paid the rent up to the time he vacates and that he has fully performed all the other terms of the lease on his part to be performed. Beldock, Ughetta and Christ, JJ., concur; Nolan, P. J., and Kleinfeld, J., dissent and vote to reverse the final order in favor of the landlord, and to dismiss the petition, with the following memorandum: The lease between the parties was for a term of four years ending January 31, 1962. It provided for the tenant’s deposit of security in the sum of $525, which was to be returned to the tenant after the time fixed as the expiration of the term, provided the tenant had performed the terms, covenants and conditions of the lease on his part to be performed. The lease also provided that in the event of a bona fide sale of the premises, the landlord should have the option to cancel the lease upon 90 days’ written notice “provided Landlord returns the security deposited with him by Tenant under this lease, Tenant to pay rent until the time of the cancellation” (emphasis supplied). In this proceeding to recover possession of the premises, *769brought prior to the expiration of the term specified in the lease, the landlord claims the right to possession by virtue of a 90-day notice, served on the tenant, canceling the lease as of June 1, 1960. Concededly the security deposited by the tenant has not been returned. The landlord asserted that under the lease he had the right, without returning the security, to terminate the tenancy upon "giving the 90-day notice and to retain possession of the security until the tenant should vacate the premises. The learned County Judge and the majority of this court have sustained the landlord’s interpretation of the provisions of the lease, and have agreed that the lease could be so cancelled and the security could be so retained. We are unable to agree. Options to terminate tenures granted by the provisions of leases are required to be strictly construed. In order to divest the tenant’s interest, the landlord was required to comply strictly with the terms of the agreement which permitted cancellation of the lease only upon the return of the security (cf. Dubois & Son v. Goldsmith Bros., 273 App. Div. 306, 309). Since the option has not been exercised in accordance with its terms, the lease continues in force and the landlord may not recover possession.

In a proceeding by the Village of Suffern, pursuant to statute (Village Law, § 89, subd. 7-a) and pursuant to the corresponding Unsafe Building Ordinance adopted by said village on March 10, 1958, against the owner of a building, to determine that the building is a public nuisance and to direct that it be demolished, the owner appeals from a final order of the Supreme Court, Rockland County, rendered June 2, 1960 (such order being designated in the notice of appeal as a judgment-decree), after a nonjury trial, which granted the petition and: (a) directed the removal of the building within a prescribed period of time at the owner’s expense; (b) authorized petitioner, in the event the owner shall fail to remove said building within such prescribed period, to proceed with its demolition and removal; and (c) directed that, in the event the petitioner demolishes and removes the building, then the cost thereof shall be assessed against the land upon which the building is located. Order reversed, without costs, and the matter remitted to the Special Term for further proceedings not inconsistent herewith. The statute and the local ordinance under which the proceeding was brought empower the Board of Trustees of the village to provide for the removal or repair of buildings which are dangerous or unsafe to the public. In our opinion, there was substantial compliance with the provisions of said statute and ordinance. In view of the agreement among the witnesses who testified, however, that the building could be repaired so as to be made safe to the public, it is our opinion that it was error to direct its demolition without giving the owner an opportunity to make it safe by effecting the necessary repairs. Upon the remission, the court, on the basis of the evidence heretofore submitted or on the basis of that evidence and su’ch additional competent and relevant *770evidence as the parties may he advised to submit, should determine what repairs are necessary to make the building safe and should give such directions as may be proper, with respect to the repair and security of the building, and with respect to its removal if it shall not be repaired and made secure, as the court may direct. Nolan, P. J., Beldoek, Ughetta, Kleinfeld and Brennan, JJ., concur.

OPINION OF THE COURT McGuire, J. In a 32-count indictment issued in March 2001, defendant was charged with raping, sodomizing and sexually abusing his daughter. In April 2002, defendant proceeded to trial before Justice Allen and a jury. Following the direct examination of defendant’s daughter, however, counsel informed the court that *3defendant wished to plead guilty to one count of first-degree rape in full satisfaction of the indictment. During the course of the ensuing, comprehensive plea colloquy, defendant admitted that on June 13, 2000 he had engaged in sexual intercourse with his daughter by forcible compulsion, that her testimony on direct examination was true and that he had forced her to have sexual relations with him since she was nine years old. Before accepting defendant’s guilty plea, Justice Allen informed defendant that the sentence would be 15 years in prison; defendant acknowledged that he understood. At sentencing on May 14, 2002, the negotiated 15-year prison sentence was imposed. Nearly two years later, in March 2004, defendant moved pursuant to CPL 440.10 to vacate his conviction. Relying on People v Catu (4 NY3d 242 [2005]), defendant argued that his guilty plea was involuntary, because he had not been informed that his sentence included a five-year period of postrelease supervision. Following a hearing, Justice Allen denied defendant’s motion in a written decision dated May 31, 2005. However, for the reasons discussed below, Justice Allen modified defendant’s sentence to a prison term of 12V2 years and 2V2 years of postrelease supervision. Defendant now appeals, both from the judgment of conviction rendered May 14, 2002, as amended May 31, 2005, and, by permission of a Justice of this Court, from Justice Allen’s order, entered May 31, 2005, which denied his motion to vacate the judgment and modified the sentence. Although the issue is by no means free from doubt, reversal of the judgment and order appealed from is not required by the recent decision of the Court of Appeals in People v Van Deusen (7 NY3d 744 [2006]). A number of issues complicate the analysis of defendant’s claim under People v Catu (4 NY3d 242 [2005]), and these issues must be discussed before the potential impact of Van Deusen can be appraised. At bottom, however, in the absence of an unequivocal mandate from the Court of Appeals requiring vacatur of the plea for every Catu violation, regardless of whether the defendant has been prejudiced by or even benefitted from the violation, I believe that the Legislature has made clear that defendant’s claim of entitlement to that remedy should be rejected. Justice Allen’s approach to defendant’s claim under Catu is sensible for at least three reasons. First, by modifying the sentence to a prison term of 121/2 years and 2V2 years of postrelease supervision, Justice Allen put defendant in a better position than he would have been in if he lawfully could have been *4sentenced to a term of 15 years with no period of postrelease supervision. Under the original sentence, defendant would be eligible for conditional release after serving six sevenths of a 15-year term, i.e., after serving 12 years and some 10 months (see Penal Law § 70.30 [4] [a]; § 70.40 [1] [b]; Correction Law § 803 [1] [c]). Under the modified sentence, defendant is eligible for conditional release after serving six sevenths of a 1272-year term, i.e., after serving 10 years and just under nine months (id.). Defendant’s release from prison if he were not to receive any allowances for good behavior under Correction Law § 803 would be required after 15 years under the original sentence, but is required 272 years earlier, after 1272 years, under the modified sentence. Against these benefits, there is only the fact that defendant would not have been subject to what the law denominates as a period of “postrelease supervision” under the original sentence. But assuming that under that sentence defendant would earn the allowances for good behavior and thus would be released after 12 years and 10 months, under Penal Law § 70.40 (1) (b) he would be subject to the supervision of the Board of Parole for the unserved portion (two years and two months) of the term. Accordingly, on this assumption he would be subject to what is tantamount to a period of postrelease supervision, and to such a period nearly as long as the one he is subject to under the modified sentence. Moreover, he would be conditionally released from prison significantly later (two years and one month later) under the original sentence than he would be under the modified sentence. On the contrary assumption that defendant would not earn the allowances, he hardly is prejudiced by being subject to a 272-year period of postrelease supervision following his release from prison after 1272 years. After all, on this hypothesis he would not even be released from prison under the original sentence until he had served the entire 15-year term. Being released from prison after 1272 years with a possibility of being returned to prison for up to 2½ years, is better than not being released after 1272 years with the certainty of remaining in prison for 272 more years. Surprisingly or not, defendant disagrees. At the hearing on his motion to vacate the conviction, he apparently testified that he would rather spend 15 years in prison than serve any time under a period of postrelease supervision. But as Justice Allen stated in his well-reasoned written opinion, that claim is *5“disingenuous at best; any rational person would choose liberty over incarceration.” If defendant has some legally cognizable right to an irrational choice, the modified sentence presents no obstacle. If defendant were to earn the allowances for good behavior unwittingly or even against his will, the applicable statute provides only that a person who receives good behavior time and is eligible for release “shall, if he so requests, be conditionally released from the institution” (Penal Law § 70.40 [1] [b] [emphasis added]). The key to remaining in jail, in other words, would be in defendant’s hands. As Justice Allen observed, “[s]ince he would then receive the 15-year sentence he was promised, there still would be no reason to allow him to take back his plea.” Defendant’s position, moreover, is undermined as well by its consequences. If Justice Allen had modified the sentence by imposing a sentence of 10 years in prison with 2V2 years of postrelease supervision, the People would have been entitled to have the plea vacated (see People v Farrar, 52 NY2d 302, 307-308 [1981] [“Where the record shows that the prosecutor’s consent to a plea is premised on a negotiated sentence and a lesser sentence is later deemed more appropriate, the People should be given the opportunity to withdraw their consent”]).1 The logic of defendant’s position is that he, too, would have the right to have his plea vacated despite the benefits such an unequivocal windfall would confer. If the sentence as actually modified is improper, the hypothetical modification also would be improper. Conversely, if such a hypothetical modification would not entitle defendant to have his plea vacated, the actual modification does not warrant that relief either. The precise extent of the windfall benefit cannot be outcome determinative. Second, Justice Allen’s approach furthers the People’s strong interest in finality (see People v Keizer, 100 NY2d 114, 118 [2003] [“A guilty plea . . . generally marks the end of a criminal case, not a gateway to further litigation” (citation omitted)]; People v Frederick, 45 NY2d 520, 525 [1978] [“Only rigorous adherence by the courts to a policy of affording guilty pleas a great measure of finality will immunize plea negotiations from indiscriminate potshots”]). Third, albeit relatedly, the measure of protection for the People’s strong finality interest provided by Justice Allen’s ap*6proach is particularly important in light of the absence of any restrictions under current law on the timing of Catu claims. That is, no provision of CPL 440.10 or CPL 440.30 requires that a Catu claim be made within a particular time period or even that it be prosecuted diligently. Accordingly, a defendant may sit back and wait for strategic reasons (until, for example, he has reason to believe a key prosecution witness is or may not be willing or available to testify) before advancing a Catu claim.2 Notably, although defendant was sentenced on May 14, 2002, he did not move until March 2004 to vacate the judgment on the ground that the failure to advise him of the period of postrelease supervision rendered his plea involuntary. Whatever the extent of the lack of diligence and attendant prejudice to the People in this case, a lack of diligence all but inevitably will occasion severe prejudice in at least some cases. Moreover, Justice Allen’s approach is attractive to appellate courts in light of CPL 470.05 (1), which commands that “[a]n appellate court must determine an appeal without regard to technical errors or defects which do not affect the substantial rights of the parties” (emphasis added). This is not to say that a Catu claim is inherently “technical” in nature. As discussed below, the Catu opinion makes clear that substantial rights of a defendant are or at least can be implicated when the direct consequences of a plea are not explained by the trial court to a defendant who offers to plead guilty. But as this case illustrates, it does not follow that substantial rights invariably are implicated let alone compromised whenever a Catu error occurs.3 In addition, key issues on this consolidated appeal may be reasonably *7considered “technical” in nature, such as whether Penal Law § 70.45 (2) should be construed so as to deem a particular period of postrelease supervision to have been imposed whenever a sentencing court fails to specify the period upon sentencing a defendant for a violent felony offense and whether Justice Allen was without authority under CPL 430.10 to modify the sentence. In any event, a reasonable interpretation of CPL 470.05 (1) is that an error or defect is “technical” if it does not affect adversely a substantial right. As discussed above, no substantial rights of defendant were prejudiced by the modified sentence. Accordingly, given this mandate to disregard technical errors, and in the absence of an unequivocal mandate by the Court of Appeals that vacatur of the plea is the only remedy for a Catu violation, defendant’s claim of entitlement to that remedy should be rejected. Defendant advances two distinct arguments in support of reversal, each of which alone would be sufficient to compel vacatur of his guilty plea. He argues both that the sentence modification was barred by CPL 430.10 and that Catu required that his guilty plea be vacated. With respect to the first contention, the controlling precedent is People v Richardson (100 NY2d 847 [2003]). In Richardson, the issue was whether CPL 430.10 prohibited the trial court from modifying the sentences previously imposed on two intentional murder convictions so that they would run consecutively to an undischarged term of imprisonment that had been imposed years earlier on an unrelated murder conviction. By operation of law, the trial court’s failure to specify at the time sentence was imposed that the sentences on the intentional murder convictions would run consecutively to the undischarged term resulted in those sentences running concurrently with the undischarged term (id. at 849, citing Penal Law § 70.25 [1] [a]). In relevant part, CPL 430.10 provides that “[e]xcept as otherwise specifically authorized by law,” a sentence of imprisonment that is “in accordance with law . . . may not be changed, suspended or interrupted once the term or period of the sentence has commenced.” After reviewing its “CPL 430.10 jurisprudence” (100 NY2d at 850), the Court stated that “[d]espite the breadth” of this statutory prohibition, trial courts not only have “the inherent authority to remedy an illegal sentence,” but also may “correct an er*8ror where the sentence imposed deviates from what was expected by the court and the parties when a sentencing agreement was reached” (id. at 850, 851). With respect to the latter class of errors, however, the Court made clear that “[t]he authority to modify a lawful sentence that has commenced is limited to situations where the record in the case clearly indicates the presence of judicial oversight based upon an accidental mistake of fact or an inadvertent misstatement that creates ambiguity in the record” (id. at 853). Here, the error in the sentence originally imposed may well reflect “judicial oversight” (id.), but it was based on an apparent mistake of law, not of fact, and was not an “inadvertent misstatement” (id.) of the type “which our reason tells us is a mere mistake” (id. at 851, quoting People v Minaya, 54 NY2d 360, 365 [1981], cert denied 455 US 1024 [1982] [internal quotation marks omitted]). Accordingly, Justice Allen’s authority to modify the original sentence turns on whether it was an “illegal sentence.” Unlike the “mere mistake” line of cases, determining whether a sentence is “illegal” requires a purely objective analysis. Assuming no dispute about what the sentence imposed was, the inquiry is simply whether the sentence imposed was authorized by law. In People v Williams (87 NY2d 1014 [1996]), for example, the defendant was sentenced to an indeterminate prison term of 3½ to 7 years in prison following his plea of guilty to a class C felony offense. As a first felony offender, however, the applicable provision of the Penal Law required that the minimum period be not “more than one-third of the maximum term imposed” (Penal Law § 70.00 [3] [b]). By contrast, for a second felony offender the law required that the minimum period “be fixed by the court at one-half of the maximum term imposed” (Penal Law § 70.06 [4] [b]). The trial court, acting sua sponte, resentenced the defendant to 3½ to 10½ years, “noting that it had incorrectly sentenced defendant as a predicate rather than as a first felony offender” (People v Williams, 87 NY2d at 1015). The Court of Appeals upheld the sentence modification on the ground that “the trial court had the inherent power to correct an illegal sentence” (id.).4 *9Similarly, in People v DeValle (94 NY2d 870 [2000]), the defendant was sentenced upon his guilty plea to an indeterminate prison term of 2 to 4 years to run concurrently with an undischarged portion of an earlier sentence. Penal Law § 70.25 (2-a), however, “required that defendant’s sentence run consecutively with his prior sentence” (id. at 871). After being so advised by the Department of Correctional Services, the court resentenced the defendant to a consecutive term. As in Williams, the Court of Appeals upheld the sentence modification, holding that “the trial court had inherent power to correct the illegal sentence it initially imposed” (id.). Also as in Williams, the Court made clear that the scope of that power was a separate issue. Under the particular facts in DeValle (i.e., the defendant’s stated position at the resentencing proceeding that he wanted neither to withdraw his plea nor to be resentenced), the trial court did not exceed its authority by imposing a more severe sentence than the one originally promised (id. at 871-872). Although defendant argues that the sentence originally imposed was “perfectly legal,” his argument depends on what the sentence originally imposed was. If the sentence originally imposed was 15 years in prison with five years of postrelease supervision, defendant would be correct. At the original sentencing proceeding, however, Justice Allen stated only as follows: “Very well, then, Mr. Hill, it’s a promised sentence, as you know, 15 years. There will also be a final order of protection which I will sign.” Apart from going on to impose “a court fee called a surcharge” of $200, Justice Allen said nothing else relating to the sentence he was imposing. Moreover, as Justice Allen stated in his written decision on defendant’s motion to vacate, “a five-year period of [postrelease supervision] was added” after the 15-year sentence was imposed, but not by Justice Allen. Rather, as he noted, it was added “presumably by prison authorities acting pursuant to [Penal Law] § 70.45.” Apparently mindful of these undisputed facts, defendant maintains that the “perfectly legal” sentence of 15 years in prison with five years of postrelease supervision was the “sentence imposed by operation of law” under Penal Law § 70.45 (1) and (2). Although subdivision (1) stipulates that “[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision,” nothing in the *10statute specifies that when the sentencing court is silent with respect to the required period of postrelease supervision, a five-year or any other period is deemed to have been imposed. The issue, accordingly, is one the Court of Appeals has not addressed: whether Penal Law § 70.45 should be construed to deem a particular period of postrelease supervision to have been imposed whenever a sentencing court imposes sentence pursuant to Penal Law § 70.02 and fails to specify the period. After providing first that “[t]he period of post-release supervision for a determinate sentence shall be five years,” former subdivision (2) of section 70.45 goes on to create an exception when the defendant has not previously been convicted of a felony offense. Thus, former subdivision (2) states, “except that such period shall be three years whenever a determinate sentence of imprisonment is imposed pursuant to section 70.02 of this article upon a conviction for a class D or class E violent felony offense.”5 This proviso then follows: “provided, however, that when a determinate sentence is imposed pursuant to section 70.02 of this article, the court, at the time of sentence, may specify a shorter period of post-release supervision of not less than two and one-half years upon a conviction for a class B or class C violent felony offense and a shorter period of post-release supervision of not less than one and one-half years upon a conviction for a class D or class E violent felony offense” (Penal Law § 70.45 [2] [emphasis added]).6 As is evident, it is sensible to construe Penal Law § 70.45 (2) to deem a five-year period of postrelease supervision to have been imposed whenever a sentencing court fails to specify the period upon sentencing a second felony offender to a determinate sentence for a violent felony offense pursuant to Penal Law § 70.04 or § 70.06 (see People v Lingle, 34 AD3d 287 [2006]; People v Sparber, 34 AD3d 265 [2006]). After all, no period of postrelease supervision is authorized other than the five-year *11period specified in subdivision (2). For all violent felony offenders who are not second felony offenders, however, the statute permits the trial court to choose from within a range of periods of postrelease supervision and select the period it deems appropriate in each particular case; no period within the ranges, moreover, enjoys any presumptive status.7 When a court imposes sentence pursuant to Penal Law § 70.02 for a violent felony offense and fails to specify the period of postrelease supervision, it arguably would not be unreasonable to conclude that either a three- or five-year period of postrelease supervision is deemed to have been imposed as a matter of law. Some support for that conclusion is provided by the permissive language of the proviso (“the court . . . may specify a shorter period” [emphasis added]) that follows the two declarations that the period “shall be” five or three years. But that conclusion does not necessarily follow, as it does when sentence is imposed for a violent felony offense pursuant to Penal Law § 70.04 or § 70.06 and the court similarly fails to specify a period of postrelease supervision, from the absence of any autho*12rized period of postrelease supervision other than a three- or five-year period. An alternative construction of Penal Law § 70.45 (2) is suggested by the Court of Appeals’ decision in People v Richardson (100 NY2d 847 [2003]). In Richardson, the trial court failed to specify at the time of sentencing whether the consecutive sentences it imposed on two intentional murder convictions were to run concurrently or consecutively to an undischarged term of imprisonment. While no provision of law required the trial court to specify whether the sentences would run concurrently or consecutively, the governing statute expressly specifies the legal consequences of a trial court’s omission. As the Court of Appeals stressed in quoting Penal Law § 70.25 (1) (a), “[i]f the court does not specify the manner in which a sentence imposed by it is to run . . . [a]n indeterminate or determinate sentence shall run concurrently with all other terms” (id. at 852). Accordingly, albeit implicitly, the Court held that concurrent sentences were the sentences originally imposed and that these sentences were lawful (id. at 852-853). Thus, the absence of a comparable provision in Penal Law § 70.45 (2) specifying the default rule supports the conclusion that no period of postrelease supervision is deemed to have been imposed when a court sentences a defendant pursuant to Penal Law § 70.02 for a violent felony offense and does not specify the period of postrelease supervision. In construing a statute, moreover, the touchstone is the intent of the Legislature (see Riley v County of Broome, 95 NY2d 455, 463 [2000]). At least in some cases, the failure of a sentencing court to specify a period of postrelease supervision will reflect a mere oversight or failure to appreciate that the court has the discretionary authority to select the appropriate period from within the specified range, not a conscious belief that a three- or five-year period, as the case may be, both is the appropriate period and the legal consequence of its silence. If we assume the Legislature was aware of that practical reality, it is hardly obvious that the Legislature intended the maximum permissible period of postrelease supervision to be imposed automatically whenever a sentencing court fails to specify a period of postrelease supervision in imposing sentence pursuant to Penal Law § 70.02. That would mean, after all, that the Legislature intended the maximum period to be imposed even though, at least in some cases, the sentencing court would have determined in its discretion that a lesser period was appropriate. On this score, finally, the rule of lenity *13also counsels in favor of not construing Penal Law § 70.45 (2) as providing for such a default rule (see People v Green, 68 NY2d 151, 153 [1986]; Huddleston v United States, 415 US 814, 830-831 [1974]).8 In short, the better conclusion is that no period of postrelease supervision is imposed by operation of law when a sentencing court does not specify a period upon sentencing a defendant for a violent felony offense pursuant to Penal Law § 70.02. Accordingly, it follows that the sentence actually imposed by Justice Allen was illegal, because “[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision” (Penal Law § 70.45 [1]). Because the sentence originally imposed was illegal, Justice Allen had the authority to modify it, sua sponte or otherwise (see People v Wright, 56 NY2d 613 [1982]). The only remaining issue is whether Justice Allen exceeded the scope of that authority. In turn, that issue reduces to whether People v Catu (supra) required that Justice Allen respond to the illegality of the sentence solely by vacating defendant’s conviction.9 But even assuming that a five-year period of postrelease supervision was imposed by operation of law, defendant would not be entitled to reversal for that reason. To be sure, the *14mistake made in this case does not fall within the class of “mere mistake[s]” (Richardson, 100 NY2d at 851) that the Court of Appeals has held to be within the inherent authority of the sentencing court to remedy. But no case binding on this Court or the Court of Appeals precludes recognition of an additional exception to the prohibition of CPL 430.10, which “essentially restates the common law . . . and does not alter the power of a court to correct errors or mistakes concerning sentences” (People v Minaya, 54 NY2d 360, 364 [1981] [citations omitted]; see also id. at 366 [recognizing sentencing court’s inherent authority to correct its mistake and observing that “we know of no case binding on this court” which would bar correction of the error]). Such an additional exception to the statutory prohibition of CPL 430.10 should be recognized for the same key reason that Catu should not be construed to require that defendant’s conviction be vacated: a contrary conclusion is inconsistent with the mandate of CPL 470.05 (1) to decide appeals without regard to technical defects. Although the Catu opinion does not expressly establish a per se rule of reversal, nothing therein suggests that some failures to advise a defendant about postrelease supervision do not require that the guilty plea be vacated. To the contrary, the opinion broadly states that “[b]ecause a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction” (4 NY3d at 245). Apart from referring to what such a failure of “a court” requires, rather than what was required by the failure so to advise Catu, the Court immediately went on to make clear that harmless error analysis is not applicable to such failures (id.). Despite the broad scope of the Court’s reasoning in Catu, it is axiomatic that an appellate court decides only the case before it (see Matter of Seelig v Koehler, 76 NY2d 87, 92 [1990] [distinguishing prior decisions and observing that “the identification and weighing of all the unique and particular facts of each case governs”], cert denied 498 US 847 [1990]; Roosa v Harrington, 171 NY 341, 350 [1902] [“each case, as it arises, must be viewed and decided according to its own particular facts and circumstances, and will become a controlling precedent, only, where the facts are the same”]). In Catu, the lowest determinate *15sentence authorized for a second felony offender, like Catu, convicted of attempted robbery in the second degree, a class D violent felony offense (Penal Law § 70.02 [1] [c]), is three years (Penal Law § 70.06 [6] [c]). As the Court’s opinion states, that is the sentence Catu received (4 NY3d at 244). Because he received the minimum sentence authorized by law, neither the Court nor the parties had any occasion to discuss the extent to which a sentence reduction might be an adequate remedy. In Van Deusen (7 NY3d 744 [2006]), the trial court did not make any mention of postrelease supervision in the course of accepting the defendant’s plea of guilty to first-degree robbery and promising a sentence of not less than five or more than 15 years in prison. At sentencing, the defendant moved to withdraw the plea on the ground that she had not been advised she was subject to postrelease supervision. The trial court denied the motion and sentenced her to eight years’ imprisonment and five years of postrelease supervision (id. at 745). Reversing the Appellate Division, which had affirmed, the Court of Appeals vacated the guilty plea. Quoting from Catu, the Court stated that “ ‘[bjecause a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction’ ” (id. at 745-746, quoting People v Catu, 4 NY3d at 245). The Court went on to hold as follows: “While defendant’s sentence here, including postrelease supervision, was actually less than the maximum potential period of incarceration that she agreed to serve, this case is still indistinguishable from Catu. At the time defendant pleaded guilty, she did not possess all the information necessary for an informed choice among different possible courses of action because she was not told that she would be subject to mandatory postrelease supervision as a consequence of her guilty plea. Accordingly, defendant’s decision to plead guilty cannot be said to have been knowing, voluntary and intelligent” (Van Deusen, 7 NY3d at 746). Here, as in Catu and Van Deusen, defendant unquestionably did not possess all the information necessary for an informed choice. In a critical respect, however, this case nonetheless is *16distinguishable from both Catu and Van Deusen. In both Catu and Van Deusen, no lawful action could be taken in those cases after the plea was entered—other than vacating the plea—that would render academic the claim that the defendant did not make an informed choice. In this case by contrast, the modification of defendant’s sentence did precisely that. As discussed above, there is no rational reason why defendant, having accepted a sentence of 15 years in prison, would reject a sentence of 121/2 years in prison and 2V2 years of postrelease supervision. As a result of the sentencing modification, in other words, it can be said that defendant was not prejudiced in the slightest by not being aware at the time of the plea that a period of postrelease supervision was mandatory. Indeed, the modification put defendant in a better position than he would have been if the promised sentence lawfully could have been imposed. To vacate the plea under these circumstances would confer upon defendant a benefit—and, depending on subsequent events, perhaps a windfall—that is not necessary to rectify the wrong done at the plea. By contrast, to recognize that defendant was not prejudiced by the Catu violation in light of the sentencing modification and affirm the judgment of conviction would promote the People’s strong interest in finality (see People v Keizer, 100 NY2d at 118; People v Frederick, 45 NY2d at 525). Moreover, the sentencing modification essentially operated to give defendant the full benefit of the sentence he was promised at the time of the plea. As the Court of Appeals has stated, “the failure or inability to fulfill a [sentencing] promise requires either that the plea of guilty be vacated or the promise fulfilled, but there is no indicated preference for one course over the other” (People v Selikoff, 35 NY2d 227, 239 [1974], cert denied 419 US 1122 [1975]). To the contrary, “[t]he choice rests in the discretion of the sentencing court” (id.). As noted, the Court held in Van Deusen that the case was “indistinguishable from Catu” even though the “defendant’s sentence . . . , including postrelease supervision, was actually less than the maximum potential period of incarceration that she agreed to serve” (Van Deusen, 7 NY3d at 746). This observation does not render this case indistinguishable from Van Deusen. To the contrary, Van Deusen would be indistinguishable only if the sentence therein, including postrelease supervision, was actually less than the minimum period of incarceration that she had agreed to serve. Here, the modified sentence, including postrelease supervision, is actually less than the *17sentence defendant agreed to serve. Under these circumstances, where defendant was not adversely affected in any way by the Catu error, it makes no sense to vacate the plea merely because, at the time of the plea, defendant “did not possess all the information necessary for an informed choice among different possible courses of action” (id.). The insignificance of the Catu error in this case can be appreciated more readily by considering what the fate of Catu claims would be if the requirement of a period of postrelease supervision were to be repealed pursuant to a statute made effective as to all cases in which sentence had not yet been imposed. Surely a defendant who pleaded guilty prior to such an enactment and had an otherwise viable Catu claim could not plausibly insist at sentencing that the court was required to vacate the plea. The postplea enactment would eliminate any possible prejudice and thus render academic the claim that the defendant did not possess all the necessary information at the time of the plea. In other words, by virtue of the postplea enactment, what had been a necessary item of information became an irrelevancy. In this case, the postplea sentencing modification similarly eliminated any possible prejudice to defendant. To be sure, unlike this hypothetical defendant, defendant will serve a period of postrelease supervision. Nonetheless, the sentencing modification put defendant in a better position than he would have been if the promised sentence lawfully could have been imposed. By virtue of the postplea sentencing modification, what had been a necessary item of information became an irrelevancy. In concluding that Van Deusen is indistinguishable, the dissent mistakenly focuses on the fact that the sentence actually imposed was less than “the maximum sentencing exposure for which she bargained” (emphasis added). If the defendant in Van Deusen had known she would receive a sentence of eight years in prison and five years of postrelease supervision, it certainly is possible she might not have decided to plead guilty. A different conclusion is not required simply because she was told at the time of the plea that she could receive as much as 15 years in prison. After all, it is possible she pleaded guilty in the hope or belief that she would receive a sentence of five years. Accordingly, in Van Deusen the Court of Appeals had good reason not to be impressed by the fact that the sentence actually imposed was less than the maximum sentence for which she bargained. Consider, however, how different the analysis would be if the sentence actually imposed in Van Deusen had been 21/2 years in *18prison and 21/z years of postrelease supervision, i.e., a total sentence less than the minimum period of incarceration to which she was exposed. Obviously, it cannot be supposed that the defendant would not have pleaded guilty if she had known that the sentence would be equal to or less than the minimum sentence for which she bargained. Similarly, and the dissent apparently agrees, it cannot be supposed that defendant would not have pleaded guilty if he had known that the sentence actually imposed would be a term of 1272 years in prison with 27s years of postrelease supervision. Thus, to reiterate, Van Deusen would be indistinguishable only if the sentence actually imposed had been less than the minimum period of incarceration that she had agreed to serve. Finally, one other observation about the dissent’s writing is in order. Albeit with some uncertainty, the dissent concedes that “the sentencing court’s remedy was at least arguably sensible, while defendant’s position appears not to be.” By thus hedging its concession, the dissent avoids deciding whether defendant is complaining about a “technical error[ ] or defect[ ] which do[es] not affect [his] substantial rights” (CPL 470.05 [1]). Unless the unequivocal mandate of the Legislature to appellate courts can be disregarded, however, the Court must decide that very issue. Moreover, although the dissent refers to the sentencing court’s “arguably sensible” remedy, it does not explain how that remedy might have been inadequate to prevent prejudice to one of defendant’s substantial rights. Accordingly, the judgment of the Supreme Court, New York County (Bruce Allen, J.), rendered May 14, 2002, as amended May 31,. 2005, convicting defendant, upon his plea of guilty, of rape in the first degree, and sentencing him to a term of 1272 years with 27a years of postrelease supervision, and the order, same court and Justice, entered on or about May 31, 2005, which denied defendant’s CPL 440.10 motion to vacate the judgment and modified the sentence, should be affirmed. Marlow, J. (dissenting). I would reverse. Defendant pleaded guilty based upon a promise that he would receive a 15-year definite prison term. However, the plea was defective, because the court did not inform defendant at the time he pleaded guilty that the promised sentence would be followed by five years of mandatory postrelease supervision (see People v Catu, 4 NY3d 242 [2005]). Accordingly, defendant moved to vacate the sentence, a motion the court granted to the extent of modifying defendant’s sentence so that the jail time and mandatory post-*19release supervision together equaled the promised 15-year sentence under the plea agreement. Notwithstanding the sentencing modification, defendant nonetheless maintains he is entitled to nothing less than vacatur of his plea. I agree with the majority to the extent that the sentencing court’s remedy was at least arguably sensible, while defendant’s position appears not to be. There is no question that the modified sentence is a more lenient one and that defendant is better off than he would have been had the court been able to impose the sentence, as originally promised, of 15 years, with no postrelease supervision. Defendant would have us believe that he would rather face an uncertain total sentence greater than 15 years, if convicted after a future trial upon vacatur of his defective plea, than the 12V2 years in prison followed by 2V2 years’ postrelease supervision as imposed by the sentencing court. In any event, regardless of whether defendant’s present claim is or is not sincere, I believe that the following clear language in the Court of Appeals’ recent decision in People v Van Deusen (7 NY3d 744, 746 [2006]) requires that the plea be vacated: “While defendant’s sentence here, including postrelease supervision, was actually less than the maximum potential period of incarceration that she agreed to serve, this case is still indistinguishable from Catu. At the time defendant pleaded guilty, she did not possess all the information necessary for an informed choice among different possible courses of action because she was not told that she would be subject to mandatory postrelease supervision as a consequence of her guilty plea” (emphasis added). I believe this broad language in Van Deusen encompasses defendant’s situation notwithstanding that Van Deusen was promised a certain sentencing range and this defendant was promised a definite sentence. The Court of Appeals was apparently not persuaded by the fact that Van Deusen’s sentence, including postrelease supervision, was less than the maximum sentencing exposure for which she bargained. Here, the sentencing court modified defendant’s sentence so the total sentence, including postrelease supervision, would equal the promised sentence. I perceive no difference in these two sentencing promises which would warrant disparate remedies—a vacatur for Van Deusen as the Court of Appeals held, and sentence modification for this defendant as the majority maintains—in light of Van Deusen’s above-quoted focus on the question of *20whether the defendant possessed all the information necessary to make an informed choice regarding the plea, not on whether the ultimate sentence the court actually imposed comported with its sentence promise. In my view, because Van Deusen appears dispositive, the issue discussed by the majority regarding the legality of the sentence originally imposed need not be reached. I also believe that, in the aftermath of People v Van Deusen, this Court may not carve out an additional exception to the statutory prohibition of CPL 430.10, as the majority asserts, and I respectfully disagree with the majority’s further position that CPL 470.05 (1) requires remedies other than vacatur in situations like this. Given the present state of the law, Van Deusen’s interpretation of Catu’s language appears to control. Any statutory changes should be left to the Legislature and any exceptions to the Van Deusen and Catu holdings, in my judgment, should reside exclusively with the Court of Appeals. Gonzalez and Catterson, JJ., concur with McGuire, J.; Saxe, J.E, and Marlow, J., dissent in a separate opinion by Marlow, J. Judgment, Supreme Court, New York County, rendered May 14, 2002, as amended May 31, 2005, and order, same court, entered on or about May 31, 2005, affirmed. . Here, of course, the People are not seeking to have the plea vacated. Indeed, as Justice Allen’s written opinion indicates, the People suggested the modification in their opposition to defendant’s motion to vacate. . Only one particular ground for relief under CPL 440.10—claims of newly discovered evidence—is subject to an express, due diligence requirement (CPL 440.10 [1] [g]). CPL 440.10 (3) (a) is not to the contrary. Although it creates a discretionary due diligence bar to certain CPL 440.10 motions, the bar arises only when the movant previously has appealed from the judgment and the ground raised in the motion was not determined upon the appeal. Thus, it does not purport generally to require that CPL 440.10 claims be raised with due diligence. Rather, its evident purpose is to permit the court to deny a second bite at the apple of review when a CPL 440.10 claim could have been raised with due diligence on direct appeal. Because defendant had not perfected his direct appeal at the time he moved to vacate the judgment pursuant to CPL 440.10, the People did not and could not ask Justice Allen to deny the motion under CPL 440.10 (3) (a). . The substance of a Catu claim is that the defendant did not “knowingly, voluntarily and intelligently choose among alternative courses of action” (Catu, 4 NY3d at 245) due to not being aware of the postrelease supervision component of the sentence. Obviously, at least some such claims will be raised *7by defendants whose attorneys were sufficiently circumspect as to have informed them of that component prior to the plea. . The extent of that power, of course, is a separate issue. The Court rejected the defendant’s double jeopardy objection to the modification on the ground that it “would be colorable only if the defendant’s sentence had been increased beyond his legitimate expectations of what the final sentence should *9be” (id.). During the plea proceedings, the defendant was advised that he could receive a sentence of up to 15 years in prison (id.). . Although subdivision (2) of Penal Law § 70.45 was amended, effective January 13, 2005 (see L 2004, ch 738, § 35), the amendments do not affect the issue of whether a five-year period of postrelease supervision should be deemed to have been imposed whenever a sentencing court fails to specify the period upon sentencing a defendant pursuant to Penal Law § 70.02 for a class B or class C violent felony offense. . Defendant was convicted of the class B violent felony offense of rape in the first degree (Penal Law § 130.35 [1]; § 70.02 [1] [a]) and was sentenced pursuant to Penal Law § 70.02. . The statute cannot be construed to authorize the Department of Correctional Services to impose the appropriate period of postrelease supervision whenever a trial court fails to perform the duty the statute enjoins it to perform. No language in the statute supports such a construction, and determining the appropriate sentence within the ranges prescribed by the Legislature is quintessentially a judicial function (see People v Ramirez, 89 NY2d 444, 449-450 [1996]; People v Farrar, 52 NY2d 302, 305-306 [1981]; Hill v United States ex rel. Wampler, 298 US 460, 464 [1936]). Indeed, a panel of the Second Circuit has held that a defendant’s right to due process under the Federal Constitution was violated when the sentencing court made no mention of a period of postrelease supervision in imposing sentence and the Department of Correctional Services thereafter added a five-year period of postrelease supervision to his sentence (Earley v Murray, 451d 71, 74-76 [2d Cir 2006]). The court also held that even if a five-year period of postrelease supervision was mandated by Penal Law § 70.45 (2), under the Supreme Court’s decision in Wampler it could become part of the sentence consistent with due process only through a judicial sentencing proceeding (id.). We need not determine whether we agree with this reading of Wampler. Rather, it is sufficient to note that a significant constitutional issue would be raised if Penal Law § 70.45 (2) were construed to mandate the longest of the authorized periods of postrelease supervision (five years for a class B or C violent felony offense and three years for a class D or E violent felony offense) whenever sentence is imposed pursuant to Penal Law § 70.02 and the sentencing court fails to specify the period of postrelease supervision. Avoiding that constitutional question provides another reason to conclude that under such circumstances no period of postrelease supervision is added to a defendant’s sentence by operation of law (see Jones v United States, 526 US 227, 239 [1999]). . There is authority for the proposition that a five-year period of postrelease supervision was added to defendant’s sentence by operation of law (see People v Hollenbach, 307 AD2d 776 [4th Dept 2003], lv denied 100 NY2d 642 [2003]; People v Bloom, 269 AD2d 838 [4th Dept 20001, lv denied 94 NY2d 945 [2000]), including this Court’s decision in People v Adams (13 AD3d 76 [2004], lv denied 4 NY3d 851 [2005]; cf. People v Crump, 302 AD2d 901 [4th Dept 2003], lv denied 100 NY2d 537 [2003] [concluding that a three-year period of postrelease supervision was imposed by operation of law when defendant was sentenced, pursuant to Penal Law § 70.02, for a class D violent felony offense]). In Adams, which we decline to follow, this Court cited only the Fourth Department’s decision in Hollenbach (supra) for essentially that proposition. In Hollenbach, the Fourth Department stated that “[b]ecause Penal Law § 70.45 (2) provides that the period of postrelease supervision on a conviction of a class C violent felony offense is five years, ‘unless the court specifies a shorter period,’ there is no need for the court to specify a period of postrelease supervision at sentencing” (307 AD2d at 776 [citations omitted]). To the extent Hollenbach thereby suggests that the phrase “unless the court specifies a shorter period” appears in Penal Law § 70.45 (2), it is not correct. In fact, as is clear from Bloom (supra), one of the two decisions cited in Hollenbach, the phrase represents the opinion of a commentator (Bloom, 269 AD2d at 838, quoting Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 70.45, 1999-2000 Interim Pocket Part, at 81; see current Practice Commentary, Book 39, Penal Law § 70.45, at 396 [2004]). . For the reasons discussed below, Catu should not be read to require vacatur of the conviction.

OPINION OF THE COURT Fisher, J. The issue presented on this appeal concerns the extent to which a municipality may be held liable for the way it responds to a suspected outbreak of a communicable disease at a school. Our Lady of Lourdes School is a parochial school run by the Roman Catholic Diocese of Brooklyn (hereinafter the Diocese) as an extension of Our Lady of Lourdes Church (hereinafter the church). The plaintiffs are current and former students and teachers who attended or worked at the school in 2002, as well as the parents and siblings of the students and spouses of the teachers. They commenced this personal injury action against the school, the church, the Diocese, the school’s principal, one of its former teachers, and the priest who served as pastor of both the church and the school. The plaintiffs also named as defendants the City of New York and the New York City Department of Health and Mental Hygiene (hereinafter the Department). The events in question began when, in mid-August of 2002, a teacher, who had worked at the school during the 2001-2002 school year, informed the Diocese and the school’s principal that he had been diagnosed with active tuberculosis. The principal, *23in turn, notified the Department, which had already received the same information from the teacher’s physician. The plaintiffs concede, however, that the Department had no knowledge of the teacher’s condition before August 2002. Upon being told that the teacher would not be returning for the fall semester, a Department representative advised the principal that the school could reopen on schedule in September and that the Department would conduct an investigation thereafter. On or about September 9, 2002, the principal was contacted by a member of the Department’s Epidemiology Unit, Magali Calderon, who asked for the names and addresses of all students who had attended classes taught by the former teacher during the prior academic year. Calderon explained that, because tuberculosis has an incubation period of 8 to 12 weeks, meaningful testing could not begin until approximately October 2002. This conversation was followed by a letter from Calderon, dated September 16, 2002, confirming that the Department was obligated to conduct an investigation pursuant to the New York City Health Code and the New York State Sanitary Code, and warning the principal that the information conveyed to him was confidential and could not be disclosed except as authorized by law. The school opened on schedule in September and, in October, the Department conducted tests on 66 at-risk students. Of these, 45, or approximately 68%, tested positive for tuberculosis. On November 7, 2002, the Department held a public meeting “to discuss the outbreak and spread of tuberculosis at the [school],” and the Department thereafter continued to test, notify, and monitor at-risk individuals within the school community. The amended complaint generally alleged that the City and the Department owed a special duty to the plaintiffs, which they breached by failing timely to notify persons at risk of infection and other proper parties, by permitting the school to reopen in September 2002, and by failing properly to treat, diagnose, and monitor the plaintiffs. The plaintiffs also allege that the Department violated various unspecified federal, state, and local laws as well as its own internal protocols. The crux of the amended complaint and cross claims, insofar as asserted against the City and the Department, is that they did too little too late to ascertain the existence of, and contain, the outbreak of the disease. The City and the Department filed a pre-answer motion pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint *24and all cross claims insofar as asserted against them on the ground of governmental immunity. The Supreme Court granted the motion, and these appeals by the plaintiffs and the remaining defendants followed. Accepting as true all of the foregoing factual allegations which are drawn from the amended complaint and additional submissions by the nonmoving parties, and according the nonmoving parties all favorable inferences that may be drawn from those submissions (see Swift v New York Med. Coll., 25 AD3d 686, 687-688 [2006]), the plaintiffs may well be correct in asserting that the City and the Department mishandled the developing situation at the school. In scheduling testing, for example, the Department allegedly was guided by the fact that the incubation period for tuberculosis was between 8 and 12 weeks. But the former teacher was diagnosed with the disease in August, raising the possibility that he was already a carrier of the disease during the spring 2002 semester while he was still teaching. Yet, the Department did not administer tests immediately on his former students, opting instead to wait several more weeks, allowing at least some, and perhaps many, of those individuals to return to school and come into contact with other students and school personnel. Nevertheless, even if the City and the Department were shown, in hindsight, to have exhibited poor judgment, they are not liable to the plaintiffs in the circumstances of this case. At the outset, the plaintiffs contend that the City and the Department are not shielded by governmental immunity because their negligence stems from a failure to perform “largely ministerial” tasks. Although it is true that a ministerial act may subject a municipality to liability for negligence and is not protected by governmental immunity (see Lauer v City of New York, 95 NY2d 95, 99 [2000]; Tango v Tulevech, 61 NY2d 34, 40-41 [1983]), we disagree that the allegations in the amended complaint make out a ministerial wrong. To the contrary, the investigation of a possible outbreak of tuberculosis in a school calls for the exercise of discretion and judgment by city and department officials and cannot be characterized as ministerial (see 10 NYCRR 2.6 [a] [upon receiving report of a case of communicable disease, health officer required to “make such an investigation as the circumstances may require for the purpose of verifying the diagnosis, ascertaining the source of infection and discovering contacts and unreported cases”]; NY City Health Code [24 RCNY] § 11.47 [b] [Department may require *25testing of household and nonhousehold contacts of a case of active tuberculosis]). And the rule of governmental immunity is that, absent proof of a special relationship between the plaintiff and the municipality (see Kovit v Estate of Hallums, 4 NY3d 499, 506 [2005]), “when official action involves the exercise of discretion, the [municipality] is not liable for the injurious consequences of that action even if resulting from negligence or malice” (Tango v Tulevech, supra at 40; see Kelleher v Town of Southampton, 306 AD2d 247, 248 [2003]). While the existence of a special relationship depends on the facts, “a plaintiff has a heavy burden in establishing such a relationship” and, as a result, most such claims fail and are dismissed as a matter of law (Pelaez v Seide, 2 NY3d 186,199 n 8 [2004] [and cases cited therein]). “A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” (Pelaez v Seide, supra at 199-200). As to the first, “[t]o form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action” (id. at 200; Lauer v City of New York, supra at 100-101). Contrary to the plaintiffs’ contention here, neither the New York City Health Code nor the New York State Sanitary Code creates a private right of action in favor of persons at risk of contracting tuberculosis or other reportable or communicable diseases (see generally NY City Health Code [24 RCNY] art 11; 10 NYCRR part 2; cf. Candelario v Teperman, 15 AD3d 204, 205 [2005]; Ellis v Peter, 211 AD2d 353, 357-358 [1995]). Thus, assuming that the Department failed to comply with applicable laws and regulations in its investigation, that failure, in and of itself, does not provide a basis to establish the requisite special relationship. The laws and regulations of this State pertaining to the control of reportable or communicable diseases were enacted to protect the public in general, and not a particular class of persons such as schoolchildren or teachers. Stated otherwise, they “were intended to benefit the injured [plaintiffs], but in the broad sense of protecting all members of the general public similarly situated” (O’Connor v City of New York, 58 NY2d 184, 190 [1983]). Thus, the plaintiffs have failed *26to plead the existence of a special relationship through breach of a statutory duty. As to the second way of forming a special relationship, viz., by the municipality’s voluntary assumption of an affirmative duty and the plaintiffs’ justifiable reliance on the municipality’s undertaking, four elements must be shown: “(1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of a municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” (Pelaez v Seide, supra at 202; see Laratro v City of New York, 8 NY3d 79 [2006]; Kovit v Estate of Hallums, supra at 506-507; Lauer v City of New York, supra at 102; Cuffy v City of New York, 69 NY2d 255, 260 [1987]). Here, the plaintiffs have failed to plead any type of direct contact between themselves and the City or the Department on which justifiable reliance may be predicated (see Laratro v City of New York, supra at 83; Kovit v Estate of Hallums, supra at 507). Indeed, the heart of their claim is that the City and the Department failed to contact them in a timely manner regarding the possibility of a tuberculosis outbreak. While there undoubtedly was contact between the Department and at least some of the plaintiffs in the course of the Department’s investigation in September, October, and November of 2002, that contact occurred after the alleged wrongs had already been committed, and are therefore irrelevant to the plaintiffs’ claims. Admittedly, there are factual allegations in the record of prior direct contacts between the Department and the school principal, which, in theory, could form the basis of a “special relationship” giving rise to a right of contribution in favor of the school (see Garrett v Holiday Inns, 58 NY2d 253 [1983]). But neither the pleadings nor the additional opposition papers tendered by the school set forth facts sufficient to establish either that the City or the Department voluntarily assumed an affirmative duty or that it had knowledge that inaction could lead to harm. In order for the City or the Department to have voluntarily assumed an affirmative duty, they must be shown to have voluntarily agreed to do something they were not already obligated by law to do. Contrary to the contention of the plaintiffs and the school, the failure to perform a statutory duty, or the *27negligent performance of that duty, cannot be equated with the breach of a duty voluntarily assumed (see Pelaez v Seide, supra at 202-203). Here, the record is devoid of evidentiary facts suggesting that the City or the Department voluntarily undertook any obligation beyond what they were already required to do, i.e., investigate a possible outbreak of tuberculosis pursuant to the New York City Health Code and the State Sanitary Code. Moreover, to show that the City or the Department had knowledge that inaction could lead to harm, the plaintiffs or the school would have to plead facts sufficient to show that the City and the Department were “clearly on notice of palpable danger, as where it is so obvious that a layman would ascertain it without inquiry” (Kovit v Estate of Hallums, supra at 507-508). This standard is an exacting one. For example, in Lazan v County of Suffolk (4 NY3d 499, 507-508 [2005]), a companion case to Kovit v Estate of Hallums (supra), the plaintiff pulled his car over to the shoulder of the Long Island Expressway. When a police cruiser arrived at the scene, the driver informed the officer that “he had chest pains and was not feeling well” (Lazan v County of Suffolk, 4 NY3d at 507). The officer nevertheless directed him to move his car to the nearest service station. The plaintiff did as instructed, but soon lost control of the vehicle and sustained serious injuries when he drove into a guardrail and a telephone pole. The Court of Appeals, noting that the officer could not be expected “to make a refined, expert medical diagnosis of a motorist’s latent condition” (id. at 508), held that the plaintiffs complaints of chest pain and “not feeling well” were insufficient to place the municipality on notice that the plaintiff was too ill to drive (id.). Here, the amended complaint alleged that the Department knew, in August 2002, that a former teacher at the school, who would not be returning to teach in the fall, had been diagnosed with tuberculosis. No other confirmed cases involving students or school personnel were known at that time. While the risk of further, undiagnosed tuberculosis cases was real, there is no allegation that the City or the Department ignored that risk. Rather, the plaintiffs and the school allege only that the City and the Department did not act quickly enough in light of the circumstances. We cannot conclude, however, that the risk of undiagnosed tuberculosis cases at the school amounted, under the facts alleged in the amended complaint, to a danger “so obvious that a layman would ascertain it without inquiry” (Kovit v Estate of Hallums, supra at 508). *28As to the third and final way a special relationship may be formed, liability founded on a municipality’s assumption of positive direction and control in the face of a known, blatant, and dangerous safety violation has been recognized only in rare circumstances, as when a municipality, having actual knowledge of a blatant violation of safety laws, nevertheless provides affirmative assurances of safety on which the injured plaintiff relies (see Garrett v Holiday Inns, supra [town, having actual knowledge of fire and safety law violations, nevertheless affirmatively certified the premises as safe]; Smullen v City of New York, 28 NY2d 66 [1971] [inspector gave verbal assurances to worker that an unshored trench was safe]). The municipality’s failure to act in the face of a hazard—even a blatantly dangerous one, such as a disabled car stalled in the middle of a highway on a moonless, foggy night—is insufficient, in and of itself, to establish a special relationship under this test (see Pinkney v City of New York, 50 AD2d 928 [1975], affd 40 NY2d 1004 [1976]; see also De La Paz v City of New York, 294 AD2d 327 [2002]). The municipality must somehow affirmatively act to place the plaintiff in harm’s way, as by giving assurances that the situation is safe when in fact it is not, thereby inducing the plaintiff to embark on a dangerous course he or she would otherwise have avoided. The facts alleged in the amended complaint do not fit within the limited ambit of this exception. While it would have been unlawful, for instance, to permit a student or teacher diagnosed with active tuberculosis to attend the school (see NY City Health Code [24 RCNY] § 11.01 [e]; § 11.47 [c]), the Department did not do so here. The only known case of tuberculosis, from August 2002 until October 2002, was that of the former teacher, who did not return to the school after his diagnosis. The situation faced by the City and the Department in August 2002 therefore was not of a “blatant and dangerous safety violation” (Pelaez v Seide, supra at 203), but of an unknown—though potentially serious—health risk. Moreover, the plaintiffs do not allege that the Department ever falsely represented to anyone that the school was, in fact, safe and disease-free. Rather, the Department allegedly said nothing to persons potentially at risk, and took no steps to stop them from returning to the school while the investigation was pending. Such conduct is insufficient to establish a special relationship necessary for municipal liability. In sum, we find that the allegations against the City and the Department in the amended complaint and in the cross claims, *29even when accepted as true, do not establish the existence of a “special relationship” between the City or the Department, on the one hand, and any of the plaintiffs or the school defendants on the other. Thus, the amended complaint and the cross claims fail to state a viable cause of action against the City or the Department and therefore were properly dismissed insofar as asserted against them. The appellants’ remaining contentions are without merit. Accordingly, the appeal by the defendants Roman Catholic Diocese of Brooklyn, Our Lady of Lourdes School, Michael Pizzingrillo, Mark Kruse, and William A. Smith, from so much of the order as granted that branch of the motion of the defendants City of New York and New York City Department of Health and Mental Hygiene which was to dismiss the complaint insofar as asserted against the defendants City of New York and New York City Department of Health and Mental Hygiene should be dismissed, as those defendants are not aggrieved by the portion of the order, and the order should be affirmed insofar as appealed from. Prudenti, EJ., Mastro and Krausman, JJ., concur. Ordered that the appeal by the defendants Roman Catholic Diocese of Brooklyn, Our Lady of Lourdes School, Michael Pizzingrillo, Mark Kruse and William A. Smith from so much of the order as granted that branch of the motion of the defendants City of New York and the New York City Department of Health and Mental Hygiene which was to dismiss the complaint insofar as asserted against them is dismissed, as those defendants are not aggrieved by that portion of the order (see CPLR 5511); and it is further, Ordered that the order is affirmed insofar as appealed from; and it is further, Ordered that one bill of costs is awarded to the defendants City of New York and New York City Department of Health and Mental Hygiene payable jointly by the plaintiffs and by the defendants Roman Catholic Diocese of Brooklyn, Our Lady of Lourdes School, Michael Pizzingrillo, Mark Kruse and William A. Smith.

OPINION OF THE COURT Per Curiam. Respondent was admitted to the practice of law by this Court on January 10, 1991, and formerly maintained offices for the practice of law in Erie County and Monroe County. By order entered December 31, 2003, we suspended respondent from the practice of law for 18 months and until further order of the Court for misconduct that included failing to provide adequate supervision for two nonlawyer employees and neglecting client matters (Matter of Jayson, 3 AD3d 80 [2003]). Respondent has not applied for reinstatement to practice. The instant proceeding was commenced by the filing of a supplemental petition directed to the commission of acts of misconduct that allegedly occurred during the same time period as the misconduct alleged in the original petition. Respondent filed an answer denying material allegations of the supplemental petition and objecting to the filing of a supplemental petition subsequent to the imposition of discipline by this Court on the charges in the original petition. We appointed a referee to conduct a hearing, and, prior to the hearing, the parties stipulated to amend the answer, thereby resolving outstanding issues of fact. Respondent testified at the hearing regarding matters in mitigation of the charges. The Referee has submitted a report, which the Grievance Committee has moved to confirm. Respondent has cross-moved to dismiss the supplemental petition. As an initial matter, we note our agreement with the respondent that the pleading filed by the Grievance Committee in this matter is incorrectly denominated a supplemental petition. Inasmuch as the original petition was no longer pending when this proceeding was commenced, the pleading at issue herein was a petition and not a supplemental petition. We decline to dismiss the pleading based upon that error, however, and we *32instead, treat the supplemental petition as a petition (see CPLR 103 [c]). Respondent was charged with acts of misconduct arising from his representation of a client who retained him to represent her in a criminal matter. The client entered pleas of guilty under two indictments following the denial of her request for substitution of counsel. We reversed the judgments of conviction, vacated the pleas and remitted the matters for further proceedings on the ground that respondent failed to provide meaningful representation (People v Laraby, 305 AD2d 1121 [2003]). The Referee found, based upon the facts underlying our decision in Laraby, that respondent accepted representation of a client when he knew or should have known that he was unable to provide meaningful representation, that he failed to represent the client zealously, as he was obligated to do, and that he failed to withdraw from representation when it became obvious that he should do so. The Referee further found that respondent had an obligation to refund the retainer fee to his client and that he had failed to do so. Additionally, the Referee found that respondent collected excessive fees from clients, failed to refund unearned fees or to satisfy an arbitration award, issued a check drawn against his trust account that was dishonored for insufficient funds, and, in a matrimonial matter in which he represented the wife, agreed to prepare and file a qualified domestic relations order on behalf of the husband, without making required disclosures to the wife or obtaining her consent. We confirm the Referee’s findings of fact and conclude that respondent violated the following Disciplinary Rules of the Code of Professional Responsibility: DR 1-102 (a) (4) (22 NYCRR 1200.3 [a] [4])—engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5])—engaging in conduct that is prejudicial to the administration of justice; DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7])—engaging in conduct that adversely reflects on his fitness as a lawyer; DR 2-106 (a) (22 NYCRR 1200.11 [a])—entering into an agreement for, charging or collecting an illegal or excessive fee; DR 2-106 (c) (3) (22 NYCRR 1200.11 [c] [3])—entering into an arrangement for, charging or collecting a fee proscribed by law or rule of court; *33DR 2-110 (a) (3) (22 NYCRR 1200.15 [a] [3])—withdrawing from employment without refunding promptly any part of a fee paid in advance that has not been earned; DR 2-110 (b) (2) (22 NYCRR 1200.15 [b] [2])—failing to withdraw from employment when he knows or it is obvious that continued employment would result in violation of a disciplinary rule; DR 5-105 (a) (22 NYCRR 1200.24 [a])—failing to decline proffered employment if the exercise of independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, and a disinterested lawyer would not believe that he or she could competently represent the interest of each client and each client did not consent to the representation after full disclosure of the implications of the simultaneous representation and the advantages and risks involved; DR 5-105 (c) (22 NYCRR 1200.24 [c])—representing multiple clients with differing interests without disclosing the implications of the simultaneous representation and obtaining the consent of the clients to the representation; DR 5-108 (a) (1) (22 NYCRR 1200.27 [a] [1])—representing a client in the same matter in which he represented a former client when the client’s interests are materially adverse to the interests of the former client without obtaining the consent of the former client after full disclosure; DR 6-101 (a) (1) (22 NYCRR 1200.30 [a] [1])—handling a legal matter when he knows or should know that he is not competent to handle it; DR 7-101 (a) (1) (22 NYCRR 1200.32 [a] [1])—intentionally failing to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules; DR 7-101 (a) (3) (22 NYCRR 1200.32 [a] [3])—intentionally prejudicing or damaging a client during the course of the professional relationship; DR 9-102 (b) (1) (22 NYCRR 1200.46 [b] [1])—failing to maintain client funds in a special account separate from his business or personal accounts; DR 9-102 (c) (3) (22 NYCRR 1200.46 [c] [3])—failing to maintain complete records of all funds of a client coming into his possession and to render appropriate accounts to his client regarding them; *34DR 9-102 (d) (22 NYCRR 1200.46 [d])—failing to maintain required records of bank accounts; and DR 9-102 (i), <j) (22 NYCRR 1200.46 [i], lj])—failing to make available to the Grievance Committee financial records required by the disciplinary rules to be maintained. We have considered the matters in mitigation found by the Referee, including that respondent, at the time of the misconduct, suffered from severe health problems. Additionally, we have considered that most of the misconduct that is the subject of the instant proceeding occurred prior to respondent’s suspension. Accordingly, we conclude that respondent should be suspended for 18 months, effective June 30, 2005, and until further order of the Court. Respondent is directed to make restitution pursuant to the order entered herewith. Scudder, PJ., Gorski, Green and Pine, JJ, concur. Order of suspension entered.

OPINION OF THE COURT Per Curiam. Respondent Frank McClain-Sewer was admitted to the practice of law in the State of New York by the Second Judicial Department on September 24, 1986. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department. The Departmental Disciplinary Committee moves for an order pursuant to 22 NYCRR 603.4 (e) (1) (i), immediately suspending respondent from the practice of law until further order of the Court due to his failure to cooperate with the Committee’s investigation into a complaint of professional misconduct which threatens the public interest. The Committee opened an investigation into respondent’s conduct when it received a complaint from Francisco Aponte alleging that respondent neglected the legal matter on which he was retained, that respondent made false promises to Aponte as to the sentence he would receive, and that respondent charged an excessive fee. Respondent failed to respond to the Committee’s initial inquiry regarding the complaint, and thereafter failed to respond to follow-up letters, telephone messages, and the Committee’s judicial subpoena directing respondent’s appearance for deposition and the production of documents. Pursuant to 22 NYCRR 603.4 (e) (1), this Court may suspend an attorney from the practice of law pending consideration of charges of professional misconduct, upon a finding that the attorney is guilty of professional misconduct immediately threatening the public interest. Such a finding may be based upon “the attorney’s failure ... to comply with any lawful demand, of this Court or the Departmental Disciplinary Committee made in connection with any investigation” (22 NYCRR 603.4 [e] [1] [i]). Respondent’s failure to respond to the Committee’s numerous letters, calls, and subpoena seeking a response to the complaint, and his failure to respond to this motion, demonstrates a willful noncompliance with a Committee investigation and threatens the public interest, warranting an immediate suspension from the practice of law (see Matter of Pierini, 21 AD3d 42 [2005]; Matter of Kamgar, 7 AD3d 114 [2004]). *37Accordingly, the Committee’s motion should be granted and respondent suspended from the practice of law, effective immediately, pursuant to 22 NYCRR 603.4 (e) (1) (i), and until the further order of this Court. Andrias, J.P., Saxe, Buckley, Gonzalez and McGuire, JJ., concur. Respondent suspended from the practice of law in the State of New York, effective the date hereof, until such time as disciplinary matters pending before the Committee have been concluded, and until further order of this Court.

In an action by an infant to recover damages for personal injuries, and by her mother to recover damages for medical expenses and loss of services, the appeal, as limited by defendants’ brief, is only by the defendant Board of Education and is only from so much of an order of the Supreme Court, Kings County, dated August 5, 1959, as grants plaintiffs’ motion to strike out from said defendant’s answer, on the ground of insufficiency, the second affirmative defense therein insofar as such defense is asserted by said defendant with respect to the infant plaintiff’s cause of action. Said defense is to the effect that a notice of claim against defendant board was not served upon a person designated for that purpose by section 50-e of the General Municipal Law and by the Education Law. From defendants’ brief it appears that defendant City of New York has withdrawn its appeal completely, and that defendant Board of Education has withdrawn its appeal from every provision of the order other than those mentioned above. Both defendants are represented by the Corporation Counsel of the City of New York. The Special Term found that notice of the accident was given immediately to defendant board when the accident occurred; and that a notice of claim against the board was served upon the Comptroller of the City of New York, but not upon the board. It also appears that said notice was not forwarded to the board and that at the time it was not the policy of the Comptroller’s office to do so or to mark the file as a “ Board of Education ease.” Plaintiffs were examined before the Comptroller. Order insofar as appealed from, and as limited by defendants’ brief, reversed, without costs; and plaintiffs’ motion, insofar as it seeks to strike out for insufficiency the second defense pleaded by the defendant board as against the infant plaintiff, denied. The *772notice of claim was not served upon, nor was it actually received in behalf of defendant Board of Education by, a person designated for that purpose by the applicable statutes (General Municipal Law, § 50-e, subd. 3; Civ. Prac. Act, § 228, subd. 6; Matter of Miller v. New York City Housing Auth., 7 A D 2d 922, affd. 6 N Y 2d 932; Munroe v. Booth, 305 N. Y. 426). Beldoek, Christ, Pette and Brennan, JJ., concur; Nolan, P. J., concurs in result, being of opinion that, as against the infant plaintiff, the second defense pleaded by the defendant board is sufficient as matter of law.

OPINION OF THE COURT Fisher, J. The principal issue presented on this appeal concerns the circumstances under which it is necessary and appropriate to reopen a suppression hearing after witnesses at trial contradict the very testimony that led the hearing court to deny the defendant’s motion to suppress. The defendant was indicted on various counts of burglary, criminal possession of stolen property, and petit larceny. He moved, inter alia, to suppress physical evidence recovered from him at the scene of his arrest as well as potential identification testimony. At a pretrial hearing held on the motion, the People called two witnesses, Sergeant Michael Kreso and Detective Robert Benash, both of the Yonkers Police Department. Sergeant Kreso testified that, on November 21, 2003, at approximately 10:16 a.m., he responded to a radio transmission concerning an Hispanic male “ringing doorbells” in the area of Tibbets Road in Yonkers. At the scene, he spoke with two individuals, James Nolan and Michael McGee, who were residents of the neighborhood. McGee told Kreso that he had observed a man in the area ringing doorbells. Nolan told Sergeant Kreso that he had seen a man leaving 184 Tibbets Road and fleeing towards McLean Avenue. Both Nolan and McGee described the individual they had seen as an Hispanic male wearing a blue jacket with a yellow collar, heading toward McLean Avenue on a yellow scooter with no license plate. While *40Kreso was speaking with the two men, another police officer inspected the outside of 184 Tibbets Road and observed an open window. Kreso broadcast the description he had received from the two witnesses and, at 10:36 a.m., he received a call that a “possible suspect” had been detained a few blocks away. Kreso asked Nolan and McGee to accompany him to that location to identify the individual. They agreed. Kreso testified that they drove to the location and, when they arrived, the defendant was sitting on the sidewalk. He was wearing a blue jacket and a yellow sweatshirt. A yellow scooter was located a few feet away from him. The defendant was not in handcuffs, but there were police officers around him. Both Nolan and McGee identified him as the individual they had seen. According to Kreso, the identification was made at 10:39 or 10:40 a.m. The defendant was then placed under arrest and handcuffed. Detective Benash testified that, at approximately 10:16 a.m. on November 21, 2003, he received a radio transmission of a “[sjuspicious person” on Tibbets Road. Further radio transmissions added that a possible suspect entered a house and left. The description given was of an Hispanic male “on a yellow motor scooter with a blue jacket with a yellow-ish gold collar,” heading toward McLean Avenue. Benash also heard on the radio that “there was an open window at the location . . . [o]n Tibbets Road, where they are investigating a burglary.” A few minutes later, Benash observed the defendant on a yellow motor scooter wearing a blue jacket with a yellow collar, coming toward him. Benash stopped him, identified himself as a police officer, and told him that he was investigating an incident that had happened down the street. He asked the defendant to sit down and bear with him for a few minutes. According to Benash, the defendant was cooperative and caused the detective no concern for his own safety. The defendant sat down and Benash made “small talk” with the defendant. He was not handcuffed, and nothing was taken from him. Benash then heard over the radio that Sergeant Kreso was on his way to the location with two witnesses. When Kreso arrived at the scene, he pulled his vehicle up to within 15 or 20 feet of the defendant. One of the witnesses got out of the car, and Kreso nodded his head, signaling to Benash that the witnesses had identified the defendant. Benash asked the defendant to lie on his stomach, placed him in handcuffs, and frisked him. From a pouch near the defendant’s waist, po*41lice officers recovered two boxes containing jewelry and World War II medals, as well as an envelope with currency. After he was placed under arrest and the property was recovered from him, the defendant reportedly blurted out that the money belonged to a friend and the jewelry belonged to his girlfriend. The property in fact proved to be the fruits of two burglaries, one committed that day at 184 Tibbets Road. Benash’s paperwork reflected that the defendant’s arrest occurred at 10:36 a.m. Based on this evidence, the hearing court determined that “[plrobable cause to arrest the defendant arose once [Nolan and McGee] identified him.” The court denied that branch of the defendant’s omnibus motion which was to suppress physical evidence on the ground that the stolen property had been recovered from the defendant following, and incidental to, his lawful arrest. The court also denied that branch of the defendant’s omnibus motion which was to suppress potential identification testimony, finding that the showup procedure was “not so unnecessarily suggestive so as to create a substantial likelihood of misidentification.” At the trial that followed, the People called both Nolan and McGee as witnesses. With respect to the identification, Nolan testified that when he and McGee were brought to McLean Avenue to view the defendant, the officers at the scene “had him on the ground, cuffing him, and they picked him up and patted him down, took the stuff out of his pockets.” When Nolan first observed the defendant at the scene, “[h]e was face down . . . on the sidewalk.” His hands were cuffed behind his back and the officers were “searching him and picking him up at the same time.” At a sidebar held immediately after this testimony, defense counsel expressed concern that Nolan’s account of the showup identification was “diametrically opposed” to the sworn pretrial testimony of the two officers. The County Court, however, saw the inconsistency as merely raising an issue of credibility. Shortly thereafter, McGee corroborated Nolan’s account of events. He testified that, when he was brought to the location on McLean Avenue, the defendant “was laying on the ground,” “laying down in the street” with police around him. McGee also testified, on direct examination: “I think he was being searched while we identified him. He was detained at that time.” On cross-examination, McGee again stated that, when he made the identification, the defendant was “laying on his stomach” with police around him, physically holding him. *42After this testimony was elicited, the defendant moved to reopen the suppression hearing pursuant to CPL 710.40 (4). The court denied the motion, determining that, because the defendant was presumed to have knowledge of the circumstances surrounding his own arrest, evidence relating to those circumstances would not constitute new and additional facts. The court determined that, in any event, the defendant should have been more diligent in discovering the trial witnesses’ version of events, and should have subpoenaed them to testify to it at the hearing. The jury thereafter convicted the defendant of two counts of burglary in the second degree and one count of criminal possession of stolen property in the third degree. On appeal, the defendant contends, inter alia, that the trial court erred in denying his motion to reopen the hearing. We agree. CPL 710.40 (4) provides that “[i]f after a pre-trial determination and denial of [a suppression] motion the court is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he [or she] could not have discovered with reasonable diligence before the determination of the motion, it may permit [the defendant] to renew the motion before trial or, if suqh was not possible owing to the time of the discovery of the alleged new facts, during trial.” Thus, the court has the discretion to reopen a suppression hearing if the defendant proffers new facts, which could not have been discovered with reasonable diligence before the determination of the motion, and which are pertinent to the suppression issue (see People v Fuentes, 53 NY2d 892 [1981]). The new facts need not, on their face, establish a constitutional violation, but they must be such “that they would materially affect or have affected the earlier [constitutional] determination” (People v Clark, 88 NY2d 552, 555 [1996]). In this case, the hearing court premised its denial of the defendant’s motion to suppress physical evidence on the specific finding that the seizure of that evidence had followed the defendant’s lawful arrest. The arrest had been lawful, the court found, because “[p]robable cause to arrest the defendant arose once the witnesses identified him.” Given the issue as framed by the hearing court, the trial testimony of both Nolan and McGee was certainly pertinent to it because both witnesses testified that the police had the defendant down on the ground and were handcuffing and searching him before they made their identification. Thus, contrary to the finding of the County *43Court, the testimony of the two witnesses went to the heart of the hearing court’s finding of probable cause (see People v Figliolo, 207 AD2d 679, 681-682 [1994]), and therefore raised more than merely a question of credibility (cf. People v Rosa, 231 AD2d 534, 536 [1996]; People v Mack, 224 AD2d 447, 448 [1996]). It is true that, because a defendant is presumed to know the circumstances of his or her own arrest and therefore is capable of eliciting evidence of those circumstances at a pretrial hearing, motions to reopen suppression hearings generally are denied where the new facts proffered go only to the circumstances surrounding the defendant’s arrest (see People v Meachem, 288 AD2d 162 [2001]; People v Morales, 281 AD2d 182 [2001]; People v Young, 278 AD2d 437, 438 [2000]; People v Hankins, 265 AD2d 572 [1999]; People v Adams, 224 AD2d 433, 434 [1996], cert denied 526 US 1101 [1999]; People v Simon, 222 AD2d 1117 [1995]; cf. People v Barrett, 17 AD3d 688 [2005]). The defendant here certainly could be presumed to know the conduct of the police in placing him on the ground, handcuffing him, and searching him. But we cannot draw the further inference, on this record, that he knew whether that conduct had preceded or followed one officer’s signal to another that an identification had actually been made (cf People v Mixon, 292 AD2d 177 [2002]; People v Jordan, 231 AD2d 646 [1996]). Moreover, contrary to the court’s finding, there was no lack of diligence on the defendant’s part in attempting to discover the version of events to which Nolan and McGee would testify at trial (cf. People v Mitchell-Benetiz, 168 AD2d 994 [1990]). In preparing the case, the defense sent its court-appointed investigator to interview residents of the areas of the burglaries including Nolan and McGee. The investigator could not locate Nolan, and McGee declined to speak with him. Nor do we agree with the County Court’s conclusion that the defendant could have, and should have, subpoenaed the witnesses to testify at the hearing. In order, inter alia, to prevent the unwarranted harassment of witnesses, defendants in this state do not have an absolute right to compulsory process at a suppression hearing (see People v Chipp, 75 NY2d 327, 337-338 [1990], cert denied 498 US 833 [1990]; People v Gant, 26 AD3d 516, 517 [2006]; People v Cherry, 26 AD3d 342 [2006]). To the contrary, a defendant’s right to call a complainant or an identifying witness at a suppression hearing is triggered only where the hearing evidence raises substantial issues as to the constitution*44ality of the arrest, the search, or the identification procedure, where the People’s evidence is notably incomplete, or where the defendant otherwise establishes a need for the witness’s testimony (see People v Scott, 290 AD2d 522 [2002]; see also People v Fox, 11 AD3d 709, 709-710 [2004]; People v Miller, 7 AD3d 815, 815-816 [2004]; People v Jackson, 7 AD3d 813, 814 [2004]). Here, the evidence as given by the police witnesses at the suppression hearing, if believed, did not raise any substantial constitutional issue, and was not “notably incomplete” (People v Scott, supra at 522). Moreover, if the defendant did not know whether the identification by Nolan and McGee preceded or followed his arrest, he could not have established a need for the witnesses’ testimony at the hearing. And, even if he had reason to believe that the testimony of the police witnesses was inaccurate in that respect, there can be no assurance, on this record, that he would have been granted the right to call Nolan and McGee as witnesses (see e.g. People v Kidd, 247 AD2d 269 [1998]). Thus, contrary to the finding of the County Court, the denial of the defendant’s motion to reopen the hearing could not be justified by his failure to have subpoenaed Nolan and McGee to testify. Stated simply, the defendant cannot be penalized for failing to do what the law would not have allowed him to do. We conclude, therefore, that the defendant carried his burden of proffering new facts, which could not have been discovered with reasonable diligence before the determination of his motion, and which are pertinent to the suppression issue in that they may well have affected the hearing court’s ultimate determination of probable cause (see People v Figliolo, supra at 681-682; People v Villanova, 179 AD2d 381 [1992]; compare People v DeJesus, 222 AD2d 449, 450 [1995]). Accordingly, the matter is remitted to the County Court, Westchester County, for a de novo suppression hearing before a different judge, and a report thereafter, with respect to those branches of the defendant’s omnibus motion which were to suppress physical evidence and identification testimony, and the appeal is held in abeyance in the interim (see People v Dymond, 130 AD2d 799 [1987]; see also People v Kuberka, 215 AD2d 592, 593 [1995]; People v Veal, 158 AD2d 633 [1990]). Because the same police officers who testified at the first hearing are likely to be called as witnesses at the new hearing, and because the credibility of those officers was, and again will be, in issue, we direct that the new hearing be conducted before a different judge. *45Crane, J.R, Spolzino and Lunn, JJ., concur. Ordered that the matter is remitted to the County Court, Westchester County, for a de novo suppression hearing before a different judge, and a report thereafter, on those branches of the defendant’s omnibus motion which were to suppress physical evidence and identification testimony, and the appeal is held in abeyance in the interim; the County Court shall file its report with all convenient speed.

In an action to recover damages for personal injuries resulting from an intersection collision between the taxicab, owned by defendant Gatke and operated by defendant Dean, in which plaintiffs, were passengers, and the automobile owned by defendant Edward Zraick and operated by his wife, defendant Lorraine Zraick, the defendants Zraick appeal from so much of an order of the Supreme Court, Kings County, dated August 30, 1960, as granted plaintiffs’ motion for summary judgment against them under rule 113 of the Rules of Civil Practice, directed an assessment of the damages against them, and severed the action as against the defendants Gatke and Dean. Order insofar as appealed from reversed, with $10 costs and disbursements, and plaintiffs’ motion for summary judgment as against defendants Zraick denied. In our opinion, despite the admissions of the automobile operator, defendant Lorraine Zraick, an issue of fact still exists as to whether under all the circumstances she exercised due care and caution as she entered the intersection and attempted to proceed through it. Moreover, the denial of summary judgment against this defendant and her husband will further the desirable objective of avoiding an inconsistent result as between them and the defendants Gatke and Dean. Nolan, P. J., Beldoek and Pette, JJ., concur; Kleinfeld and Christ, JJ., dissent and vote to affirm the order insofar as appealed from, with the following memorandum by Christ, J., in which Kleinfeld, J., concurs: The automobile owned by defendant Edward Zraick was driven by his wife, Lorraine Zraick, north on Narrows Avenue into the intersection of 69th Street, in Brooklyn, and struck the side of the westbound taxicab in which plaintiffs were passengers. Mrs. Zraick made certain admissions in her pretrial deposition and in her affidavit in opposition to the motion. She has admitted that at the intersection there was a “ Full Stop ” traffic sign against her; that she saw the sign but nevertheless drove her automobile past it and into the intersection without stopping; that she did not see the taxicab until she hit it, and that her automobile was going at the rate of 10 to 15 miles an hour when the cars collided. Even if the cars which were parked at the curbs blocked her view in the direction from which the taxicab came, that fact does not justify defeat of the motion. She had the duty to stop at the sign which she concedes she saw, and she had the duty to proceed from a standing position in such a manner as would enable her to see ears coming from the taxicab’s direction. Her failure to do so was negligence. On this state of facts it was proper to grant summary judgment against her and her husband and to sever the action against the defendant taxi operator and the defendant taxi owner. Whether these latter two defendants may also be held in negligence is not at issue here. The plaintiffs should not be delayed in their judgment against defendants Zraick. Where the prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable, summary judgment should be given (Gerard v. Inglese, 11 A D 2d 381 [2d Dept.]). This is such a case. The recent case (Scott v. New York City Tr. Auth., 10 A D 2d 992 [2d Dept.]), in which summary judgment was denied, is distinguishable. There the facts were much more favorable to the defendants. The defendant operator there went through two stop signs into *773the intersection; but he did not see them, claiming as to one sign that it was obscured by parked ears and overhanging tree branches. Here, however, there is no question that the automobile operator, defendant Lorraine Zraick, drove through a stop sign which she saw.

OPINION OF THE COURT Per Curiam. Respondent Nancy Burton was admitted to the practice of law in the State of New York by the First Judicial Department on September 26, 1977. At all times relevant to this proceeding, respondent maintained an office for the practice of law in the State of Connecticut, where she was admitted to practice in 1985. Respondent does not practice law in New York. In this reciprocal discipline proceeding, the Departmental Disciplinary Committee seeks an order disbarring respondent pursuant to 22 NYCRR 603.3, based on an order of disbarment issued by Honorable William Mottolese, Superior Court of Connecticut, Judicial District of Fairfield, at Bridgeport, on November 2, 2001. The Connecticut disciplinary proceeding arose out of respondent’s conduct in litigation proceedings before Judge Mottolese. The proceeding itself was commenced in an unorthodox manner in that ordinarily an attorney’s misconduct is referred to a local grievance committee for investigation. In this case, however, Judge Mottolese initiated the disciplinary proceeding sua sponte, over which he presided. The facts underlying the Connecticut proceedings are as follows. Respondent, a land use lawyer, was retained by Joseph and Lenore Sullivan in connection with their desire to challenge a determination by the Town of Monroe Zoning Board permitting the construction of a residential subdivision. The Sullivans also sought to recruit local community members to join as co-plaintiffs in an appeal of the Board’s determination. Following a meeting at which respondent spoke, approximately 20 community members agreed to join the Sullivans as coplaintiffs on the appeal by signing their names on a “sign-up sheet.” None of these coplaintiffs entered into a retainer agreement with respondent and only the Sullivans agreed to pay her fees and expenses. Respondent did file an appeal of the zoning board’s determination and, purportedly on behalf of the Sullivans and the 20 coplaintiffs, she also filed a separate action seeking declaratory and injunctive relief to prevent further construction until certain permits were obtained. This separate action was dismissed by Judge Mottolese on June 30, 2000, based on the argument of the Town and the developer that the plaintiffs’ action was barred by the doctrine of exhaustion of administrative remedies. *48Shortly thereafter, the Sullivans advised respondent on multiple occasions by telephone, mail, fax and e-mail that they no longer wished to pursue litigation regarding the subdivision. These communications were explicit in their direction that respondent not file any further pleadings in the case and that her representation was being terminated. Notwithstanding these communications, on July 20, 2000, respondent moved for reargument of Judge Mottolese’s June 30th decision, which motion was denied on August 16, 2000. Respondent apparently filed additional pleadings in the subdivision action in violation of the Sullivans’ direction. In September 2000, Judge Mottolese held a hearing to decide whether the defendants in the subdivision action (the Town and developer) were entitled to sanctions against respondent. During the course of this hearing, it was brought to the court’s attention that several of the named coplaintiffs may not have authorized respondent to file the declaratory action. Thereafter, Judge Mottolese scheduled additional hearings and defined their scope as including the Sullivan’s alleged termination of respondent’s services. In addition, the court denied multiple motions by respondent to recuse himself on the ground of gender bias. On July 17, 2001, Judge Mottolese issued a decision finding that respondent had engaged in professional misconduct by instituting the action for declaratory and injunctive relief on behalf of 22 plaintiffs without their authority, and by violating numerous rules of professional conduct. Among the violations found were, inter alia, failing to advise her clients of their status as plaintiffs (Connecticut Rules of Professional Conduct [RPC] 1.4), failing to abide by her clients’ decision to withdraw (RPC 1.2 [a], [c]), unauthorized representation after her discharge (RPC 1.16 [a] [3]), misrepresentations to the court (RPC 3.3 [a] [1]), conflicts of interest (RPC 1.7, 1.8) and other improper conduct directed at the court (RPC 8.2, 8.4). Subsequently, the court held a hearing on sanction and considered any aggravating and mitigating circumstances. In a November 2, 2001 order, Judge Mottolese determined that respondent should be disbarred due to her pattern of pervasive misconduct. The court relied on several factors, including her wilful behavior in ignoring her clients’ instructions, her previous disciplinary history in state and federal court resulting in nine instances of reprimand or monetary sanction and her refusal to recognize the wrongfulness of her behavior. *49Respondent appealed the disbarment order to the Connecticut Supreme Court. She argued that the lack of prior written notice deprived her of due process, that the court lacked the authorization to initiate disciplinary proceedings, that the court was biased against her and that the sanction of disbarment was an abuse of discretion. In a lengthy decision, the Supreme Court rejected all of respondent’s arguments and upheld the disbarment order (see Burton v Mottolese, 267 Conn 1, 835 A2d 998 [2003], cert denied 541 US 1073 [2004]). The court specifically found that the oral and written notices provided by the court were adequate to permit respondent to prepare a defense and that the claims of bias were unfounded. The Committee’s motion seeking reciprocal discipline is now before us. New York’s reciprocal discipline rule provides that upon a showing of the imposition of a disciplinary sanction in a foreign jurisdiction, the only defenses that may be raised by a respondent are: (1) a lack of notice constituting a deprivation of due process; (2) an infirmity of proof presented in the foreign jurisdiction; or (3) that the misconduct for which the attorney was disciplined in a foreign jurisdiction does not constitute professional misconduct in this state (22 NYCRR 603.3 [c]; Matter of Meaden, 263 AD2d 67 [1999]). Respondent has cross-moved to dismiss the petition or, alternatively, for a hearing. Respondent’s opposition papers establish none of these defenses. Instead, they are primarily focused on relitigating the Connecticut disciplinary proceedings. As to the first defense, respondent has not shown a lack of notice constituting a deprivation of due process (22 NYCRR 603.3 [c] [1]). As exhaustively detailed in the Connecticut proceedings, respondent received oral and written notice of the scope of the proceedings and of the potential rules violated. Further, she fully participated in the hearings held before Judge Mottolese. Although respondent claims that the court’s bias undermines its assertions regarding the adequacy of the notice, the Supreme Court of Connecticut, presumably unaffected by Judge Mottolese’s alleged bias, also found no due process violation. Thus, the defense of lack of notice is unavailable (22 NYCRR 603.3 [c] [1]). Nor has respondent made any showing that the factual findings in the Connecticut disciplinary proceedings suffered from an infirmity of proof (22 NYCRR 603.3 [c] [2]). As outlined in the decisions of Judge Mottolese and the Connecticut Supreme Court, the evidence demonstrating respondent’s continued pros*50ecution of the land use matter without her clients’ permission was clear and unequivocal, and not subject to any interpretation or doubt. Further, since much of the misconduct was committed by respondent in the presence of Judge Mottolese, there is no real dispute regarding the reliability or credibility of the allegations against her. Finally, since respondent does not raise the last defense, namely, that her Connecticut misconduct would not constitute misconduct in New York (22 NYCRR 603.3 [c] [3]), she has failed to establish any of the defenses available in a reciprocal discipline proceeding. Accordingly, the Committee’s petition for reciprocal discipline should be granted and respondent’s request for a hearing denied. With respect to sanction, it is generally accepted that the state where the respondent resided and practiced law at the time the offenses were committed has the greater interest in the public policy considerations surrounding the discipline of lawyers engaged in misconduct (see Matter of Paul, 308 AD2d 23 [2003]). To that end, this Court has often deferred to the sanction imposed by the jurisdiction where the misconduct occurred. In this case, moreover, the sanction of disbarment imposed by the Connecticut disciplinary authorities is entirely consistent with the sanction frequently imposed in New York for attorneys who have engaged in a pattern of deceit and dishonesty (see Matter of Lowell, 14 AD3d 41 [2004], appeal dismissed 4 NY3d 846 [2005], lv denied 5 NY3d 708 [2005]). Because this respondent’s deceit and dishonesty are well-documented in the record, disbarment is the appropriate sanction in this case. Accordingly, the Committee’s petition to impose reciprocal discipline on respondent pursuant to 22 NYCRR 603.3, based on the discipline ordered by the Supreme Court of Connecticut, should be granted, respondent disbarred and her cross motion to dismiss denied. Tom, J.P., Saxe, Nardelli, Gonzalez and Catterson, JJ., concur. Respondent’s name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective the date hereof. Cross motion for dismissal of proceeding or to set matter down for hearing denied.

. In an action by one joint venturer against the other (defendant Lundgren), upon an agreement for the purchase, development and resale of certain real property and an equal division of the profits, and against defendant bank as administrator of the estate-owner of such real property, to impress a trust upon the property, to compel defendant Lundgren to specifically perform the joint venture agreement, to direct the bank to convey the property to both joint venturers, to obtain a money judgment against defendant Lundgren, and for other relief, in which plaintiff has filed a lis pendens against the property, the parties cross appeal as follows from orders of the Supreme Court, Westchester County: (1) Plaintiff appeals from so much of an order, dated March 25, 1960, as granted defendant Lundgren’s motion to cancel the Us pendens upon his filing an undertaking for $35,000. (2) Defendant Lundgren appeals from so much of said order as imposed the condition that an undertaking for $35,000 be filed in order to cancel the lis pendens-, as denied the motion of the defendant bank to cancel the lis pendens on the ground that the action is not one in which a *774Us pendens is authorized under section 120 of the Civil Practice Act; and as denied the motion of the defendant bank to dismiss the complaint as to it under rule 106 of the Rules of Civil Practice on the ground that as to it the complaint fails to state a cause of action. (3) Defendant Lundgren appeals from an order, dated August 24, 1960, which denied his motion to cancel the Us pendens on substantially the same ground asserted by the bank. (4) Defendant Lundgren appeals from so much of an order, dated June 20, 1960, as denied his motion for summary judgment dismissing the complaint under rule 113 of the Rules of Civil Practice on the ground that the agreement alleged in the complaint is oral and that this action thereon is barred by the Statute of Frauds. Order of March 25, 1960, insofar as appealed from by plaintiff, affirmed, without costs. No opinion. Order of March 25, 1960, insofar as defendant Lundgren appeals from the portion which imposed the condition that an undertaking for $35,000 be filed; and insofar as said defendant appeals from the portion which denied the motion of the defendant bank to cancel the Us pendens, affirmed, without costs. No opinion. Appeal by defendant Lundgren from the portion of the order of March 25, 1960, which denied the motion of the defendant bank to dismiss the complaint as to it on the ground that the complaint is insufficient, dismissed, without costs. With respect to the denial of the bank’s motion in this respect, the defendant Lundgren is not a party aggrieved. Order of August 24, 1960, affirmed, without costs. No opinion. Order of June 20, 1960, insofar as defendant Lundgren appeals from the portion which denied his motion for summary judgment, affirmed, without costs. The issue as to whether plaintiff’s cause of action is barred by the Statute of Frauds may be better determined after the full development of the facts upon the trial. Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.

OPINION OF THE COURT Sullivan, J. Defendant Greater New York Mutual Insurance Company (GNY) issued a business owners policy, effective September 30, 2003, providing first-party property damage coverage to plaintiff for its seven-story condominium apartment building at 117 Beekman Street in Manhattan. The building contained a rooftop cooling tower whose pipes burst on or about January 12, 2004, allegedly the result of freezing temperatures. On or about May 6, 2004, plaintiff notified GNY of the incident and requested payment for the property damage to the cooling tower as a result of the burst pipes. Ultimately, on the basis of plaintiffs alleged breach of a post-loss policy condition requiring it to maintain and preserve the cooling tower for inspection, GNY disclaimed coverage for the loss, prompting this lawsuit. GNY’s policy, in relevant part, provides: “E. Loss Conditions . . . “3. Duties In The Event Of Loss Or Damage “a. You must see that the following are done in the event of loss or damage to Covered Property: . . . “(4) [I]f feasible, set the damaged property aside and in the best possible order for examination. . . . “(6) As often as may be reasonably required, permit us to inspect the property proving the loss or damage and examine your books and records” (emphasis added). On May 6, 2004, the day it received notice of the loss, GNY retained Prestige Adjustment, Inc. to adjust the claim. After visiting the site and realizing that it required the services of an expert, Prestige hired Levine Group, Inc., an HVAC expert, to inspect the cooling tower and its component parts to ascertain *53what had caused the pipes to burst. This inspection would, in turn, determine whether the loss was covered under the GNY policy. Levine visited the site and inspected the cooling tower on May 24 and June 1, 2004. On the latter date, a group assembled on the roof of the building to inspect the tower. Among those assembled were a representative of Levine; the executive vice-president of Akam Associates, the managing agent of the building; George Stiefel, Seaport’s attorney; Jennifer Granda, Akam’s on-site manager; a representative of defendant Mateo Service Corp., which had been hired by Akam on plaintiff’s behalf on May 7, 2004 to replace the cooling tower; a representative of the public adjuster retained by plaintiff; and several Mateo workers. After inspecting the tower for about an hour, Levine’s representative reported that, while he believed there were burst pipes within the cooling tower, he was unable to render a final report until he had the opportunity to conduct a more complete examination of the cooling system. This examination would determine whether the damage was the result of a covered cause of loss under the policy. According to the affirmation of plaintiffs attorney, all parties present at that meeting agreed that Mateo would remove the old tower and install a new one and would store the old tower in a safe place, “advis[ing] all parties as to where [it] would be located and mak[ing] arrangements for its further inspection” (emphasis added). This agreement was confirmed by Akam’s on-site manager. As the complaint alleges, however, Mateo destroyed the tower. GNY subsequently denied coverage, and plaintiff commenced this action. Prior to joinder of issue, GNY moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) on the basis of plaintiff’s breach of a policy condition in failing to preserve the damaged cooling tower for inspection. Supreme Court denied the motion, finding an issue of fact based on Mateo’s sworn assertion that under its contract with plaintiff it had no obligation to store the cooling tower once it was removed from the building. The motion court also cited the absence of any document, report or affidavit from Levine indicating the need for a further examination of the cooling tower. Since neither of these arguments is sufficient to defeat GNY’s motion, the order should be reversed and the motion to dismiss granted. At the outset, Mateo’s argument that it never agreed in its May 7, 2004 contract with plaintiff to store the cooling tower *54for further inspection raises no factual issue as between plaintiff and GNY to justify denial of the motion, since the parties present at the June 1, 2004 inspection agree—and Mateo does not dispute—that Mateo had undertaken to store the cooling tower. In any event, whether Mateo was obligated under its contract with plaintiff to store the tower is irrelevant. The point is that under plaintiffs policy with GNY, as well as the June 1, 2004 agreement among all those present at the meeting, plaintiff was required to store the tower for GNY’s expert to inspect, and the provisions—or lack thereof—in plaintiffs contract with Mateo with regard to storage do not relieve it of its obligation to GNY under the policy. The interpretation of the policy’s terms is a question of law for the court (Chimart Assoc. v Paul, 66 NY2d 570, 572-573 [1986]). As with the interpretation of any contract, the unambiguous terms of an insurance policy must be accorded their plain and ordinary meaning (Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 520 [1996]; 2619 Realty v Fidelity & Guar. Ins. Co., 303 AD2d 299, 300 [2003], lv denied 100 NY2d 508 [2003]; West 56th St. Assoc. v Greater N.Y. Mut. Ins. Co., 250 AD2d 109, 112 [1998]). The provisions in the GNY policy at issue could not be clearer. Taken together, the provisions relating to the insured’s “Duties In The Event Of Loss Or Damage” imposed upon plaintiff the obligations to set the damaged property aside for examination and to permit GNY to inspect the damaged property as often as reasonably required, in order to determine whether the loss was covered. GNY and plaintiff, as well as the others present at the June 1 inspection, agreed that Mateo would store the cooling tower and make it available to GNY’s expert for a further inspection. It is undisputed that because of the destruction of the replaced cooling tower, GNY never had the opportunity for a further inspection of the damage. Thus, plaintiff breached the policy condition in depriving GNY of this opportunity. Plaintiff argues that an issue of fact exists as to whether GNY required an additional inspection of the cooling tower. This argument, of course, ignores the agreement at the June 1 rooftop meeting for a further inspection. Such an agreement reflects a tacit acknowledgment that a further inspection was reasonably required. Unfortunately, that inspection never took place because the property was destroyed. In that regard, the argument, apparently accepted by Supreme Court, that GNY should have submitted an affidavit *55from Levine, its HVAC expert, attesting to the necessity of an additional inspection, is similarly misguided. It ignores plaintiffs admission that all the parties agreed on June 1, 2004 to permit GNY a final inspection of the cooling tower to complete its investigation. The failure to preserve the cooling tower is no mere technicality. The interpretation of an insurance contract, as noted, presents a question of law (Chimart, 66 NY2d at 572-573), and a court is not free to “make or vary the contract of insurance to accomplish its notions of abstract justice or moral obligation” (Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978]). The condition at issue here, i.e., the obligation to preserve the damaged cooling tower, is clear and unambiguous and stated in unmistakable language. Thus, it constitutes an express condition precedent (Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 691 [1995] ) that must be literally complied with before plaintiff may recover (Sulner v G.A. Ins. Co. of N.Y., 224 AD2d 205 [1996] , lv denied 88 NY2d 805 [1996]; see Charney v Commonwealth Land Tit. Ins. Co., 215 AD2d 152 [1995], lv denied 86 NY2d 709 [1995]). Since compliance with the requirement is a condition precedent to coverage, the insurer need not show prejudice (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]). That plaintiff was only required to preserve the tower “if feasible” does not warrant a different conclusion. Preservation was not only feasible here, it was expressly agreed to by plaintiff. Plaintiff offers as an excuse simply that Mateo is the party responsible for the tower’s destruction, conceding that the tower was destroyed before GNY’s expert was afforded a dispositive inspection, to which the parties had agreed. While that circumstance may give rise to a claim against Mateo, it does not excuse plaintiffs failure to comply with the policy’s loss condition, and thus precludes its recovery against GNY. Accordingly, the order of the Supreme Court, New York County (Walter B. Tolub, J.), entered June 20, 2005, which denied GNY’s motion to dismiss the complaint, should be reversed, on the law, without costs or disbursements, the motion granted and the complaint against GNY dismissed. The Clerk is directed to enter judgment in favor of GNY dismissing the complaint as against it. *56Mazzarelli, J.P., Marlow, Buckley and Gonzalez, JJ., concur. Order, Supreme Court, New York County, entered June 20, 2005, reversed, on the law, without costs or disbursements, the motion granted and the complaint against Greater New York Mutual Insurance Company dismissed. The Clerk is directed to enter judgment in favor of GNY dismissing the complaint as against it.

In three actions, consolidated and tried together, Action No. 1 being by the female plaintiff to recover damages for personal injuries and by her husband for medical expenses and loss of her services; Action No. 2 being by the female plaintiff to recover for damages to her automobile; and Action No. 3 being by defendant Shapiro against the female plaintiff to recover for damages to his automobile, the said defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Westchester County, entered February 24, 1960, on a jury verdict in Action No. 1 of $12,000 in favor of the female plaintiff and $6,000 in favor of her husband, after a jury trial. Judgment insofar as it is in favor of the female plaintiff in Action No. 1, and insofar as appealed from, affirmed, without costs. Judgment insofar as it is in favor of her husband in Action No. 1, reversed on the facts, said action severed as to him, and a new trial granted, with costs to abide the event, unless, within 20 days after the entry of the order hereon, he shall stipulate to reduce to $3,000 the amount of the verdict in his favor, in which event the judgment in his favor, as so reduced, is affirmed, without costs. In our opinion the verdict in favor of the plaintiff-husband, is excessive and should be reduced to the extent indicated. Beldock, Acting P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.

OPINION OF THE COURT Catterson, J. Joel Steinberg, the defendant-appellant, is a convicted child killer and abuser who fatally felled his six-year-old daughter with one blow of his hand, and then went out to dinner as she lay on a bathroom floor losing consciousness over the next 8 to 10 hours. He appeals now from a judgment that awarded damages against him for the pain and suffering he caused the little girl during her life, and in the tormented hours before her death. Steinberg who appears pro se in this action complains, inter alia, that because the first-grader’s death was preceded by “at most eight hours of pain and suffering” and “quick loss of consciousness” (emphasis supplied), the award of $15 million in compensatory and punitive damages is excessive. We disagree, and in simply so stating acknowledge that sometimes words fail even those who use the language to render judgments on a daily basis. We also disagree with the dissenting views that this award is not merited because it does not fall within the boundaries set by case law. Arguably, Donlon v City of New York (284 AD2d 13, 18 [2001]) speaks to an obligation to “determine what awards have been previously approved on appellate review and [to] decide whether the instant award falls within those boundaries.” However, we find no such obligation here. This case of an abusive father killing his child by knocking her down with a “staggering” blow to her head and then leaving her without medical attention while he enjoyed dinner and freebased cocaine is without precedential analog. Consequently, we find ourselves free to evaluate the award on the basis of “subjective opinions which are formulated without the availability, or guidance, of precise mathematical quantification.” (See Reed v City of New York, 304 AD2d 1, 7 [1st Dept 2003], lv denied 100 NY2d 503 [2003].) For the reasons set forth below, we affirm the award of $5 million for Lisa’s pain and suffering for eight hours; $5 million *60for Lisa’s pain and suffering as a battered child; and $5 million in punitive damages against Joel Steinberg. On November 4, 1987, Lisa Steinberg died in the hospital after efforts to revive her failed. She was 6V2 years old. She had just started first grade. She was 3 feet, 10 inches tall and weighed 43 pounds. Subsequently, medical evidence would show that a “ ‘tremendous’ force, equivalent to a fall from a tall flight of stairs or third-story window and consistent with a blow from a 6-foot tall, 180-pound man . . . had been applied to her head.” (People v Steinberg, 170 AD2d 50, 59 [1991], affd 79 NY2d 673 [1992].) Doctors at the hospital where she was brought when she finally stopped breathing that night later testified that her brain had been swelling for 6 to 12 hours before any medical treatment took place. (Id. at 68.) Meanwhile, bruises of “varying ages” evident on her body told a story of weeks, if not months, of prior physical abuse. Medical personnel observed brownish-green bruises on her arms and legs and inner thigh. There were multiple yellow to yellow-brown bruises on Lisa’s chest and on her right side and a black and blue bruise on her left buttock. There were bruises on her back over her left shoulder blade, and in the lumbosacral area. Further, medical personnel observed that Lisa’s hair was heavily matted and tangled; a two-inch chunk of hair had been either cut or pulled out near the back of her neck; her toenails were dirty, her feet had “six layers of dirt” on the soles and her body smelled of urine and vomit. (Id. at 57.) Steinberg, at the time a practicing attorney who was admitted to practice in this department, and who had taken Lisa as a newborn into the home he shared with his live-in girlfriend, Hedda Nussbaum, lied; he told the doctors at the hospital that Lisa had choked on vegetables that she was eating. Testimony at the underlying criminal trial established that Steinberg had “knocked . . . down” Lisa at around 6:00 p.m. on the evening of November 1. (Id. at 56.) He then carried her limp body to Nussbaum in the bathroom. While Steinberg dressed to go to dinner, Nussbaum placed Lisa on the bathroom floor and made unsuccessful attempts to revive her. When Stein-berg returned to the apartment at 10:00 p.m. that night, he and Nussbaum freebased cocaine for a couple of hours as Lisa still lay on the bathroom floor. Finally, at approximately 4:00 a.m., about 10 hours after Lisa was first placed on the bathroom floor, Steinberg picked her up and put her on a bed. Paramedics were summoned about 40 minutes after Lisa had stopped breathing at 6:40 a.m. *61Steinberg was indicted for murder in the second degree, manslaughter in the first degree and related offenses. Following a lengthy trial he was acquitted of murder but convicted of manslaughter in the first degree. After sentencing, on March 24, 1989, Steinberg moved unsuccessfully to set aside the judgment. In an order entered August 8, 1991, this Court affirmed the conviction. (People v Steinberg, 170 AD2d 50 [1991].) Meanwhile, in 1988, plaintiff Michele Launders, Lisa’s biological mother, who, following Lisa’s birth, had informally transferred custody of her to Steinberg, brought this action as administratrix of Lisa’s estate against Steinberg, Nussbaum, and various city agencies. Several of the causes of action involved claims against various employees and agencies of the City of New York alleging that they failed to take appropriate action to protect Lisa once presented with evidence that she was an abused child. In the fifth, sixth and seventh causes of action, Launders alleged that Steinberg and Nussbaum were liable for assault and battery upon taking custody of Lisa, for the prolonged and severe pain and suffering thereby endured by Lisa, and for negligence in their failure to summon medical care once it was apparent that Lisa’s life was in danger. In an order dated October 10,1989, Justice Nardelli (then sitting in Supreme Court) awarded summary judgment to Launders against Steinberg on those causes of action, reasoning that “the serious nature of Lisa’s injuries and Steinberg’s being the cause of such injuries cannot be contested.” On September 30, 1999, on the eve of trial, plaintiffs and the city defendants entered into a settlement in which the city defendants agreed to pay plaintiffs $985,000 in satisfaction of all claims naming them as defendants. Inasmuch as Launders expressly reserved her right to proceed against Steinberg on the remaining causes of action, in February 2001 she filed a note of issue and sought a damages inquest. Less than one week before the scheduled commencement of the damages inquest, Steinberg moved by order to show cause for leave to file an answer in which he raised the defenses of setoff, pursuant to General Obligations Law § 15-108, and apportionment, pursuant to CPLR article 16. In an order entered October 10, 2002, the court granted Steinberg’s motion only to the extent of allowing him to assert a claim for a setoff, since that amount was known to Launders and required no additional discovery or preparation. However, the court denied an amend*62ment for apportionment on the grounds that the plaintiff would be greatly prejudiced by the “additional, practical burden of preparing evidence to show the limited culpability of Hedda Nussbaum and the city.” At the inquest, held to assess the extent of damages to be awarded, a number of witnesses testified as to evidence of prior abuse as well as the pain and suffering Lisa would have endured as she was dying. Stacy Zeitz, a student teacher who observed Lisa on a daily basis during the months preceding her death, testified as to the bruises she had observed on Lisa’s body as well as Lisa’s unkempt appearance during the two months before her death. Michael Baden, M.D., a forensic pathologist, reviewed records from the hospital and the Office of the New York City Medical Examiner, as well as the transcripts of the testimony of two physicians who were the People’s witnesses at the criminal trial. He testified that, in his opinion, Lisa died as a result of specific injuries consisting of multiple blunt, considerable-force traumas on thé body with traumatic injury to the brain and bleeding around the brain. While mentioning that Lisa had “bruising of different ages [on] her body, some going back two weeks,” he added that the significant injuries that caused her death were impacts to the head which did not fracture the skull but caused the brain to bleed and swell and the lower part of the brain where the breathing centers are located to be compressed, thereby preventing Lisa from breathing. He stated that Lisa would not necessarily have immediately lost consciousness after receiving this type of injury, and in fact the hospital records, including Steinberg’s statements when she was admitted, indicate that the head injury occurred around dinner time, causing persistent vomiting until she lost consciousness 8 to 10 hours later. During that period Lisa likely experienced a severe headache, and at some point probably experienced great discomfort in being unable to catch her breath. Margaret McHugh, M.D., an expert in pediatrics and child abuse, testified that, after a review of the same records and photographs, none of Lisa’s bruises were consistent with injuries a child typically sustains in the normal course of play, and that her bruises, which likely resulted in pain, seemed to be in various stages of healing. Coupled with the indications that Lisa had poor hygiene, Dr. McHugh testified that it appeared that Lisa was an abused child. *63Launders also introduced into evidence the records of the Medical Examiner’s Office with autopsy results; 15 color photographs taken of Lisa upon her admission to St. Vincent’s Hospital; and the hospital records following her admission. Steinberg produced no evidence. The court awarded Launders $15 million stating: “For the pain and suffering during those 8-10 tormented hours before Lisa’s death, I award plaintiff $5,000,000 ($5 million). “For the general pain and suffering resulting from the injuries she endured as a battered child, I award plaintiff $5,000,000 ($5 million). “For punitive damages resulting from the heinous and outrageous crime committed against Lisa Stein-berg, I award plaintiff $5,000,000 ($5 million).” On appeal, Steinberg asserts that (a) the damages award is excessive; (b) his criminal conviction for causing Lisa’s death did not establish that he was responsible for any purported injuries sustained before the night of her death, and thus the inquest court had no authority to conduct a hearing on new theories of liability; and (c) he is entitled to a setoff. Steinberg’s assertions are entirely without merit. First, for Steinberg to dismiss the 8 to 10 hours preceding Lisa’s death as “at most eight hours of pain and suffering” or as he alternatively states, a “quick loss of consciousness” (emphasis supplied), demonstrates that he is as devoid of any empathy or human emotion now as he was almost 20 years ago when he stood trial for Lisa’s homicide. As any parent and, no doubt, most adults who have taken trips with young children can attest, the oft-heard question, “are we there yet?” is a clear illustration that, the more anticipated an event or destination so, seemingly slower the passage of time in a child’s mind. For Lisa, lying on a bathroom floor, her body aching from bruises of “varying ages,” her brain swelling from her father’s “staggering blow,” those 8 to 10 hours so cavalierly dismissed by Steinberg must have seemed like eternity as she waited and wondered when someone would come to comfort her and help make the pain go away. If, as the dissent observes, the only relevant inquiry is what amount is necessary to justly and fairly compensate the victim (see Tate v Colabello, 58 NY2d 84, 88 [1983]), then the inquiry must phrase the question in terms of just and fair compensation for the physical pain endured for “seeming eternity” as well as *64the mental anguish suffered by a child who could not comprehend her father’s brutality, or her equally brutalized mother’s helplessness towards. Steinberg argues that there is no award “even remotely” approaching this one and urges this Court to review decisions collected in Annotation, Excessiveness and Adequacy of Damages for Personal Injuries Resulting in Death of Minor (49 ALR4th 1076). He does not, however, cite one case where the situation is analogous to his own. To borrow his own words: There is no case that even remotely approaches this one on the facts, and so, there is no obligation on our part to make the awards comparable. Nor do we find it helpful, as the dissent suggests, to look at case law involving medical malpractice lawsuits or various tort suits brought against the City, and therefore essentially involving compensatory damages for injuries sustained through the negligence of strangers. Not a single case cited by Steinberg or the dissenters involves pain and suffering intentionally inflicted on a child by the very adult entrusted with the caring and nurturing, not to mention the loving of that child. Consequently, we find that $5 million is just and fair compensation for the “tormented” hours preceding Lisa’s death, and so affirm that part of the award. Second, we reject Steinberg’s contention that the award of summary judgment as to liability for prior assault and battery (abuse) on the basis of collateral estoppel was in error. Stein-berg argues that the verdict at the criminal trial did not reflect any necessary finding that he was responsible for assaulting Lisa on prior, earlier occasions. We disagree. It is well-settled law that collateral estoppel may be employed in a civil action to preclude relitigation of issues actually and necessarily determined in a prior criminal action. (S.T. Grand, Inc. v City of New York, 32 NY2d 300 [1973].) “A criminal conviction ... is conclusive proof of its underlying facts in a subsequent civil action and collaterally estops a party from relitigating the issue. All that is required to give collateral estoppel effect to a criminal conviction is that there be an identity of issues in the criminal and subsequent civil actions and that the defendant . . . had a full and fair opportunity to contest the issues raised in the criminal proceedings.” (Grayes v DiStasio, 166 AD2d 261, 262-263 [1st Dept 1990] [citations omitted]; see also Ryan v New York Tel. Co., 62 NY2d *65494, 500 [1984] [the issue must have been material to the first action and essential to the decision rendered therein].) Major portions of Steinberg’s trial focused on the abuse of Lisa in the weeks prior to her death. It was an issue that was raised in opening statements and summations, litigated fiercely and determined since the thrust of Steinberg’s defense was to point the finger of blame at his one-time girlfriend, Hedda Nussbaum. In order to do so, Steinberg attempted to show that the “evidence [was] consistent with Hedda Nussbaum being the person who caused the injuries to Lisa.” The court clearly acknowledged that the evidence of prior abuse was relevant to the charges against Steinberg. In charging the jury, the court stated: “The People contend they have proved the following circumstantial facts . . . that Joel Stein-berg previously abused Lisa Steinberg on several prior occasions . . . The defendant, on the other hand, contends that . . . the credible evidence is that Joel Steinberg always acted lovingly toward Lisa Steinberg.” In effect, the People’s theory of manslaughter in the first degree required that they show that Steinberg, with intent to cause serious physical injury to Lisa, injured her and then failed to obtain medical assistance for her, causing her death. Under the court’s charge, the People were required to prove both the act of commission and omission and the requisite mens rea— intent to cause serious physical injury—with respect to each. To support their case that Steinberg intended to cause serious injury and he, not Hedda Nussbaum, was responsible for Lisa’s death, the People offered evidence at trial that established that Steinberg had abused Lisa on previous occasions. (See People v Steinberg, 170 AD2d at 66.)1 The evidence included testimony by Hedda Nussbaum that in the month prior to Lisa’s death, Steinberg had grabbed Lisa by *66the arms, shaken her and thrown her to the ground; that he had instructed Nussbaum to dress Lisa in long sleeves until the bruises healed; and it included the testimony of a client of Stein-berg’s who witnessed Steinberg hit Lisa in the face. (Id.) The witness at the criminal trial, Charles Scannapieco (hereinafter referred to as CS), testified about an incident which occurred when Lisa fell asleep in his lap while Steinberg drove them to Albany the month before Lisa died. As the following excerpt from the trial transcript shows, the witness testified fully about this incident of abuse: “[cs]: Right after she fell asleep, she might have been sleeping I’d say ten or fifteen minutes and out of the clear blue sky, I mean, I was shocked but he just reached over . . . “[defense attorney]: Objection . . . Move to strike. . . . “court: Don’t tell us the workings of your mind. Just tell us what you saw and what you heard, okay? “[cs]: Mr. Steinberg took his hand and . . . rapped her on the side of her face. “Q: You’re indicating he took his right hand and he struck her with the back of his hand, is that right? “[cs]: Right, just like smash, right. “[defense attorney]: Could we strike ‘smash’? . . . “Q: Do you know what side of her face he struck? “[cs]: It would be the right side . . . the temple area, the forehead, just the side . . . “Q: Would you describe the degree of force with which Mr. Steinberg struck his daughter? “[cs]: It was pretty forceful. If I was to hit anyone here like he did, I’m sure a tear would come to her eye. *67“[defense attorney:: I ask that be stricken. That’s an opinion. “court: I’ll allow it. You may describe what you mean by ‘pretty forceful.’ “[cs]: That I’d bring tears to your eyes or anybody here if I hit you as hard.” Thus, we find the dissent unpersuasive in asserting that “the jury’s verdict did not reflect any necessary finding that [Stein-berg] was responsible for assaulting or abusing Lisa on earlier occasions.”2 On the contrary, Steinberg’s conviction means the jury found credible the testimony of witnesses who testified about Steinberg’s abuse of Lisa prior to the night of the final blow. Consequently, we find that collateral estoppel properly dictated Justice Nardelli’s decision awarding Launders partial summary judgment on liability. Steinberg was not denied a full and fair opportunity to address the issue that he abused Lisa. It is Steinberg’s burden to demonstrate the lack of such opportunity, and he fails to do so, particularly in the face of the fact that he was provided a lengthy trial during which he was represented by competent counsel, and that his CPL article 440 motion and appeal, the decision of which was 26 pages, were thoroughly considered. The issue of prior abuse was, as noted, thoroughly explored at trial and Steinberg’s defense attorneys made concerted but unsuccessful efforts to strike references to prior abuse in front of the jury as this excerpt from a sidebar conference during the People’s summation illustrates: “[defense attorney]: [the ADA] is mentioning instruments of, and he is commenting on instruments of abuse which it would seem to me have been taken out of the case by your indication . . . that you are not submitting the endangering counts to the jury. “court: I did not eliminate the endangering count regarding Lisa Steinberg on the merits. Clearly the evidence was sufficient to sustain it. The evidence was admitted at trial. *68“[defense attorney]: It isn’t clear to me why it should be commented on. “court: Because you yourself brought it up . . .by saying that the homicide was as a result of child abuse by stressing that Hedda Nussbaum was responsible for that child abuse and by bringing in the fact that the witness alleged Hedda Nussbaum had struck the child . . . “[defense attorney]: We did it on the credibility issue not substantive issue of abuse itself. “court: Maybe I didn’t hear your summation but I thought your argument was that Hedda Nussbaum killed the child.” Consequently, even if the actual charge of prior abuse was not in front of the jury as a charge standing on its own, the issue was most certainly “raised [and] litigated” in the criminal action. (See Dier v City of New York, 79 AD2d 596 [2d Dept 1980].) Therefore, we affirm the award for compensatory damages of $5 million for the abuse suffered by Lisa prior to her death. Steinberg further argues that the punitive damages assessed against him violate his constitutional right since “any award in excess of ten times actual damages presumptively violates his Eighth Amendment right.” Steinberg appears to have based his calculation on the erroneous assumption that we would reduce the compensatory damages awards, if not vacate them. In light of our foregoing affirmance of the compensatory damages, the punitive damages award of $5 million dollars remains one third of the total damages awarded. As the plaintiff asserts, punitive damages are appropriate in cases where the wrong complained of is “actuated by evil and reprehensible motives” (see Walker v Sheldon, 10 NY2d 401, 404 [1961]) and “ ‘[w]here the defendant’s wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime.’ ” (See Prozeralik v Capital Cities Communications, 82 NY2d 466, 479 [1993], quoting Prosser and Keeton, Torts § 2, at 9 [5th ed 1984]; Giblin v Murphy, 73 NY2d 769, 772 [1988] [high threshold of moral culpability required].) In urging this Court to affirm the punitive damages, the plaintiff appropriately describes Steinberg’s conduct as a heinous and inexcusable assault upon a defenseless child. The *69plaintiff states: “[T]he cavalier disregard of Lisa’s welfare evidenced by [Steinberg’s] failure to summon aid is exceeded only by the sadistic mechanism he employed to bring about the need for medical treatment in the first place.” The heinous nature of Steinberg’s intentional and deliberate abuse and manslaughter of a defenseless little girl earned him the cognomen “monster” almost 20 years ago. Now, the revisitation of the horror that was Lisa Steinberg’s life continues to elicit a palpable sense of outrage. We therefore affirm the award for punitive damages. We have considered the other issues raised by Steinberg on appeal, and have determined that they are also without merit. Steinberg’s attempt to obtain a reduction in the award by contending that there was no evidence of pecuniary loss because Lisa had no duty to support anyone is untenable. As Justice Nardelli expressly observed in his October 1989 order, the fifth through seventh causes of action were not premised on wrongful death but rather were comprised of tort claims alleging breaches of duties to Lisa herself. These “survivor actions” do not necessitate a demonstration of pecuniary loss by Launders, the legal representative of Lisa’s estate. (See EPTL 11-3.2 [b]; Adelman v Adelman, 191 Misc 2d 281, 287 [Sup Ct, Kings County 2002].) Finally, Steinberg’s assertion that the court erred in failing to determine the apportionment of fault and reduce the judgment against him by the pro rata share or the amount of the settlement, whichever was greater, is unavailing. A nonsettling tortfeasor may he permitted to amend his or her answer to assert the defense of the plaintiffs release of a cotortfeasor, thereby reducing his or her liability by the equitable share of liability of the settling tortfeasor under General Obligations Law § 15-108 (a), where the plaintiff will not be prejudiced by the amendment. (Whalen v Kawasaki Motors Corp., U.S.A., 242 AD2d 919 [4th Dept 1997], affd in relevant part 92 NY2d 288 [1998].) Here, the court providently used its discretion in affording Steinberg the benefit of asserting a setoff from the $985,000 already provided to Launders, but declining to permit him to assert the apportionment defense, pursuant to CPLR article 16. Launders had already been awarded partial summary judgment on liability against Steinberg and therefore justifiably relied on the inference that she was obligated only to put forward evidence of damages. Under those circumstances, coupled with the lengthy interim between the acts complained of and the inquest, *70Launders would be highly prejudiced if compelled to litigate the extent of the fault of the city defendants. In any event, in light of the abundant evidence of serious criminal and abhorrent conduct, Steinberg would be hard pressed to demonstrate that his equitable share of the total liability is 50% or less in order to invoke CPLR article 16. Accordingly, the judgment of the Supreme Court, New York County (Louis B. York, J.), entered June 10, 2004, which, after an inquest, awarded plaintiff Michele Launders, as administratrix of the estate of Baby Girl Launders, also know as Lisa, the sum of $10 million in compensatory damages (including $5 million for pain and suffering for eight hours, and $5 million for pain and suffering as a battered child) and $5 million in punitive damages, all with interest, should be affirmed, without costs. . The dissenting views that this is not a necessary determination by the jury that Steinberg abused Lisa on prior occasions ignore the following plain reading of this segment from Justice Sullivan’s opinion: “Review of the record reveals that the only reasonable conclusion was the one that even defendant’s own expert reached, i.e., that Lisa’s death was a homicide, resulting from child abuse.” (Id.) Lisa was abused on the night in question by one of two adults in her home. “The record also yields powerful evidence that it was defendant who was responsible for Lisa’s death.” (Id.) Despite Steinberg’s attempts to pin the blame on Hedda Nussbaum, the only other adult in the home, all the evidence direct and circumstantial, points to the fact that it was Steinberg who abused Lisa that night and so caused her death. “The evidence *66established that defendant had abused Lisa on previous occasions.” (Id.) The reason the evidence points to Steinberg abusing and thus killing Lisa on that night is because the evidence established that he, not Hedda Nussbaum, abused her on prior occasions. . The dissenting views appear to be that a defendant must have been both indicted and convicted of specific facts, which facts are the subject of estoppel in a subsequent action. No precedent stands for this proposition, nor do the dissenters cite to any relevant case law.

Andrias, J. (concurring in part and dissenting in part). While we are all in agreement that defendant-appellant perpetrated a heinous crime when he killed six-year-old Lisa, Justice McGuire is correct in finding, with regard to the inquest court’s award of damages for pain and suffering, to the extent alleged in the fifth and sixth causes of action, resulting from injuries Lisa endured as a battered child, that plaintiff-respondent Michele Launders in her capacity as administratrix of Lisa’s estate, has not met her burden of showing that appellant’s liability for uncharged prior acts of abuse was “necessarily determined” in the earlier criminal prosecution against him. The most serious crime for which appellant was charged was murder in the second degree, arising out of his striking of Lisa on the evening of November 1, 1987. The prosecution’s theory for the lesser charge of manslaughter in the first degree was that appellant “with intent to cause serious physical injury to Lisa, injured her and then failed to obtain medical assistance for her, causing her death” (People v Steinberg, 170 AD2d 50, 62-63 [1991], affd 79 NY2d 673 [1992]). His conviction for that crime “necessarily determined” for collateral estoppel purposes that, on the night in question, appellant violently struck the child several times in the head and essentially left her to die. However, the same cannot be said for the earlier instances of abuse and neglect allowed by the trial court as background material and to counter any potential defense that appellant’s act was an isolated incident or mere accident. Absent a conviction for such alleged abuse and neglect, appellant had no basis to ap*71peal the use of such evidence other than to question the propriety of its introduction at trial with regard to his manslaughter conviction. Indeed, as a criminal defendant in that earlier proceeding he was under no obligation to refute or contradict such testimony or, constitutionally, to mount any defense. Accordingly, the grant of summary judgment on the fifth and sixth causes of action insofar as it imposed liability on defendant for the alleged injuries endured by Lisa as a battered child and the award of damages for her conscious pain and suffering resulting from such injuries should be reversed and vacated and the matter remanded for trial of both the issues of liability and damages. Moreover, although the noted forensic pathologist Michael Baden testified at the inquest on damages that Lisa would not necessarily have lost consciousness immediately after appellant struck her in the head shortly after 6:00 p.m. on November 1, 1987 and was of the opinion that Lisa “lost consciousness 8 to 10 hours later,” the sole basis for such opinion and the inquest court’s finding that Lisa vomited throughout the night for a period of 8 to 10 hours before she became comatose between the hours of 4:00 and 6:00 a.m. were statements made by appellant and Hedda Nussbaum when Lisa was taken by ambulance to the pediatric emergency room at St. Vincent’s Hospital. Subsequently, however, at the criminal trial, which is the only basis for the collateral estoppel sought to be applied here, Ms. Nussbaum, appearing as a witness for the prosecution, testified that those and similar statements made to the police were a “cover story” (170 AD2d at 60). Ms. Nussbaum, the sole eyewitness to the events of that evening, also testified at the criminal trial that Lisa was unconscious when appellant carried her limp body into the bathroom moments after 6:00 p.m. and laid her on the floor. Thus, although Dr. Baden’s opinion was unrefuted at the inquest on damages, the underlying basis for his opinion is certainly questionable. Where it is contended on appeal that an award of money damages is excessive, CPLR. 5501 (c) requires this Court to determine whether such award “deviates materially from what would be reasonable compensation.” Ordinarily, when dealing with an excessive jury verdict, we direct a new trial unless the plaintiff stipulates to accept a lower amount. Where, however, as here, an excessive verdict is rendered by the court after a bench trial, such procedure is not required and this Court may *72render the judgment it finds warranted by the facts (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Thus, notwithstanding the inherent difficulty and subjectivity involved, once liability has been determined we, in our oversight role as gatekeepers, must dispassionately review the damages awarded and, in the case of an excessive verdict, reduce such award to an amount we deem to be reasonable. Although at this point nothing, let alone a sum of money, can bring Lisa back or relieve her suffering, we nevertheless must determine what would be just compensation for her injuries. Neither plaintiff nor the other members of this Court point to a truly comparable award in this or any other state to guide and enlighten us, and reliance upon case precedent alone is virtually impossible, given the different injuries and circumstances in each case (see Po Yee So v Wing Tat Realty, 259 AD2d 373, 374 [1999]). Nevertheless, although no one can measure another person’s pain and we can only imagine the extent of Lisa’s suffering, assuming that Lisa was conscious from shortly after 6:00 p.m. until she was brought to the hospital the next morning and taking into consideration the “tormented” hours before her death, the award of $5 million for past pain and suffering deviates materially from what would be reasonable compensation under these circumstances and should be reduced to $2 million, which amount should be subject to the setoff previously ordered by the inquest court of the amount settled for with the municipal defendants. Finally, given the foregoing award of compensatory damages, appellant’s total lack of remorse, and the heinous nature of his assault and battery and negligence, which are the sole remaining causes of action under consideration on this appeal, an additional award of $2 million in punitive damages is appropriate and the verdict should be reduced accordingly.

McGuire, J. (concurring in part and dissenting in part). I respectfully disagree with the majority in three respects. First, the October 10, 1989 order awarding summary judgment against appellant on the fifth, sixth and seventh causes of action on the basis of collateral estoppel was erroneous in part. That is, although appellant’s earlier criminal conviction for manslaughter in the first degree conclusively established that appellant had caused the death of Lisa Steinberg by acts of commission and omission on November 1 and 2, 1987, the jury’s verdict did not reflect any necessary finding that appellant was responsible for *73assaulting or abusing Lisa on earlier occasions. The prosecution offered evidence at appellant’s criminal trial that he had abused Lisa on earlier occasions and it well may be that the jury credited the testimony relating to those acts of abuse. But as is clear from the record on appellant’s appeal from the judgment of conviction (People v Steinberg, 170 AD2d 50 [1991], affd 79 NY2d 673 [1992])—in particular, the trial court’s charge to the jury—appellant was not charged with those prior acts of abuse and thus the jury could not possibly have found that he committed them. Respondent did not meet and could not have met her burden of showing that appellant’s liability for those acts of abuse was "necessarily determined” in the earlier action (see Ryan v New York Tel. Co., 62 NY2d 494, 500-501 [1984]; see also D’Arata v New York Cent. Mut Fire Ins. Co., 76 NY2d 659, 667 [1990] ["Generally, for a ques ion to have been actually litigated so as to satisfy the identity requirement, it must have been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding” (internal quotation marks and citations omitted)]). Accordingly, the award of summary judgment was erroneous to this extent, the award of $5 million for Lisa’s pain and suffering as a battered child should be vacated, and plaintiffs claims based on defendant’s conduct prior to November 1, 1987 should be remanded for further proceedings on the issue of liability. The majority appears to be of the view that because the jury necessarily determined that appellant had committed the acts of abuse on November 1 and 2, 1987 that caused Lisa’s death, the jury necessarily also found that appellant had committed prior acts of abuse. The latter finding, of course, does not follow from the former finding. The majority, moreover, does not dispute that the jury in appellant’s criminal trial was not asked to determine whether appellant committed the prior acts of abuse. Rather, the late Judge Rothwax instructed the jury that in order to find appellant guilty of the manslaughter charge it was required to find beyond a reasonable doubt that on or about November 2, 1987, by acts of commission and omission, appellant caused Lisa’s death. The jury was never instructed that it was required to find, before convicting appellant of the manslaughter charge, that appellant had committed the prior acts of abuse. For this basic reason, appellant should not have been collaterally estopped from contesting his liability for the prior acts of abuse (Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]). Indisputably—and respondent certainly never contended otherwise in her motion for summary judgment on collateral *74estoppel grounds—the criminal jury was not asked to determine whether appellant committed the prior acts of abuse and was not instructed that it could find appellant guilty of the manslaughter charge only if it found he had committed the prior acts of abuse. Accordingly, it is indisputable that in convicting appellant of the manslaughter charge the jury (or some jurors) could have entertained a reasonable doubt about whether he had committed the prior acts of abuse. Indeed, it also is indisputable that the jury (or some jurors) could have come to any one of a number of conclusions—or could have reached no conclusion at all—about whether appellant had committed the prior acts of abuse. Only if the word “necessarily” is redefined to mean “probably” can it be said that the criminal trial “necessarily determined” that appellant committed the prior acts of abuse. Another flaw in the majority’s approach is apparent when its application to future cases is considered. Whenever evidence of an uncharged crime is received in a criminal case the jury may or may not find it persuasive. But in the absence of special verdicts, which are “generally disfavored in criminal trials” (People v Ribowsky, 77 NY2d 284, 290 [1991]), there is no way of knowing with anything approaching reasonable certainty whether the jury credited that evidence or concluded (beyond a reasonable doubt or by a less exacting standard) that the defendant committed the uncharged act or acts. Presumably, the majority would not conclude that whenever the jury returns a guilty verdict the defendant is collaterally estopped from litigating the issue of whether he committed the uncharged act or acts. The majority, however, does not provide any guidance on the critical question of when the defendant will be collaterally estopped, except to the extent that its opinion suggests that the question turns on ad hoc evaluations by the courts in the subsequent civil proceedings of the strength of the uncharged-crimes evidence. To the extent such evaluations are meant to be decisive, the majority thus invites future litigation about the strength of the uncharged-crimes evidence. In other words, whether a party is estopped in a subsequent proceeding from relitigating an issue turns on that party’s ability to relitigate that very issue.1 Contrary to the majority’s writing, nothing in Justice Sullivan’s opinion for this Court affirming appellant’s conviction *75suggests that this Court believed—let alone gratuitously concluded—that the jury had decided that appellant had committed the uncharged acts of abuse in convicting appellant of manslaughter. To be sure, the Court stated that “[t]he evidence established that [appellant] had abused Lisa on previous occasions” (170 AD2d at 66). This appraisal of the strength of the evidence of prior acts of abuse, however, was not essential to the Court’s resolution of the appeal and, in any event, cannot ground the majority’s collateral estoppel holding. No matter how powerful that evidence was, the jury was not asked to determine whether appellant committed the prior acts of abuse. The majority is correct in stating that the issue of appellant’s responsibility for the prior acts of abuse “was most certainly ‘raised [and] litigated’ in the criminal action.” Solely on that basis, however, appellant could not properly be precluded in the civil proceedings from contesting his liability for those acts. Rather, appellant was free to contest his liability unless he had a full and fair opportunity to contest the issue of his liability for those acts in the criminal proceedings and that issue “necessarily [was] decided in the prior action” (Buechel v Bain, 97 NY2d at 303-304). I also disagree with the majority’s determination to uphold the award of $5 million for the pain and suffering Lisa endured in the 8 to 10 hours before she lost consciousness from the blow or blows inflicted by appellant. In reviewing this award of compensatory damages, it is important to bear in mind that the outrageousness of appellant’s conduct is not a relevant factor. As the United States Supreme Court has stated: “Although compensatory damages and punitive damages are typically awarded at the same time by the same decisionmaker, they serve distinct purposes. The former are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct. See Restatement (Second) of Torts § 903, pp. 453-454 (1979); Pacific Mut. Life Ins. Co. v Haslip, 499 U.S. 1, 54 (1991) (O’Connor, J., dissenting). The latter, *76which have been described as ‘quasi-criminal,’ id., at 19, operate as ‘private fines’ intended to punish the defendant and to deter future wrongdoing. A jury’s assessment of the extent of a plaintiffs injury is essentially a factual determination, whereas its imposition of punitive damages is an expression of its moral condemnation” (Cooper Industries, Inc. v Leatherman Tool Group, Inc., 532 US 424, 432 [2001].) Accordingly, in determining the amount of damages to award a plaintiff for past pain and suffering, the only relevant inquiry is what amount is necessary to “justly and fairly compensate” plaintiff (Tate v Colabello, 58 NY2d 84, 88 [1983]), irrespective of the nature of the causal factor in the infliction of the pain and suffering. As plaintiffs expert testified, Lisa unquestionably would have suffered “severe headache,” with pain of increasing severity, during the 8-to-10-hour period. Moreover, she would have been “very uncomfortable” as a result of vomiting and a feeling at some point of being unable to catch her breath. Nonetheless, neither plaintiff nor the majority has cited any precedent in which a comparable award has been upheld. While “personal injury awards, especially those for pain and suffering, are subjective opinions which are formulated without the availability, or guidance, of precise mathematical quantification” (Reed v City of New York, 304 AD2d 1, 7 [2003], lv denied 100 NY2d 503 [2003]), we are obligated “to determine what awards have been previously approved on appellate review and decide whether the instant award falls within those boundaries” (Donlon v City of New York, 284 AD2d 13, 18 [2001]). Although a multi-million dollar award undoubtedly is warranted, the award before us does not fall within the boundaries set by case law (see Ramirez v City of New York, 279 AD2d 563 [2001]; Regis v City of New York, 269 AD2d 515 [2000]; Siler v 146 Montague Assoc., 228 AD2d 33 [1997], appeal dismissed 90 NY2d 927 [1997]; Julmis v City of New York, 194 AD2d 522 [1993]; Gonzalez v New York City Hous. Auth., 161 AD2d 358 [1990], affd 77 NY2d 663 [1991]; DeLong v County of Erie, 89 AD2d 376 [1982], affd 60 NY2d 296 [1983]; cf. Ramlakhan v Mangru, 253 AD2d 806 [1998]).2 *77Finally, although I also would uphold a multi-million dollar punitive damages award, the erroneous collateral estoppel determination requires vacatur of the punitive damages award. When reviewing an award for punitive damages, a court must consider, among other things, the degree of reprehensibility of defendant’s conduct (BMW of North America, Inc. v Gore, 517 US 559, 575 [1996] [“the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct”]). The degree of reprehensibility turns on several factors, including whether the tortious conduct involved repeated actions or was an isolated incident (see State Farm Mut. Automobile Ins. Co. v Campbell, 538 US 408, 419 [2003]). Since the award of punitive damages is based to some unascertainable extent on the erroneous determination that defendant was collaterally estopped from contesting his liability for the prior acts of abuse, meaningful review of the award is not possible. Accordingly, I would vacate the award of punitive damages and remand for further proceedings on the issues of liability and damages. Mazzarelli, J.E, and Saxe, J., concur with Catterson, J.; Andrias and McGuire, JJ., each concur in part and dissent in part in separate opinions. Judgment, Supreme Court, New York County, entered June 10, 2004, affirmed, without costs. . Curiously, the majority asserts without explanation that “[t]he dissenting [sic] views appear to be that a defendant must have been both indicted and convicted of specific facts, which facts are the subject of estoppel in a *75subsequent action.” Why the majority believes that Justice Andrias and I appear to have embraced this proposition is puzzling. In any event, I need not and do not opine on the question of whether there are any circumstances under which a criminal action might necessarily determine the issue of whether a defendant committed certain acts that the defendant neither was charged with nor convicted of committing. . Contrary to the majority’s suggestion, in each of these cases compensatory damages were awarded for intentionally inflicted injuries. That the *77injuries causing Lisa’s death were inflicted by her father and not a stranger is without question relevant to the award of punitive damages (Cooper Industries, Inc., 532 US at 432 [a jury’s “imposition of punitive damages is an expression of its moral condemnation”]). The relevance of that outrage to the award of compensatory damages, however, is far less clear. Whatever its relevance, I cannot agree with the majority that it is sufficient to relieve this Court of its obligation to “determine what awards have been previously approved on appellate review and decide whether the instant award falls within those boundaries” (Donlon, 284 AD2d at 18). Moreover, the award appears to exceed the highest awards sustained by appellate courts in recent years for past pain and suffering (see e.g. Matter of New York Asbestos Litig., 28 AD3d 255 [2006] [$3 million]; Ruby v Budget Rent A Car Corp., 23 AD3d 257 [2005] [$2 million], lv denied 6 NY3d 712 [2006]; Cruz v Long Is. R.R. Co., 22 AD3d 451 [2005] [$3 million], lv denied 6 NY3d 703 [2006]; Hotaling v CSX Transp., 5 AD3d 964 [2004] [$4 million]; Weigl v Quincy Specialties Co., 1 AD3d 132 [2003] [$4 million (as reduced by trial court [see 190 Misc 2d 1 (2001)])]; Reed v City of New York, supra [$2.5 million]; Mundy v New York City Tr. Auth., 299 AD2d 243 [2002], lv denied 100 NY2d 509 [2003] [$3 million]).

In a derivative stockholder’s action, William Marco, as the administrator of the estate of a deceased stockholder of the Blue Ridge Corporation, and as the substituted appellant for plaintiff, Ida Marco, the former administratrix of said estate; and the two corporate defendants, Blue Ridge Corporation and Ridge Realization Corporation, appeal from an order of the Supreme Court, Kings County, dated April 21, 1960, granting the motion of defendants Sachs, Weinberg and Catchings: (a) to vacate a prior order, dated January 3, 1958, directing inter alia the entry of judgment herein dismissing the complaint, by reason of the willful failure of said Ida Marco, as plaintiff, to appear for examination before trial; (b) to vacate the judgment thereafter entered on January 7, 1958, pursuant to said prior order; and (c) to vacate all other proceedings in the action taken after January 4, 1956, on the ground that the court lacked jurisdiction by reason of the termination of the action and the dismissal of the complaint on January 4, 1956, pursuant to rule 302 of the Rules of Civil Practice and rule 17 of the Kings County Supreme Court Rules. Order of April 21, 1960, affirmed, without costs. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur. [25 Misc 2d 763.]

OPINION OF THE COURT Sullivan, J. On April 8, 1998, while bicycle riding with a friend, the 13-year-old petitioner was struck by what the children described as a “van,” which then drove off. Petitioner suffered a fractured jaw, inter alia, that required surgical intervention. On June 26, 1998, petitioner, a qualified person under the Motor Vehicle Accident Indemnification Corporation (MVAIC) Act (see Insurance Law § 5202 [b]), acting through her mother, served respondent corporation with a notice of claim in satisfaction of Insurance Law § 5208 (a) (2) (A). On March 26, 2001, petitioner, by her mother and natural guardian, commenced a personal injury action in Supreme Court, Bronx County, against Diego Cuadros, to whom the license plate number of the “hit and run” vehicle (as reported to petitioner’s mother) had been registered, the “John Doe” operator of the vehicle, and MVAIC. Petitioner never sought judicial permission to sue MVAIC, as required by Insurance Law § 5218, and the corporation did not appear in the action. Upon Cuadros’s showing that the vehicle bearing license plate numberMB, the number of a plate he had once owned, was a car, not a van, and that the plates had been surrendered and *80destroyed six months before the accident, petitioner, by her attorney, ultimately entered into a stipulation discontinuing the action with prejudice against Cuadros on February 21, 2003. By that time, petitioner had attained majority. Thereafter, on or about August 18, 2004, arguing, inter alia, that the identity of the van’s owner and driver had not been ascertained, petitioner sought leave to commence an action against MVAIC.1 This application was supported by affidavits from petitioner’s mother and the friend with whom she was bicycle riding at the time of the accident, and by her attorney’s affirmation, which detailed the unsuccessful efforts he had made to ascertain the identity of the driver of the van. His DMV search determined that the license plate number “F251MB” had been registered to a sedan, rather than a van, owned by Cuadros, and that Cuadros had furnished documentation that the plates had been surrendered to the DMV at least six months before the accident. Petitioner also submitted an affidavit from Cuadros, who confirmed that he was not involved in the accident. MVAIC opposed the petition on the ground of untimeliness, asserting that Insurance Law § 5218 (c) requires such an application to be made within three months after a judicial determination that the identity of the owner or operator of the motor vehicle involved in the accident has not been established,2 and since the petition was filed more than two years after petitioner was aware that the owner and operator could not be identified, her application should be barred. Supreme Court denied the pe*81tition, noting that petitioner had offered no explanation for the “over two year delay” in seeking leave after learning of Cuadros’s noninvolvement in the accident, and citing the absence of a judgment for purposes of Insurance Law § 5218 (c) in terminating the action against Cuadros. Petitioner moved to renew and reargue, urging that although reply papers to the original motion had been served and she had sought an adjournment of the original motion, she had not been advised of the disposition of the application for an adjournment. Attaching a copy of those reply papers from the original motion and the stipulation discontinuing the prior action against Cuadros, which had not been so-ordered by the court, petitioner stated that no judgment had been entered in the action against Cuadros and thus Insurance Law § 5218 (c) was inapplicable; the petition, brought within three years of her having attained majority, should thus be considered timely. MVAIC opposed the motion, arguing, inter alia, that the petition was untimely in view of the date of the filed stipulation of discontinuance. The court granted reargument but adhered to its prior determination. We disagree with that disposition. Petitioner’s application for leave to sue MVAIC, brought within three years of her reaching majority and only after she had made all reasonable efforts to ascertain the identity of the owner and operator of the offending vehicle, was timely and properly made and should have been granted. The stipulation of discontinuance, which never received judicial approval by being “so-ordered,” does not constitute a judgment so as to trigger the three-month extension provided by Insurance Law § 5218 (c) for seeking leave to sue MVAIC. In any event, the three-month extension provided in section 5218 (c) is not a limitations period; rather, it is a savings clause intended to provide qualified persons, who were unsuccessful in litigation in establishing that the putative owner or operator of the hit and run vehicle was actually involved in the accident, additional time to sue MVAIC in the event the applicable statute of limitations, i.e., three years for personal injury actions (CPLR 214), has run in the interim. Nowhere in the MVAIC Act is there a general limitations period for seeking leave to sue MVAIC. The courts have held that an application to sue MVAIC is timely if made within the applicable statute of limitations (see generally Matter of Hickman [Motor Veh. Acc. Indem. Corp.], 75 NY2d 975 [1990] [application by decedent’s estate to commence an action against MVAIC timely made within the two-year *82wrongful death limitations period]; Matter of Velez v Motor Veh. Acc. Indem. Corp., 56 AD2d 764 [1977] [petition for leave to sue MVAIC for personal injury timely if brought within the applicable three-year limitations period]). Here, petitioner attained majority on July 28, 2002. She brought the instant petition for leave to sue on August 18, 2004, well within the applicable three-year statute of limitations for a personal injury action (CPLR 214), which had been tolled during her infancy (CPLR 208). Petitioner, as noted, had satisfied the initial notice of claim requirement by filing the same within 90 days of the accident (see Insurance Law § 5208 [a] [2] [A]). It would make no sense to construe Insurance Law § 5218 (c)’s three-month extension period as a strict requirement, as MVAIC argues, so as to bar a lawsuit by the qualified person who was unsuccessful in obtaining a judgment in a personal injury action solely because of the inability to establish the identity of the owner or operator of the offending vehicle, while allowing the full extent of the limitations period to the qualified person who never even brought such an action because, despite exhausting all reasonable efforts, he or she was unable to ascertain the identity of even a putative owner or operator. We recognize that in at least two cases the Second Department has interpreted the three-month provision of section 5218 (c) as a strict limitations period that supplants the applicable statute of limitations (Matter of Gittens v Motor Veh. Acc. Indem. Corp., 7 AD3d 528 [2004]; Matter of Kearse v Motor Veh. Acc. Indem. Corp., 28 AD2d 703 [1967]). For the reasons stated, we decline to accord the three-month provision a similar interpretation. Finally, we note that petitioner was not obliged to enter judgment in her action against Cuadros. Section 5218 does not require, as a prerequisite to securing leave to sue MVAIC, that a judgment be entered in favor of a would-be owner or operator solely on a ground set forth in subdivision (c) as long as the qualified person has made “all reasonable efforts ... to ascertain the identity of the motor vehicle and of the owner and operator” (§ 5218 [b] [5]). The action against Cuadros was terminated by a stipulation of discontinuance with prejudice solely, as Cuadros demonstrated, by virtue of his noninvolvement in the April 8, 1998 accident. Nor is there any merit to MVAIC’s claim of laches, an equitable doctrine that requires a showing of prejudice due to delay (see Matter of Linker, 23 AD3d 186, 189 [2005]). None has been shown. *83While Insurance Law § 5218 (b) provides that the court, after a hearing, may permit an action against MVAIC upon satisfaction of certain enumerated conditions (see subd [b] [l]-[6]), those conditions have clearly been met and MVAIC does not raise any issue in that regard except to argue, as noted, that there has been no judicial determination that Cuadros was not involved in the accident. Petitioner has shown that she cannot ascertain the identity of the owner or operator of the offending vehicle. Thus, there is no need for a hearing. Accordingly, the order of the Supreme Court, Bronx County (Patricia Anne Williams, J.), entered September 15, 2005, which, upon a grant of reargument of an earlier order denying the petition for leave to commence an action against MVAIC, adhered to the original determination, should be reversed, on the law, without costs or disbursements, and the petition granted. The appeal from the earlier order, same court and Justice, entered December 8, 2004, should be dismissed, without costs or disbursements, as superseded by the appeal from the order entered September 15, 2005. Mazzarelli, J.P., Friedman, Williams and Gonzalez, JJ., concur. Order, Supreme Court, Bronx County, entered September 15, 2005, reversed, on the law, without costs or disbursements, and the petition for leave to commence an action against respondent granted. Appeal from order, same court, entered December 8, 2004, dismissed, without costs or disbursements, as superseded by the appeal from the order entered September 15, 2005. . While the caption of the proceeding specified that the application was for leave to sue MVAIC pursuant to section 5208 of the Insurance Law, the statute applicable to such a proceeding is section 5218. . Insurance Law § 5218 (c) provides: “In any action in which the plaintiff is a qualified person, for the death of, or bodily injury to, any person arising out of the ownership, maintenance or use of a motor vehicle in this state and judgment is rendered for the defendant on the sole ground that the death or personal injury was occasioned by a motor vehicle: (i) the identity of which, and [ ] the owner and operator of which, has not been established, or (ii) which was in the possession of some person other than the owner or his agent without the consent of the owner and the identity of the operator has not been established, that ground shall be stated in the judgment. The plaintiff, upon complying with paragraph one of subsection (a) of section five thousand two hundred eight of this article, may within three months from the date of the entry of the judgment make application to bring an action upon the cause against the corporation in the manner provided in this section.”

OPINION OF THE COURT Goldstein, J. At issue here is whether the law allows a cause of action for *85damages allegedly sustained by the infant plaintiff as a result of an accident which occurred when she was in útero and not viable outside the womb. We hold that the law allows such a cause of action, since the accident occurred after the infant plaintiff s conception and the infant plaintiff was thereafter born alive. On January 20, 1999, the infant plaintiff’s mother, the plaintiff Esther Portalatin-Leighton, a school teacher who was four months pregnant at the time, allegedly fell as a result of a defective toilet seat. Five minutes after her fall, she felt cramping in her lower abdomen and was taken to Methodist Hospital where she was treated and released. Thereafter, on April 4, 1999, the infant plaintiff was born three months prematurely. The plaintiffs filed a notice of claim on April 7,1999. However, the instant action to recover damages, inter alia, for personal injuries, was not commenced until July 23, 2004. By notice of motion dated April 11, 2005, the defendants moved to dismiss the complaint on the grounds that the mother’s causes of action were time-barred and the infant plaintiff failed to state a cause of action. The court dismissed the mother’s causes of action as time-barred by the one-year-and-90-day statute of limitations set forth in General Municipal Law § 50-i. That determination is not challenged on appeal and therefore, is not before this Court. With respect to the infant plaintiff, the defendants claimed she had no cause of action on the ground that “at the time of the alleged breach of duty [she] was a non-viable fetus,” and therefore, the defendants did not owe her a duty of care. The plaintiffs in opposition asserted that the defendants were attempting “to add in a new requirement to negligence actions.” The Supreme Court, in the order appealed from, agreed with the defendants that “[i]n order for the infant plaintiff to have a cognizable cause of action it must be a viable fetus at the time of the injury and must be later born alive.” Since the infant plaintiff was only a 14-week fetus at the time of the accident who would not have been viable outside the womb had she been born at that juncture, the Supreme Court found that she had no cause of action. We reverse the order insofar as appealed from. In Drobner v Peters (232 NY 220, 224 [1921]), the Court of Appeals dismissed an action brought by an infant plaintiff to recover damages allegedly sustained as a result of an accident which occurred 11 days before his birth on the ground that the defendant owed no duty to an unborn child apart from the duty *86to avoid injuring his mother. That determination was overruled by the Court of Appeals in Woods v Lancet (303 NY 349 [1951]). The issue in Woods v Lancet (supra at 356-357) was whether an infant plaintiff could recover damages for injuries allegedly sustained in his mother’s womb during the ninth month of pregnancy. The Court of Appeals reversed an order dismissing the infant plaintiff’s complaint and overruled its decision in Drobner v Peters (supra). In so doing, the Court of Appeals noted that Drobner v Peters (supra) was based upon three principles: (1) lack of precedent in favor of sustaining a cause of action brought by an infant plaintiff for injuries sustained in útero, (2) difficulties in proving causation, and (3) the “purely theoretical” objection “that a foetus in útero has no existence of its own separate from that of its mother, that is, that it is not a being in esse” (Woods v Lancet, supra at 356 [internal quotation marks omitted]). In answer to these concerns, the Court of Appeals found (1) negligence is a question of common law which may be revised by the courts, (2) difficulties in proving causation should not destroy a legal right, and (3) the case could be decided without dealing with the larger question of whether a fetus has an existence of its own separate from its mother. Apparently to avoid the larger question of whether the fetus was “a being in esse” (id.), the Court limited the applicability of its ruling “to prepartum injuries to . . . viable children . . . capable of being delivered and of remaining alive, separate from its mother” (id. at 357). Thereafter, the Appellate Division, Third Department, in Kelly v Gregory (282 App Div 542 [1953]), held that an infant plaintiff could recover damages for injuries allegedly sustained in an accident during the third month of the mother’s pregnancy, so long as he could prove causation. In that case, the Court noted that “no case imposed as a necessity . . . that actual miscarriage must coincide with the injury” (id. at 544). The Court further noted that lives in being for inheritance purposes included unborn children and “no distinction between viability or nonviability was attempted to be drawn in determining the point of vestiture of a legal right” (id. at 545). The principles enunciated in Kelly v Gregory (supra) were adopted by other jurisdictions (see e.g. Hornbuckle v Plantation Pipe Line Co., 212 Ga 504, 93 SE2d 727 [1956]: Daley v Meier, 33 Ill App 2d 218, 178 NE2d 691 [1961]; Bennett v Hymers, 101 NH 483, 147 A2d 108 [1958]; Smith v Brennan, 31 NJ 353, 157 *87A2d 497 [I960]; Sinkler v Kneale, 401 Pa 267, 164 A2d 93 [I960]) and by the Restatement of Torts (see Restatement [Second] of Torts § 869), which states that “[o]ne who tortiously causes harm to an unborn child is subject to liability to the child for the harm if the child is born alive.” This principle is “not limited to unborn children who are ‘viable’ at the time of the original injury, that is, capable of independent life . . . [i]f the tortious conduct and the legal causation of the harm can be satisfactorily established” (id. § 869, Comment d). Based upon the question of viability posed in Woods v Lancet (supra), questions arose in this state as to whether damages were recoverable for the wrongful death of a stillborn fetus that was “viable” and could have survived outside the womb at the time of the injury, had the injury not occurred (see Matter of Logan, 3 NY2d 800; Endresz v Friedberg, 24 NY2d 478 [1969]). In Endresz v Friedberg (supra at 483), the Court of Appeals determined that a wrongful death action cannot be maintained for the death of an unborn child: the child has to be born alive. In reaching that conclusion, the Court of Appeals stated that its decision in Woods v Lancet (supra) “simply brought the common law of this State into accord with the demand of natural justice which requires recognition of the legal right of every human being to begin life unimpaired by physical or mental defects resulting from the negligence of another” (Endresz v Friedberg, supra at 483). Thus, the crucial factor is whether the fetus injured in útero is thereafter born alive. The defendants, in asserting that a child born alive cannot recover for injuries sustained in útero unless the child is capable of viability outside the womb at the time of injury, cite cases relating to the constitutionality of limits on abortion (see Planned Parenthood of Southeastern Pa. v Casey, 505 US 833, 860 [1992]; Roe v Wade, 410 US 113, 160 [1973]). In 1973, the Supreme Court of the United States in Roe v Wade (supra) noted that “the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive” (id. at 161, citing Prosser, Torts § 55, at 336-338 [4th ed]). However, the Supreme Court acknowledged that the traditional rule “has been changed in almost every jurisdiction” (id. at 161). As noted in Prosser, Torts (§ 55, at 336), by 1971 the traditional rule had been discarded in “the most spectacular abrupt reversal of a well settled rule in the whole history of the law of torts” in favor of a rule which permitted a child, if born alive, to maintain an action to recover damages for personal injuries sustained in útero. *88This Court, when faced with a controversy over the constitutionality of legalization of abortion in this state, was able to reconcile legal abortion with the principle established in Kelly v Gregory (supra) that “the nonviable unborn child” injured in útero thereafter born alive may sue to recover damages (Byrn v New York City Health & Hosps. Corp., 38 AD2d 316, 329 [1972], affd 31 NY2d 194 [1972]), by holding that “legal personality is not synonymous with separate and vital existence within the womb [and] depending on the circumstances involved, public policy and other factors, legal personality will be accorded or withheld as these extrinsic considerations demand.” (Id.) The Court of Appeals, in affirming our determination, noted that while “unborn children have never been recognized as persons in the law in the whole sense,” nevertheless “[fjetuses, if they are born alive, have been entitled in modern times to recover in tort for injuries sustained through the host mother” (Byrn v New York City Health & Hosps. Corp., 31 NY2d at 200, citing Kelly v Gregory, supra). Abortion cases are generally distinguishable from the instant case, since fetuses which are aborted are not born alive (see generally Group Health Assn., Inc. v Blumenthal, 295 Md 104, 453 A2d 1198 [1983]). However, if the abortion fails and causes injury to the fetus who is later born alive, the child may have a cause of action sounding in medical malpractice to recover damages for the injuries sustained (see Sheppard-Mobley v King, 4 NY3d 627 [2005]). In Albala v City of New York (54 NY2d 269, 271 [1981]), relied upon by the Supreme Court, the Court of Appeals held that “no cause of action for preconception tort is cognizable” under the common law of this State. Accordingly, the incident allegedly giving rise to liability must occur after conception when there is, in fact, a fetus (see Enright v Eli Lilly & Co., 77 NY2d 377 [1991], cert denied 502 US 868 [1991]; Hymowitz v Eli Lilly & Co., 73 NY2d 487 [1989], cert denied 493 US 944 [1989]). In support of its contention that it owed no duty to the infant in útero, the defendant cites Widera v Ettco Wire & Cable Corp. (204 AD2d 306 [1994]). In that case, the infant plaintiff alleged that his father was exposed to toxic chemicals at his work site, and the infant was exposed to those chemicals when his mother washed the father’s contaminated clothes while he was in útero. This Court, in affirming the dismissal of the infant’s cause of action sounding in common-law negligence, held that extending the common-law duty to provide a safe place to work to the *89infant plaintiff would “expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs” (id. at 307). This case merely stated well-settled law that the duty to provide a safe place to work does not extend to members of the worker’s family or household or other third parties who were not physically present on the premises (see Matter of New York City Asbestos Litig., 5 NY3d 486 [2005]). This principle has no application to the issues in the instant case (see Mann v Andersen Prods., 246 AD2d 68 [1998]). Since the infant plaintiff was born alive and alleges that her injuries resulted from an accident which occurred while she was in útero, she has stated a cause of action. Accordingly, the order is reversed insofar as appealed from, on the law, and that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the infant plaintiffs cause of action is denied. Spolzino, J.P, Ritter and Skelos, JJ., concur. Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion pursuant to CPLR 3211 (a) (7) which was to dismiss the infant plaintiffs cause of action is denied.

*91OPINION OF THE COURT Per Curiam. Respondent Kenneth D. Law was admitted to the practice of law in the State of New York by the First Judicial Department on January 14, 1985. At all times relevant to this proceeding, he maintained an office for the practice of law within the First Judicial Department.* On or about March 1, 2005, respondent was served with a notice and statement of charges which alleged he violated Code of Professional Responsibility DR 1-102 (a) (7), DR 6-101 (a) (3) and DR 9-102 (e) (22 NYCRR 1200.3, 1200.30, 1200.46) by neglecting two client matters, writing checks on four occasions on his IOLA account to “cash,” and engaging in conduct which adversely reflected upon his fitness as a lawyer. In his answer, respondent essentially admitted neglecting the two matters but claimed extenuating circumstances. He also admitted to writing checks to “cash” but stated that it was an oversight, and he denied that his conduct violated DR 1-102 (a) (7). On April 29, 2005, the Referee held a hearing, at which, respondent withdrew his answer and admitted to all four counts of the charges. The Referee sustained the charges and proceeded to a sanction hearing. The Departmental Disciplinary Committee introduced a reprimand respondent had received in January 2004 involving respondent’s neglect of three unrelated client matters (DR 6-101 [a] [3]) and his failure to properly withdraw from two client matters (DR 2-110 [22 NYCRR 1200.15]). The Committee argued that a six-month suspension was appropriate based on the fact that respondent had been admonished for neglect of other cases only a year earlier, the seriousness of his neglect of the first matter and the other disciplinary violations, as mitigated to some degree by his cooperation with the Committee and admission to the charges. Respondent’s counsel recommended public censure. The Referee recommended a four-month suspension. In May 2006, a Hearing Panel recommended respondent receive a six-month suspension and that any future reinstatement be contingent upon respondent’s fulfillment of stipulated requirements including the institution of office reforms; that respondent obtain medical and/or psychological help for any condi*92tion which has impaired his ability to practice law; and that all outstanding disciplinary complaints would be fully addressed by respondent and resolved. Respondent stipulated to, among other things, waiving his right to personally appear before the Panel, and agreed not to object to a recommendation of a suspension of not less than four months and certain conditions regarding changing his office procedures before he is reinstated. The Disciplinary Committee now seeks an order: (1) confirming the report and recommendation of the Hearing Panel that confirmed in part the Referee’s report; (2) suspending respondent from the practice of law as this Court deems just and proper, but not less than four months; and (3) conditioning respondent’s subsequent reinstatement to the specific requirements as recommended by the Hearing Panel. Respondent, by his own admission, has committed a pattern of misconduct involving the neglect of two client matters and writing checks to “cash” from his escrow account on four occasions. He was previously reprimanded after formal charges were brought (and hearings held) for neglecting three other client matters and failing to withdraw from two matters. As contended by the Committee, implicit in its 2004 decision to limit the sanction to a reprimand was the expectation that respondent would mend his ways and cease being a problem for his clients and the profession. Instead, these disciplinary charges followed. Respondent asserts that the passage of almost a year since the Referee’s hearing has been a “de facto sanction” insofar as during that year respondent has declined considerable new representations because of the uncertainty of the ultimate sanction. In reply, the Committee asserts that the last year was not a “de facto sanction” as a portion of the delay in these proceedings was due to respondent’s own failure to stay in touch with his attorney, cooperate with him, and execute the stipulation agreed to. In the meantime, respondent has continued to practice law. Additionally, in spite of the time that has elapsed during these proceedings the Committee maintains that respondent has not fully grasped his responsibilities given that two more recent complaints remain open against respondent. In one matter, respondent has failed to even proffer a response to the Committee’s October 31, 2005 letter requesting an answer. This Court has imposed suspensions of six months and more as sanctions where an attorney has neglected legal matters and has a prior disciplinary history (see Matter of Berkman, 32 AD3d *9339 [2006]; Matter of Rosenkrantz, 305 AD2d 13 [2003]; Matter of Mannan, 233 AD2d 77 [1997]). Accordingly, the Committee’s motion for an order confirming the findings of fact and conclusions of law as found by the Hearing Panel should be granted and respondent suspended from the practice of law for four months. Additionally, any reinstatement of respondent is conditioned on his demonstrating to the satisfaction of the Court that he has instituted office reforms that will improve his communications with this clients; that he has obtained appropriate treatment for any conditions that may have impaired his ability to practice law; and that all outstanding disciplinary complaints against him have been resolved. Andrias, J.P, Saxe, Friedman, Gonzalez and Catterson, JJ., concur. Respondent suspended from the practice of law in the State of New York for a period of four months, effective March 8, 2007, and until the further order of this Court, as indicated. Respondent is delinquent in his registration for the 2005/2006 registration period.

OPINION OF THE COURT Spain, J. Petitioner commenced this proceeding in May 2006 pursuant to Mental Hygiene Law article 81 to be appointed guardian of the person and property of her father, respondent Daniel TT. (hereinafter respondent), the alleged incapacitated person. The petition alleges that respondent, then age 87, had been diagnosed with dementia of the Alzheimer’s type, is unable to care for himself of make decisions, and requires constant supervision and care. Respondent’s wife died in March 2006 and he has lived with petitioner’s sister—his only other child—respondent Diane UU., since October 2005. Petitioner alleges that respondent is living in unsanitary conditions, has been isolated by Diane and is residing with her as a result of coercion, and that she exerts inappropriate influence over his finances and is dissipating his substantial financial assets. In March 2006, shortly before his wife’s death, respondent (and his wife) executed a durable power of attorney, a health care proxy and an irrevocable trust, all conferring authority upon Diane. Respondent also apparently executed a living will and a last will and testament, neither of which appears in the record. The petition alleges that respondent executed these documents when he had a diminished capacity and was under the coercion and duress of Diane, and that she is violating her fiduciary duties as power of attorney. Respondent, represented by counsel assigned by the court, interposed an answer opposing the appointment of a guardian and denying any incapacity. The appointed court evaluator *96submitted a preliminary report reflecting that he had met with respondent who opposed the petition and expressed a preference to continue living with Diane and that she be permitted to continue to manage his financial and personal affairs. The court evaluator observed that respondent appeared oriented and was able to participate in these proceedings. However, he did not understand some aspects of his estate planning documents, whose preparation and execution were arranged by Diane through a law firm—other than the attorney with whom respondent had a long-term relationship, Gary Lombardi—under circumstances which raise questions regarding her undue influence. The court evaluator concluded that any recommendation regarding the petition would be premature due to the absence of medical, psychological or other evidence of the need for a guardianship. The report noted Lombardi’s opinion as respondent’s (and his wife’s) attorney and advisor for over 30 years, who submitted an affidavit opposing dismissal of the petition, averring that respondent was suffering from some form of dementia, that they had consistently expressed a desire to distribute their assets equally between their daughters and that the unequal distribution in the trust in Diane’s favor would only be the product of her overreaching. The court evaluator opined that respondent has been subject to overreaching and undue influence by Diane in decisions including his place of residence, selection of attorney for estate planning and execution of planning documents in March 2006. Petitioner moved for discovery related to respondent’s capacity and other relief including access to him and his temporary removal to an assisted living facility. The court evaluator cross-moved for an order pursuant to Mental Hygiene Law § 81.09 (d) authorizing inspection of respondent’s medical records and retention of experts to evaluate the extent of his diminished capacity. Respondent and Diane both opposed the foregoing motions and cross-moved for summary judgment or dismissal of the Mental Hygiene Law article 81 petition. After hearing oral argument, Supreme Court—relying upon respondent’s estate planning documents which address his medical and financial needs—summarily dismissed the petition, concluding that petitioner could not sustain her burden of proof. The court’s order contained other relief which is not in issue on this appeal. On petitioner’s appeal, we agree with her contention that Supreme Court erred in summarily dismissing her petition without discovery and a hearing. The discretionary determina*97tion whether to appoint a guardian under Mental Hygiene Law article 81 requires a two-pronged analysis: first, whether the appointment is necessary to provide for the personal needs of the person (including food, clothing, shelter, health care or safety) or management of property and financial affairs and, second, whether the person agrees to the appointment or is “incapacitated” (Mental Hygiene Law § 81.02 [a]; see Matter of Maher, 207 AD2d 133, 139-140 [1994], lv denied 86 NY2d 703 [1995]). On the necessity prong, the court is required to consider the report of the court evaluator (see Mental Hygiene Law § 81.02 [a] [2]; § 81.09 [c]) as well as the “sufficiency and reliability of available resources ... to provide for personal needs or property management without the appointment of a guardian” (Mental Hygiene Law § 81.02 [a] [2]). “Available resources” include care providers as well as “powers of attorney, health care proxies, [and] trusts” (Mental Hygiene Law § 81.03 [e]). Even if incapacity is established, a guardian is to be appointed only as a last resort and in a manner which is the least restrictive form of intervention (see Mental Hygiene Law § 81.02 [a] [2]; see also Matter of Joseph V, 307 AD2d 469, 470 [2003]). Such an appointment may be obviated where the alleged incapacitated persons have effectuated plans for the management of their affairs and are possessed of sufficient resources to protect their well-being (see Matter of Isadora R., 5 AD3d 494, 494 [2004]; Matter of Albert S., 286 AD2d 684, 684-685 [2001]; Matter of Maher, supra at 142; see e.g. Matter of S.K., 13 Misc 3d 1045, 1048 [2006]; Matter of A.C., 12 Misc 3d 1190[A], 2006 NY Slip Op 51508[U] [2006]). However, where, as here, the petition alleges that the planning documents were made while the person was incapacitated and are the product of duress, coercion or undue influence manifesting a breach of fiduciary duties, the court—upon a finding of incapacity—may appoint a guardian and “modify, amend, or revoke any previously executed appointment, power, or delegation” (Mental Hygiene Law § 81.29 [d]; see Matter of Mary J., 290 AD2d 847, 850 [2002]; see also Matter of Susan Jane G., 33 AD3d 700, 701 [2006] [upheld revocation of health care proxy and power of attorney signed while incapacitated]; Matter of Ardelia R., 28 AD3d 485, 487 [2006]; Matter of Rita R., 26 AD3d 502, 503 [2006] [power of attorney, will, health care proxy, trust agreements]; see e.g. Matter of Rochester Gen. Hosp. [Levin], 158 Misc 2d 522 [1993] [revoked power of attorney exe*98cuted by alleged incapacitated person because grantee unable or unwilling to fulfill duties]; cf. Matter of Isadora R., supra at 494). The preliminary report and affidavit of the court evaluator, and the affidavit of respondent’s long-term attorney, were more than adequate to create a question of fact to overcome the presumptive validity of respondent’s estate planning documents and, consequently, to raise a genuine factual question regarding the sufficiency and reliability of his available resources (see Mental Hygiene Law § 81.02 [a] [2]). Thus, under these circumstances, Supreme Court incorrectly concluded that this Mental Hygiene Law article 81 guardianship proceeding is not an appropriate proceeding in which to entertain challenges to the execution of respondent’s estate planning documents. With regard to the second prong, a determination of incapacity must be based, ultimately, on clear and convincing evidence that the person is likely to suffer harm because of an inability to provide for personal needs and/or property management, and that the person possesses an inadequate ability to understand and appreciate the consequences of such inability (see Mental Hygiene Law § 81.02 [b]; see also Matter of Maher, supra at 140). Here, the petition made sufficient allegations of the foregoing, asserting that respondent suffers from progressively worsening dementia, rendering him unable to attend to his daily personal, health, financial or other needs and, indeed, it was conceded that he requires constant assistance and care in his current environment (see Mental Hygiene Law § 81.08 [a] [4], [5]). These allegations were supported by affidavits of his siblings, the former long-term attorney and others, all of which raised a question of fact regarding his capacity. Moreover, the motion of the court evaluator to inspect respondent’s medical records and, if necessary, retain independent medical experts (to advise or examine) should have been granted (see Mental Hygiene Law § 81.09 [c] [6], [7]). By statute, provided the petition contains sufficient allegations (see Mental Hygiene Law § 81.08), the determination regarding the appointment of a guardian “shall be made only after a hearing” (Mental Hygiene Law § 81.11 [a]), at which any party may call or cross-examine witnesses, present evidence and be represented by counsel (see Matter of Eggleston [Mu-hammed], 303 AD2d 263, 266 [2003]). Thus, we find that it was error to summarily dismiss the petition (see Matter of Loconti, 11 AD3d 937, 938 [2004]). *99Mercure, J.E, Crew III, Mugglin and Rose, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted respondents’ motion for summary judgment and denied the court evaluator’s cross motion; motion denied, cross motion granted, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.

OPINION OF THE COURT Saxe, J. On this appeal by the People from an order granting suppression of physical evidence, we are asked to consider whether the police violated the Fourth Amendment’s prohibition against unreasonable searches and seizures by extracting a small bag secreted within defendant’s rectum. This took place at the police precinct, following defendant’s arrest for criminal sale of a controlled substance in the third degree, after the police observed a string protruding from his rectum in the course of conducting a strip search and visual body cavity inspection. At the suppression hearing the People offered the testimony of Police Lieutenant Stephen Burnes as to his observation of a drug sale by defendant, and his subsequent observations during a search of defendant at the precinct after his arrest. Defendant offered the additional testimony of Police Officer Frederick Spiegel, who conducted the search of defendant. Lieutenant Burnes stated that at approximately 8:30 p.m. on February 10, 2005, he was stationed on a rooftop at 128th Street and St. Nicholas Terrace in Manhattan. Using binoculars, Burnes observed Ross Meyers, whom he recognized from previous interactions, speaking with two men at the intersection, after which both men gave money to Meyers. Meyers then walked over to defendant, who was standing near a bodega on the corner. Meyers and defendant had a short conversation and then went into the bodega, with Meyers staying near the front door and defendant going to the back. Defendant then came over from the back of the bodega to where Meyers was standing and put something into Meyers’s hand. Meyers walked outside, went over to the two men on the sidewalk, and held his hand open so that Burnes could see that he was holding small white objects, which the two men took from Meyers’s hand. The two men went off in different directions. Meyers and defendant each stayed in the area for a few minutes more and then left *102separately. A field team picked up Meyers and defendant, and they were taken into police custody. Officer Spiegel brought defendant to a detention cell and conducted a strip search of him. Once defendant was completely disrobed, Spiegel asked him to squat by bending at the knees. As the defendant did so, Spiegel saw a string hanging from defendant’s rectum and called Burnes into the cell. Burnes entered the cell and, in a loud voice, instructed defendant to remove the string. When defendant would not comply, Burnes and Spiegel grabbed both of defendant’s arms and brought him to the ground so that he was in a bent-over position; Burnes then pulled the string out of the defendant’s rectum, recovering a plastic bag containing rocks of crack wrapped in plastic wrap. Burnes explained that the police strip-searched defendant in this manner because in the drug possession cases he had handled, “a good majority” of the people arrested “usually” place drugs between their buttocks. Burnes added that in at least one out of two drug arrests, the suspects had hidden drugs in such a manner. Officer Spiegel stated that a strip search was necessary because people who sold drugs in the four-block area where defendant was arrested generally carried very small pieces of crack wrapped in plastic and secreted down their pants or inside their jackets and pockets. The hearing court, finding that both Burnes and Spiegel were credible witnesses, termed the police conduct a body cavity search unjustified by exigent circumstances, citing Schmerber v California (384 US 757 [1966]) and People v More (97 NY2d 209 [2002]), and accordingly, suppressed the resulting evidence. Upon the facts as found by the hearing court, we disagree with its analysis, and hold that it was error to suppress the evidence seized from defendant’s person. The actions taken by the police were justified and reasonable. In Schmerber, the Supreme Court deemed it a Fourth Amendment violation to forcibly take a blood sample without a warrant following the defendant’s involvement in an automobile collision, in order to determine whether he was driving while intoxicated at the time of the accident. The Court said: “The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these *103fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.” (384 US at 769-770 [emphasis added].) The term “clear indication” was clarified, in United States v Montoya de Hernandez (473 US 531, 540 [1985]), as necessitating a “particularized suspicion” that the evidence “might be found within the body of the individual.” While the foregoing cases focused on police intrusions within the suspect’s body, the Supreme Court, in Bell v Wolfish (441 US 520 [1979]), considered the constitutionality of a blanket policy requiring visual body cavity searches of all pretrial detainees being housed in a correctional facility after seeing visitors. The Court held that the reasonableness of such visual body cavity searches must be determined by considering (1) the scope of the intrusion, (2) the manner in which the search is conducted, (3) the justification for initiating the search, and (4) the place in which the search is conducted (id. at 559). It concluded that the correctional facility’s legitimate security interest in preventing the smuggling in of weapons, money, drugs and other contraband outweighed the intrusion of a visual body cavity search when carried out reasonably, even absent probable cause, particularized suspicion or clear indication (id. at 560). A ruling applicable to incarcerated jail inmates is not automatically applicable to those newly arrested. The United States Supreme Court has not yet specifically considered the circumstances under which a strip search incident to arrest is justified (see Sarnicola v County of Westchester, 229 F Supp 2d 259, 269 [SD NY 2002], citing Illinois v Lafayette, 462 US 640 [1983]). In Weber v Dell (804d 796 [2d Cir 1986], cert denied sub nom. County of Monroe v Weber, 483 US 1020 [1987]), the court considered a challenge to a blanket policy of conducting a strip search of persons arrested for misdemeanors, holding such a search unlawful unless there is a “reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest” (id. at 802; see also Shain v Ellison, 273d 56 [2d Cir 2001], cert denied sub nom. Nassau County v Shain, 537 US 1083 [2002]). In this state, that rule has been applied by the Second Department to reject as illegal a strip search incident to arrest based upon the arresting officer’s observation of the individual’s removal of a small *104bag of marijuana from his boot (see People v Manley, 13 AD3d 653 [2004], lv denied 4 NY3d 833 [2005]). The discussion in Weber v Dell has not yet been applied to any policy to strip-search individuals arrested for felonies. The mere fact that the charged crime is a felony rather than a misdemeanor might not alone suffice as a reason to permit a blanket policy allowing strip searches, absent some particularized reasonable suspicion (see Sarnicola, 229 F Supp 2d at 270; Murcia v County of Orange, 226 F Supp 2d 489 [SD NY 2002]). However, the rule enunciated in Weber logically applies equally well to felony arrests, and bears repeating: a strip search of a person arrested for a felony is lawful where there is a “reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest” (804d at 802 [emphasis added]). It is, of course, important to consider People v More (97 NY2d 209 [2002], supra), which involved a strip search in some ways similar to the one under scrutiny on this appeal. In More, police officers entered an apartment with the tenant’s permission, having been informed by the tenant that individuals in the apartment were cutting cocaine for sale and that one of them was wanted on an arrest warrant for assaulting a police officer. One detective observed the defendant sitting on a couch with a woman on his lap; a crack pipe and a white rock-like substance the detective believed to be crack cocaine were on a nearby table. He placed the defendant and the woman under arrest, handcuffed them and patted them down. He then conducted a strip search of the defendant in a bedroom, over the defendant’s protests. During the search, the police observed an outer portion of a plastic bag protruding from the defendant’s rectum. They removed the bag, which contained several individually wrapped pieces of white rock-like substance later determined to contain cocaine (id. at 212). The Court of Appeals, observing that body cavity searches are degrading and at least as intrusive as the forced submission to a blood test considered in Schmerber, concluded that the search of the defendant was unreasonable under those circumstances, explaining that there was no apparent exigency to justify dispensing with the warrant requirement (97 NY2d at 214). Importantly for our discussion, however, the More court noted that “this case does not present the occasion for us to rule on the validity of body cavity searches conducted at the station house, detention centers or correctional facilities” (id. at 214 n). *105Although the More court did not specifically discuss the scope, manner, place and justification factors listed in Bell v Wolfish (441 US at 559), it is noteworthy that a weighing of those considerations also clearly supports the Court’s disapproval of the police conduct under the circumstances presented in More. The search was, as the Court observed, a degrading procedure, at least as intrusive as the blood test considered in Schmerber; it was unnecessarily conducted outside the station house; and the defendant had not been observed selling or even handling drugs, but it had merely been observed that a small rock of crack cocaine and a pipe were sitting on a nearby table. This Court’s decision in People v Mitchell (2 AD3d 145 [2003]) helps illustrate the important distinction between More and the present case, particularly with regard to the location of the search. In Mitchell, while the police had probable cause to arrest the defendant for a drug sale, the strip search they conducted on a public street was held to be unjustified: “a strip search, conducted in a public place, ... is not justified or reasonable absent the most compelling circumstances, that is, circumstances that pose potentially serious risks to the arresting officer or others in the vicinity” (id. at 148). In Mitchell, this Court applied the standard enunciated in Bell v Wolfish, under which the reasonableness of searches must be determined by considering (1) the scope of the intrusion, (2) the manner in which the search is conducted, (3) the justification for initiating the search, and (4) the place in which the search is conducted (see 441 US at 559). Applying those criteria to the particular facts and circumstances of this case, the visual body cavity search initially conducted here was justified and reasonable. While the scope of the intrusion is substantial in view of the degrading nature of the procedure, the manner and place of the search were reasonable, and, importantly, the visual body cavity search procedure was justified by the facts known to the police, including their experiences with the common practices of drug sellers in the neighborhood, and the officer’s observation of defendant selling drugs, packaged in small packets, during which the seller had to temporarily retreat to an unseen spot prior to completing the transaction in order to retrieve the goods he sold. As we observed in Mitchell (2 AD3d at 148), some courts have applied the “reasonable suspicion” standard enunciated in Weber v Dell to station house strip searches incident to arrest, requiring “reasonable suspicion that the arrestee is concealing *106a weapon or other contraband.” We need do no more here than note that even if that standard were determined to be applicable in this context, it was satisfied by the evidence here. Although an even stronger basis for such a search was established in People v Barnville (31 AD3d 271 [2006], lv dismissed 7 NY3d 809 [2006]), where the police observed the defendant actually retrieving an item for sale from within his pants, the predicate for a station house strip search was established here. Finally, the observation of the protruding string, during the course of the procedure, justified the immediate actions taken to physically retrieve the secreted narcotics. Accordingly, the orders of the Supreme Court, New York County (Bruce Allen, J.), entered (1) on or about August 4, 2005, which, after a Mapp hearing, granted defendant’s motion insofar as to suppress the physical evidence seized from him at the time of his arrest, and (2) on or about September 9, 2005, which dismissed the indictment, should be reversed, on the law, the motion denied and the indictment reinstated. Tom, J.E, Marlow, McGuire and Malone, JJ., concur. Orders, Supreme Court, New York County, entered on or about August 4, 2005, and September 9, 2005, reversed, on the law, defendant’s motion for suppression denied, and the indictment reinstated.

OPINION OF THE COURT Per Curiam. Respondent William E Hovell was admitted to the practice of law in the State of New York by the First Judicial Department on March 5, 1984, under the name William Paul Hovell. Respondent was admitted to practice law in Arizona on November 9, 1985. Respondent currently lives in Oklahoma and is not practicing law. The Departmental Disciplinary Committee now seeks an order pursuant to 22 NYCRR 603.3, disbarring respondent, predicated upon similar discipline issued by the Supreme Court of Arizona. In the alternative, the Committee seeks an order sanctioning respondent as this Court deems appropriate. In March of 2002, the Supreme Court of Arizona disbarred respondent, ordered him to make restitution to various individuals of over $77,000, and to reimburse the Client Protection Fund for any claims it had paid. The Arizona disbarment was based upon respondent’s misconduct in five matters. Matter One: Respondent settled a personal injury claim without authorization from client A; he failed to respond to that client’s request for information; and failed to respond to the Arizona state bar’s requests for information. Matter Two: Respondent settled an accident claim for client B and did not give the client her share of the settlement proceeds. Respondent did not communicate with client B after the settlement, he did not provide an accounting, and he did not respond to letters of inquiry from the Arizona state bar. Matter Three: Respondent did not honor an agreement with his former law partner to account for fees and costs on cases handled for him. He also withheld funds owed to this attorney. Matter Four: Respondent settled a case for client D for $75,000. He was given $27,000 to cover his costs. Respondent remitted $55,000, but failed to provide an accounting as to his costs. He also failed to respond to a request for information from the Arizona state bar regarding this matter. Matter Five: Respondent failed to pay for services performed in connection with expert testimony for matter four, and, again, failed to respond to state bar inquiries. In determining a proper sanction, the Arizona Disciplinary Commission considered six *109aggravating factors1 and two mitigating circumstances,2 ultimately determining that respondent should be disbarred from practice in that state, effective March 28, 2002. The Disciplinary Committee brought a petition for reciprocal discipline in July 2003. However, it withdrew that petition after being informed by respondent’s counsel that he had moved to vacate the Arizona disbarment. In December of 2005, respondent’s counsel notified the Disciplinary Committee that the Supreme Court of Arizona had denied his petition. The Disciplinary Committee has provided clear evidence that respondent committed the misconduct for which he was disbarred in Arizona. Moreover, respondent is precluded from raising any defenses to reciprocal discipline enumerated in 22 NYCRR 603.3 (c) which are: (1) a deprivation of due process due to a lack of notice or opportunity to be heard; (2) an infirmity of proof establishing the misconduct in the foreign jurisdiction; or (3) that the misconduct for which the attorney was disciplined in the foreign jurisdiction does not constitute misconduct in this jurisdiction. First, respondent participated at the beginning of the proceedings in Arizona, and then defaulted when requested to file supplemental papers. He also appeared at a portion of the sanction hearing, and he never argued that he was not given proper notice of the charges raised against him or an opportunity to contest them. He moved to vacate his disbarment, but he did not appeal the Arizona Supreme Court’s decision. Further, there was substantial evidence to support all of the charges which led to his Arizona disbarment. Finally, respondent’s actions in Arizona constitute violations of New York’s Rules of Professional Conduct (see Code of Professional Responsibility DR 1-102 [a] [4] [22 NYCRR 1200.3] [conduct involving dishonesty, fraud, deceit, or misrepresentation]; DR 6-101 [a] [3] [22 NYCRR 1200.30] [client neglect]; DR 1-102 [a] [5] [conduct prejudicial to the administration of justice]; DR 9-102 [c] [3], [4] [22 NYCRR 1200.46] [rules regarding proper accounting practices]). Accordingly, the Committee’s motion should be granted to the extent that it seeks an order disbarring respondent pursuant to *11022 NYCRR 603.3, and respondent is disbarred from the practice of law, effective immediately (Matter of Harris, 37AD3d 90 [2006]; Matter of Dranov, 14 AD3d 156 [2004]; Matter of Anschell, 11 AD3d 56 [2004]). Tom, J.E, Mazzarelli, Sullivan, Nardelli and Williams, JJ., concur. Respondent disbarred, and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective the date hereof. . (1) dishonest or selfish motive; (2) pattern of misconduct; (3) multiple offenses; (4) bad faith obstruction of the disciplinary proceedings; (5) substantial prior experience; and (6) indifference to making restitution. . (1) respondent had no prior disciplinary record; and (2) respondent had personal and emotional problems (he testified as to his bankruptcy, the suicide of a close friend and deaths of other relatives).

OPINION OF THE COURT Per Curiam. On or about June 23, 2004, the petitioner filed with the Court a notice pursuant to 22 NYCRR 691.3 seeking the imposition of reciprocal discipline upon the respondent based upon disciplinary action previously taken against him by the Supreme Court of South Carolina. By order of that court dated June 7, 2004 (Matter of Jones, 359 SC 156, 597 SE2d 800 [2004]), the respondent was suspended from the practice of law in South Carolina for a period of one year. The South Carolina proceeding was a consolidation of three matters involving failure to prosecute an appeal, failure to communicate with complainants, and failure to update or notify the South Carolina bar of his change of address and employment. A subpanel and a full panel of the South Carolina Commission on Lawyer Conduct (hereinafter the Commission on Lawyer Conduct) recommended that the respondent be disbarred. The formal charges against the respondent emanate from his failures to perfect a criminal appeal and to answer inquiries regarding the status of that appeal, ultimately resulting in the dismissal of that appeal, his receipt of a fee in a matter without performing the services for which he was retained, and his failure to cooperate with or respond to disciplinary authority. While labeling the respondent’s derelictions serious, the South Carolina Supreme Court disagreed with the recommendations of the subpanel and the full panel regarding disbarment and deemed a one-year suspension an appropriate sanction. *113After being served with the petitioner’s notice pursuant to 22 NYCRR 691.3 on or about June 22, 2004, the respondent filed his first verified statement, dated June 29, 2004, with the petitioner. In that statement, the respondent raised the defenses that there was an infirmity of proof underlying the South Carolina proceeding and that the imposition of reciprocal discipline would be unjust. However, he failed to communicate with the Court his intent to assert any of the enumerated defenses to the imposition of reciprocal discipline or to demand a hearing. Accordingly, this Court suspended the respondent for a period of one year based upon the record of the South Carolina proceeding. Neither the petitioner nor the respondent had any further communication with the Court with respect to this matter until March 4, 2005, after the petitioner’s receipt of the opinion and order suspending the respondent. The respondent informed Grievance Counsel that he still intended to demand a hearing and that he would resubmit his verified statement setting forth his defenses to the imposition of reciprocal discipline directly to the Court. In his second verified statement dated March 24, 2005, the respondent asserted the defenses that the South Carolina procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process and that even though he was served with formal charges and did not submit an answer, he was never given notice of hearings before the subpanel and full panel of the Commission on Lawyer Conduct and was thereby prejudiced by not having the opportunity to submit evidence pertaining to the underlying complaints. Accordingly, this Court recalled and vacated its prior opinion and order dated February 28, 2005 (15 AD3d 119 [2005]), held the petitioner’s motion in abeyance pending a hearing, and directed that a hearing be conducted before the Honorable George Friedman, as Special Referee, to hear and report “with respect to the findings of the South Carolina jurisdiction” and the respondent’s defenses to the imposition of discipline. Pursuant to that order, a hearing was conducted on September 30, 2005, at which the respondent appeared pro se. At the outset of the hearing, the respondent noted that he was abandoning his first verified statement and proceeding solely on the basis of the defense raised in his later verified statement, dated March 24, 2005, that he was not afforded notice of the hearings before the South Carolina subpanel and full panel of the Commission on Lawyer Conduct. *114The Special Referee found that the respondent had not received any notice of the hearing which was held on April 10, 2003, before the subpanel of the Commission on Lawyer Conduct. He concluded that such failure of notice constituted a deprivation of due process rights to which the respondent was entitled. The petitioner moves to disaffirm the report of the Special Referee, to reject the defenses to the imposition of reciprocal discipline propounded by the respondent, and to impose such reciprocal discipline upon the respondent as the Court deems appropriate. The respondent served Grievance Counsel with a two-page answer asking the Court to sustain the Special Referee’s findings and not impose any reciprocal discipline. As he did with his first verified statement in response to the petitioner’s notice pursuant to 22 NYCRR 691.3, the respondent failed to serve the Court with his answer to the petitioner’s motion. In essence, the Special Referee is questioning the sufficiency of the evidence before the South Carolina authorities. The petitioner maintains, however, that the subpanel’s finding that the respondent was properly served must be accepted as fact. The subpanel specifically found, on the evidence before it, that the respondent was properly served with both the notice of hearing and the earlier order of default. As a result, the respondent had ample notice to appear and to present evidence in mitigation which would be relevant to the issue of sanctions. According to the subpanel’s report, the respondent’s failure to appear before it was consistent with his earlier failure to file an answer to the formal charges and his failure to cooperate with the investigation. The Supreme Court of South Carolina confirmed the subpanel’s determination, as accepted by the full panel, but rejected its recommendation of disbarment. Under the totality of circumstances, the petitioner’s motion to disaffirm the Special Referee’s report is granted, the respondent’s defenses to the imposition of reciprocal discipline are rejected, and the respondent is suspended for a period of one year based upon the discipline imposed by the South Carolina authorities. Prudenti, P.J., Miller, Schmidt, Ritter and Florio, JJ., concur. Ordered that the petitioner’s motion to disaffirm the report of the Special Referee and to reject the respondent’s defenses to *115the imposition of reciprocal discipline is granted; and it is further, Ordered that the petitioner’s motion to impose reciprocal discipline upon the respondent is granted; and it is further, Ordered that pursuant to 22 NYCRR 691.3, the respondent, Lyndon B. Jones, is suspended from the practice of law for a period of one year, commencing March 15, 2007, and continuing until the further order of this Court, with leave to the respondent to apply for reinstatement no sooner than six months before the expiration of the one-year period upon furnishing satisfactory proof (a) that during the one-year period he refrained from practicing or attempting to practice law, (b) that he has fully complied with this order and with the terms and provisions of the written rules governing the conduct of disbarred, suspended, and resigned attorneys (22 NYCRR 691.10), (c) complied with the applicable continuing legal education requirements of 22 NYCRR 691.11 (c); and (d) that he has otherwise properly conducted himself; and it is further, Ordered that pursuant to Judiciary Law § 90, during the period of suspension and until the further order of this Court, the respondent, Lyndon B. Jones, shall desist and refrain from (1) practicing law in any form, either as principal, agent, clerk or employee of another, (2) appearing as an attorney or counselor-at-law before any court, judge, justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further, Ordered that if the respondent, Lyndon B. Jones, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10 (f).

OPINION OF THE COURT Per Curiam. Respondent Kevin John Flynn was admitted to the practice of law in the State of New York by the Second Judicial Department on February 24, 1988. At all times pertinent to this proceeding, respondent maintained an office for the practice of law within this judicial department. The Departmental Disciplinary Committee now seeks an order pursuant to 22 NYCRR 603.4 (d) confirming the findings of fact and conclusions of law, and due to the different sanction recommendations, disciplining respondent as this Court deems just and appropriate. Respondent formed a law partnership with another attorney but each worked on their own cases. The law firm primarily defended Chase Bank in small litigation matters (involving less than $25,000). The charges arose out of respondent’s representation of Chase in eight separate matters between 2000 and 2004. On May 25, 2005, a notice of 27 charges was served on respondent alleging a pattern of misconduct, including his neglect of six matters and inadequate preparation of a seventh matter in violation of Code of Professional Responsibility DR 6-101 (a) (3) (22 NYCRR 1200.30), misrepresentations to his client as to the status of a matter in violation of DR 1-102 (a) (4) (22 NYCRR 1200.3), failing to inform the client of the status of four other matters and settling them without his client’s knowledge or consent in violation of DR 1-102 (a) (4), intentionally prejudicing and damaging his client, JPMorgan/Chase Bank (Chase), with respect to all eight matters as a result of his neglect, misrepresentation and inadequate preparation which caused this client unknowingly to default in payment of a judgment, to be unprepared for trial, and to have pleadings stricken or judgments entered against it for failure to comply with *118disclosure obligations in violation of DR 7-101 (a) (3) (22 NYCRR 1200.32). Respondent was also charged with falsifying the accounting records of his law firm to disguise settlement drafts as draws to himself in an attempt to conceal his neglect in violation of DR 1-102 (a) (4). Respondent served his answer admitting most of the underlying factual allegations but denying the charges themselves. A Referee conducted hearings on September 13 and 20, 2005, at which respondent appeared pro se and testified on his own behalf. In a report dated October 25, 2005, the Referee sustained all of the charges except for the nine charges pertaining to DR 7-101 (a) (3) (conduct which intentionally prejudiced and damaged the client during the course of the professional relationship), and recommended respondent be suspended for three months. He concluded that although Chase was prejudiced and “to an undetermined extent there was damage” in the course of respondent’s representation, there was no evidence that respondent acted intentionally or with “ill will, which is implied by a claim of intentionally prejudicing a client.” He further stated that “respondent knew his conduct was wrong[] but his conduct in quietly spending his own money to protect his client from the consequences of his misconduct rebuts any notion that he intended that the client be prejudiced or harmed.” In recommending a three-month suspension, the Referee took into consideration several mitigating factors including respondent’s full cooperation with the disciplinary proceeding, his “candor, contrition and acknowledgment of personal failure,” and the absence of a prior disciplinary record. The Referee indicated that he would have recommended a censure if it were not for respondent’s failure to pay his biennial attorney registration dues since 2000. Furthermore, the Referee noted the lack of any explanation by respondent other than that he “procrastinated on a number of cases,” and emphasized that respondent paid more than $38,000 of his own money to settle matters and did so “to protect the client from his own misconduct.” A Hearing Panel affirmed the Referee’s findings of liability, but it determined the Referee’s recommended three-month suspension was “insufficient” and the Committee’s recommended 18-month suspension was “not called for.” Accordingly, the Panel recommended a seven-month suspension. The Panel agreed that respondent’s conduct was “inexcusable and serious” but noted the evidence in mitigation, that respondent used his own funds to resolve many of the legal matters, and that it *119appeared Chase did not suffer any significant financial loss as a result of respondent’s misconduct. With regard to the period of suspension, comparable neglect cases have resulted in a period of suspension ranging from six months to three years depending on whether there is a prior disciplinary history, the seriousness of the consequences from the neglect, the number of matters neglected, whether or not the attorney misled clients and/or the Committee, and whether the attorney cooperated with the Committee and was candid in the proceedings (Matter of Benick, 293 AD2d 176 [2002]). Here, respondent engaged in a pattern of misconduct over 3V2 years involving the neglect of eight client matters and concealed his neglect by failing to inform Chase about the status of nearly all of those matters (including that he had entered into settlements and pleadings were stricken or judgments entered against it), and by making an affirmative misrepresentation in one matter that the case was still active. Respondent also falsified his firm’s financial records to conceal his misconduct from his partner. However, respondent fully cooperated with the Committee, he admitted the relevant allegations of misconduct, he expressed sincere remorse for his nonvenal conduct, he has no prior discipline, he no longer is practicing law and does not plan to practice in New York in the future and, notably, he used $38,000 of his own money to resolve the problems he created. Accordingly, the petition should be granted to the extent of confirming the findings of fact and conclusions of law sustaining the 18 charges of professional misconduct and suspending respondent for a period of one year. Andrias, J.E, Saxe, Friedman, Gonzalez and Catterson, JJ., concur. Respondent suspended from the practice of law in the State of New York for a period of one year, effective March 8, 2007, and until further order of this Court.

*121OPINION OF THE COURT Per Curiam. Stuart H. Finkelstein has submitted an affidavit dated May 18, 2006, wherein he tenders his resignation as an attorney and counselor-at-law (see 22 NYCRR 691.9). Mr. Finkelstein was admitted to the bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on December 13, 1989. Mr. Finkelstein avers that his resignation is freely and voluntarily rendered, that he is not being subjected to coercion or duress, and that he is fully aware of the implications of its submission, including being barred from seeking reinstatement for at least seven years. Mr. Finkelstein is aware that he is the subject of an investigation by the Grievance Committee for the Second and Eleventh Judicial Districts into allegations that he, inter alia, submitted false and misleading answers and documents to the Grievance Committee that were altered in connection with two pending complaints of professional misconduct. Mr. Finkelstein’s resignation is submitted subject to any application which could be made by the Grievance Committee for the Second and Eleventh Judicial Districts to direct that he make restitution and reimburse the New York Lawyers’ Fund for Client Protection, pursuant to Judiciary Law § 90 (6-a). He acknowledges the continuing jurisdiction of the Court to make such an order and is aware that any order issued pursuant to that section could be entered as a civil judgment against him. Mr. Finkelstein specifically waives the opportunity afforded him by Judiciary Law § 90 (6-a) (f) to be heard in opposition thereto. The Grievance Committee urges acceptance of the proffered resignation. Inasmuch as Mr. Finkelstein’s resignation conforms with the requirements of 22 NYCRR 691.9, it is accepted, and effective immediately, Mr. Finkelstein is disbarred and his name is stricken from the roll of attorneys and counselors-at-law. Prudenti, P.J., Miller, Schmidt, Florio and Skelos, JJ., concur. Ordered that pursuant to Judiciary Law § 90, effective immediately, Stuart H. Finkelstein is disbarred, and his name is stricken from the roll of attorneys and counselors-at-law; and it is further, Ordered that Stuart H. Finkelstein shall promptly comply with this Court’s rules governing the conduct of disbarred, *122suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further, Ordered that pursuant to Judiciary Law § 90, effective immediately, Stuart H. Finkelstein is commanded to desist and refrain from (1) practicing law in any form, either as principal, agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further, Ordered that if the resignor, Stuart H. Finkelstein, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the resignor shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10 (f).

OPINION OF THE COURT Per Curiam. Respondent Gwenerva D. Cherry was admitted to the practice of law in the State of New York by the First Judicial Department on March 25, 1991. At all times relevant to these proceedings, respondent maintained an office for the practice of law within the First Judicial Department. The Departmental Disciplinary Committee seeks an order pursuant to 22 NYCRR 603.4 (e) (1) (i) and (iii) immediately suspending respondent from the practice of law based upon her failure to cooperate with the Committee’s investigation of several disciplinary complaints against her, and upon uncontested evidence of respondent’s professional misconduct that is an immediate threat to the public interest. Four of the seven disciplinary complaints filed against respondent involve unconsummated real estate sales in which respondent represented the seller, Rapsil Construction Corp. (Rapsil). In November 2005, Rapsil filed for bankruptcy. Subsequently, the filing was converted to a chapter 7 proceeding and a trustee was appointed. At that time, there were six prospective purchasers of Rapsil’s properties, four of whom filed complaints with the Committee. The trustee did not permit these sales to proceed, asked respondent for an accounting and to remit to him all of the purchasers’ downpayment deposits, totaling $507,600. Respondent gave the trustee a check in that amount from the firm’s IOLA account, which was returned for insufficient funds. The trustee then moved in Bankruptcy Court for an order directing respondent to turn over all records and funds being held in relation to Rapsil based upon his concern “that the contract vendee deposits have been stolen.” He also noted that respondent’s firm appeared to have simultaneously contracted to sell one of Rapsil’s properties to two separate purchasers and accepted contract deposits from each. The Bankruptcy Court granted the motion by order dated March 17, 2006 and directed respondent’s firm to comply within 10 days. To date, respondent has not complied with that order. A separate complaint was filed by respondent’s law partner, Carlyet Marshburn, alleging respondent misappropriated escrow funds and had abandoned legal matters of the firm. Mr. Marsh-burn has cooperated fully with the Committee with respect to *125these incidents. Significantly, Marshburn demonstrated that respondent fulfilled the day to day bookkeeping for the firm and kept the firm’s IOLA records in her office. Respondent removed those records, and, after initially stating that the discreptancies in the IOLA account were bank errors, admitted to Marshburn that she had misappropriated the funds and was attempting to replace them. A sua sponte investigation was commenced by the Committee based upon a letter dated April 21, 2006 from the Lawyers’ Fund for Client Protection which stated two of the firms IOLA check were dishonored. One was the check issued to the trustee in bankruptcy in the amount of $507,600, as well as another check in the amount of $760.22. This letter was forwarded by the Committee to respondent’s law firm. Respondent answered the letter, stating falsely that Marshburn had the records, that she was obtaining copies from the bank, and would forward them to the Committee. No IOLA records have been submitted to the Committee by respondent. As noted, Marshburn demonstrated to the Committee that respondent, not he, had control of the IOLA records. Because of respondent’s lack of cooperation, the Committee was forced to obtain a subpoena from us for the IOLA records. We also issued a subpoena for the Committee to take her deposition. Although three separate depositions were scheduled between July and September 2006, respondent failed to appear at any. She did contact the committee after her failure to appear at the first deposition, claiming she had suffered a stroke and was medically unable to appear at the July deposition. However, the medical records obtained by the Committee did not bear out respondent’s claim of inability to appear for the July deposition. Respondent has offered no reason for her failure to contact the Committee or appear at the two subsequently scheduled depositions. The Committee retained an investigative accountant who created a spreadsheet from the IOLA records subpoenaed from the bank. Respondent was served with this spreadsheet and asked to identify client matters and transactions. She has not responded to this request. An audit of respondent’s IOLA records clearly demonstrate that the balance in the account was far below the amount respondent was obligated to maintain intact on behalf of the individuals who made contract deposits for the Rapsil properties. Moreover, respondent continued to invade the escrow funds *126until, as of March 31, 2006, the last day of the audit period, there was a negative balance in the IOLA account. The records demonstrate, inter alia, that respondent issued more than $31,000 in checks in matters unrelated to Rapsil after her $507,600 check to the trustee had been dishonored. There were also unexplained disbursements in excess of $385,000 from the IOLA account to the firms operating account. Thus, even though respondent was aware of the deficit in the account, she continue to diminish client funds. These records show that respondent converted and/or misappropriated the escrow funds belonging to the purchasers under the Rapsil contracts by making disbursements in unrelated matters without authorization to do so. Moreover, respondent’s attempts at restitution, using personal funds in some cases, demonstrates that she converted and/or misappropriated escrow funds. We note that while the Committee was attempting to secure respondent’s cooperation with respect to the Rapsil matters, two additional complaints were received. One involved a situation where respondent contacted a client named Samantha Fong and asked her to invest in a real estate company operated by respondent. Ms. Fong signed an agreement and wired $40,000 to respondent. When respondent failed to respond to her inquiries regarding the investment, Ms. Fong went to respondent’s office and found it closed. She further discovered that all respondent’s bank accounts were closed. Respondent never submitted an answer to this complaint. The second additional complaint was from Cheryl Roberts-Burt, who had retained respondent for $10,000 to handle a commercial litigation matter. When Ms. Roberts-Burt’s inquiries as to the status of the matter went unanswered, she went to respondent’s office and found it closed. Again, respondent has not submitted an answer to this complaint. The Committee seeks respondent’s immediate suspension based upon her failure to cooperate, and uncontested evidence of serious professional misconduct that threatens the public interest (22 NYCRR 603.4 [e] [1] [i], [iii]). Respondent’s failure to answer three of the seven complaints, her failure to appear for several scheduled depositions or produce financial information and records pursuant to our subpoena demonstrates her failure to cooperate with the Committee. The uncontested evidence established that she converted and/or misappropriated client funds without permission or authority in violation of Code of Professional Responsibility DR 1-102 (a) (4) and DR 9-102 (a) (22 NYCRR 1200.3, 1200.46). We agree with the Com*127mittee that the pattern of her actions negates any semblance of mistake or negligence on her part. Moreover, respondent violated DR 1-102 (a) (4), (5) and (7) by lying to the Committee when she stated in those answers that she did file that she had returned most of the downpayments to the prospective purchasers. Additionally, respondent disregarded an order the United States Bankruptcy Court to remit the escrow funds related to Rapsil and account for those funds. Finally, respondent participated in a fraud by the simultaneous sale of the same property to two potential buyers. Respondent has not submitted opposition papers to the Committee’s motion for immediate suspension. The Committee has presented uncontested evidence that respondent has committed serious professional misconduct that immediately threatens the public interest warranting her interim suspension (Matter of Kohn, 18 AD3d 96 [2005]). Additionally, respondent has failed to fully cooperate with the Committee’s investigation into seven disciplinary complaints. Accordingly, the Committee’s motions should be granted and respondent immediately suspended from the practice of law until such time as disciplinary proceedings have been concluded, and until further order of this Court. Saxe, J.E, Friedman, Gonzalez, Sweeny and Catterson, JJ., concur. Respondent suspended from the practice of law in the State of New York, effective the date hereof, until such time as disciplinary matters pending before the Committee have been concluded and until the further order of this Court.

OPINION OF THE COURT Per Curiam. *129By decision and order on motion of this Court dated December 14, 2005: (1) the respondent was immediately suspended from acting as a legal consultant in the State of New York pursuant to 22 NYCRR 691.4 (1) (1) (ii) and (iii), upon a finding that she is guilty of professional misconduct immediately threatening the public interest based upon her substantial admissions under oath, and other uncontroverted evidence that she held herself out as an attorney and improperly performed legal services, (2) the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against the respondent, and (3) the issues raised were referred to the Honorable Thomas Sullivan, as Special Referee, to hear and report. Pursuant to Rules of the Court of Appeals (22 NYCRR) § 521.5, a person licensed to practice as a legal consultant is “subject to professional discipline in the same manner and to the same extent as members of the bar of this State.” The decision and order on motion dated December 14, 2005, directed the respondent to serve and file an answer to the Grievance Committee’s petition within 20 days after service upon her of a copy of that decision and order on motion. The petition contained one charge of professional misconduct emanating from a complaint that the respondent had identified herself as an attorney in a matrimonial action. The decision and order on motion dated December 14, 2005, was personally served on the respondent on January 17, 2006. To date, the respondent has failed to serve an answer to the petition. Accordingly, she is in default and the charge must be deemed established. Although duly served with the Grievance Committee’s motion to impose discipline upon the respondent based on her default on July 26, 2006, the respondent has neither asserted a response nor requested additional time in which to do so. Accordingly, the Grievance Committee’s motion is granted, the respondent is found to be in default, the charge in the petition is deemed established and, effective immediately, the respondent’s license to serve as a legal consultant on the law of Egypt is revoked. Prudenti, EJ., Miller, Schmidt, Goldstein and Florio, JJ., concur. Ordered that the motion to find the respondent, Nefesa Zakaria, licensed as Nefesa H. Zakaria, in default is granted; and it is further, Ordered that pursuant to Judiciary Law § 90, effective immediately, the respondent’s license to serve as a legal consultant *130is revoked, and her name is stricken from the roll of licensed legal consultants; and it is further, Ordered that the respondent, Nefesa Zakaria, licensed as Nefesa H. Zakaria, shall continue to comply with this Court’s rules governing the conduct of disbarred, suspended, and resigned legal consultants (see 22 NYCRR 691.10, 692.7); and it is further, Ordered that pursuant to Judiciary Law § 90, effective immediately, the respondent, Nefesa Zakaria, licensed as Nefesa H. Zakaria, is commanded to desist and refrain from (1) acting as a legal consultant in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as a legal consultant before any court, judge, justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding herself out in any way as a licensed legal consultant; and it is further, Ordered that if the respondent, Nefesa Zakaria, licensed as Nefesa H. Zakaria, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in her affidavit of compliance, pursuant to 22 NYCRR 691.10 (f).

OPINION OF THE COURT Saxe, J. This appeal raises the question of the types of machinery, equipment, tools and other items installed on business premises that are compensable as trade fixtures in the context of eminent domain. On July 20, 1998, the City acquired title by eminent domain to the property at 3087 Third Avenue in the Bronx, as part of the Melrose Commons Urban Renewal plan. At the time of the taking, claimant Kaiser Woodcraft was the owner and sole occupant of the property, at which it had operated a woodworking business. In addition to seeking compensation for the taking of the real property itself in the condemnation proceeding, Kaiser made a claim for 147 items it had used in its business, which it characterized as compensable trade fixtures, primarily machines and tools. Both Kaiser’s appraiser and the City’s appraiser employed the standard analytical framework, valuing the materials they viewed as trade fixtures on a “sound value” basis, by assigning to each item a reproduction value, from which they deducted depreciation to arrive at a sound value, to which were added percentages for items such as plans and permits, overhead and profits (so-called “soft costs”). However, based upon the experts’ differences of opinion as to which items they considered to be trade fixtures, and the appropriate deductions and soft cost percentages, Kaiser’s appraiser arrived at a final sound value of $564,270, corrected to approximately $577,000 during his trial testimony, while the final figure arrived at by the City’s appraiser was $128,936. A trial was held before the IAS court, at which Kaiser’s principal and both sides’ appraisers testified. The court rejected *13315 of Kaiser’s 147 claimed items as noncompensable, found the remainder of the listed items to be compensable trade fixtures, and as to those remaining items accepted the evaluation of Kaiser’s appraiser, awarding Kaiser the sum of $525,000 plus interest. The City challenges the IAS court’s treatment as trade fixtures of (1) various large pieces of machinery and equipment, such as the belt sanders, table saws, planer/jointer machine and drill presses, arguing that these items are movable, of standard design and usable in any woodworking or carpentry operation, (2) portable hand tools and other wall-mounted or table-mounted items that could be used in any woodworking or carpentry operation, which it contends also fall within the category as noncompensable personalty, and (3) items claimed to have merged with the underlying realty. The City also challenges the court’s award on the ground that the values assigned the items were incorrect and the sound value improperly calculated. Discussion It is fundamental that an owner whose property has been taken in condemnation is entitled to “just compensation” (US Const 5th Amend; NY Const, art I, § 7 [a]). While the condemnor does not acquire title to mere personalty located on the property, which the former property owner is free to remove, the City does not dispute that the law entitles the property owner to compensation for items such as machinery that meet the definition of “trade fixtures.” “New York takes a broad view in evaluating what improvements are to be regarded as [separately compensable] fixtures” (Rose v State of New York, 24 NY2d 80, 86 [1969]). Machinery is “deemed a fixture ‘where it is installed in such manner that its removal will result in material injury to it or the realty, or where the building in which it is placed was specially designed to house it, or where there is other evidence that its installation was of a permanent nature’ ” (id., quoting Matter of City of New York, 278 NY 276, 281-282 [1938]). Additionally, the term fixtures includes “those improvements which are used for business purposes and which would lose substantial value if removed” (see id. at 86). However, excluded from the category are items that have become an integral part *134of the real property (see Marraro v State of New York, 12 NY2d 285, 291 [1963]). Such installations as electric wiring and plumbing connections are ordinarily an integral part of the real estate, and therefore not separately compensable, except to the extent installed solely to service fixtures that were specially installed for the occupant’s particular purpose (see id. at 296-297, citing Matter of City of New York, supra). As the Court of Appeals observed in Rose, this formulation of the rules of just compensation for trade fixtures “signifies a recognition of the obvious realities confronting the business community,” since “[m]odern business, in order to produce goods and services, invests heavily in cumbersome and complicated machinery which, because of the manner of its installation, can only be removed with difficulty” (24 NY2d at 86). The courts have repeatedly emphasized that whether a claimed fixture is movable, or removable, is not the applicable criterion (see Matter of City of New York [Merrimaker Corp.], 51 AD2d 147, 149 [1976], lv denied 39 NY2d 710 [1976]). “ ‘[Annexation, adaptability, and intention of permanence convert machinery into a fixture, regardless of removability’ ” (id., quoting Matter of City of New York [Lincoln Sq. Slum Clearance Project], 24 Misc 2d 190, 202 [1959], mod on other grounds 15 AD2d 153 [1961], affd 12 NY2d 1086 [1963]). As Judge Friendly explained in United States v Certain Prop. Located in Borough of Manhattan, City, County & State of N.Y. (344d 142 [2d Cir 1965]), even asphalt tiles cemented to the floor by the tenant would only be viewed as having been integrated in the real property, so as to preclude separate entitlement to compensation for their value, “if the asphalt became the only floor or integral with it,” but not if the asphalt tiles were “removable without damage to the basic structure” (at 149 [emphasis added]). With a few exceptions, the items listed in Kaiser’s inventory consist of machinery and. equipment that were properly deemed compensable trade fixtures based on the testimony of Kaiser’s expert, on which the court was entitled to rely. Contrary to the City’s contention, these claimed items of machinery satisfied the “annexation, adaptability and permanence.” test. They were an integral part of Kaiser’s woodworking business, and most of the machines were large, with dedicated electrical lines that had to be installed by an electrician. The premises being small, the machines were arranged in a particular order to mirror the flow of work for *135maximum efficiency. Kaiser’s expert also testified that these machines would suffer a substantial depreciation in value if removed. The evidence further showed that racks, installed by Kaiser in key places along the flow of work to hold clamps and other items needed during the production process, would have minimal value if removed. Dust collectors were also installed to accommodate numerous machines in the production process and were ancillary to them. However, we agree with the City that the handheld power tools, included as part of item 22, of standard design although of industrial quality, retained the characteristic of personalty despite their integral role in Kaiser’s operation. They were not annexed to the property, the property was not adapted particularly to them, and there was no quality of permanence about their presence. As to the City’s claim that various claimed items had become an integral part of the building and therefore are not separately compensable, we agree with the City that portions of items 1, 2 and 3, specifically, the concrete blocks and related items that were used to form the outer wall of the building itself in place of windows that were removed due to security concerns, merged with the building and are not separately compensable. The custom-made front door is also such an item. Although it was specially designed and installed in order to accommodate large items used in Kaiser’s business, and was “used for business purposes and . . . would lose substantial value if removed” (see Rose, 24 NY2d at 86), nevertheless its identity necessarily merged with the building when it was installed as a structural part of the building, losing its separate identity as a fixture (see Marraro, supra). The door installed by Kaiser here cannot be equated with a drop ceiling or with tiles installed on top of permanent flooring; the door is, by nature, an essential, integral part of the building’s essential structure. As such, it cannot properly be categorized as a compensable trade fixture. Additionally, while the trial court correctly treated certain aspects of the electrical system as trade fixtures, the building’s basic electrical wiring cannot properly be classified as a trade fixture (see Marraro, 12 NY2d at 296). While electrical components particular to the business’s specialized electrical fixtures and fluorescent lighting are properly considered trade fixtures (id. at 296-297), certain parts of the main service panel (item 89) and the fused distribution panel on the first floor (item 146) are noncompensable basic electrical wiring. *136We reject Kaiser’s argument that Whitehall Corners v State of New York (210 AD2d 398 [1994]) eliminated the concept that fixtures can merge with the underlying real property. There, the tenant of condemned property made a claim for floor tiles, paneling, ventilation and air conditioning equipment, bathroom fixtures such as sinks and toilets, and a circuit breaker panel, and the State argued that these fixtures lost their separate identity when installed. The Court found that the contested items did not lose their separate identity, but only after noting that it was undisputed that the items were understood to remain the tenant’s property upon the termination of the lease. Therefore, the items in Whitehall Corners could not have merged with the underlying building, and the holding in Whitehall did not invalidate the concept of fixtures losing their separate identity by merging with or becoming integral parts of the underlying real property. Finally, we reject the City’s challenge to the manner in which the amount awarded by the trial court was calculated. Its adoption of the total sound value for the compensable items provided by Kaiser’s expert rather than the City’s expert, plus the expert’s “soft” costs calculations, was proper (see Matter of City of New York [Salvation Army], 43 NY2d 512, 516 [1978]). We have considered the City’s remaining arguments and find them unavailing. Accordingly, the seventh separate and partial final decree of the Supreme Court, Bronx County (Howard R Silver, J.), entered on or about September 2, 2005, which awarded claimant the sum of $525,000, with interest, as just compensation for its trade fixtures, should be modified, on the law and facts, to the extent of remanding the matter for deduction from the award of the sound value of the handheld power tools listed within item 22, the concrete blocks listed in items 1, 2 and 3, and item 5, the custom-made front door, and for a further determination of the value of the noncompensable components of the building’s basic electrical system, which is also to be deducted from the award, and otherwise affirmed, without costs. Mazzarelli, J.P., Marlow, Sullivan and Williams, JJ., concur. Seventh separate and partial final decree of the Supreme Court, Bronx County, entered on or about September 2, 2005, *137modified, on the law and facts, to the extent of remanding the matter for certain deductions from the award and components of the building’s basic electrical system, and otherwise affirmed, without costs.

OPINION OF THE COURT Marlow, J. The issue before us is whether, in the absence of express language in the Limited Liability Company Law (§ 101 et seq.), a member of a limited liability company has standing to sue derivatively on the company’s behalf. We hold that the mere omission of this language from this particular statute, a factor other courts see as a sole or significant reason to reject standing, is not enough to deprive a limited partner of the right to *140assert a claim on behalf of the company. We believe there are persuasive factors compelling us to give such a plaintiff standing. In 1977, nine individuals created Pennington Property Co. (the Pennington Partnership), a general partnership, to own and operate a hotel with approximately 184 single-room occupancy units at 316 West 95th Street in Manhattan. We note that plaintiffs owned a collective 25% interest in the Pennington Partnership, defendant Herbert Wolff ultimately acquired a 45% interest, and defendants Toby Birnbaum and Mark Cwern acquired the 10% interest of Rita Cwern, a former partner. On October 1, 1980, the Pennington Partnership leased the property to 316 West 95th Street Hotel Corp. for 21 years. Plaintiffs allege that in 1994, seven years before the lease expired, the Pennington Partnership secretly granted a new 30-year lease—from October 1, 2001, to September 30, 2031—(the second lease) to defendant Pennington Leasing Corp. at a rent far below market value. Plaintiffs maintain that the transaction was not at arm’s length, because shareholders of the lessee (Pennington Leasing Corp.) were family and friends of certain members of the lessor (the Pennington Partnership).1 In September 1995, the Pennington Property Company LLC (hereinafter the Pennington LLC) filed articles of organization converting the Pennington Partnership to a limited liability company, with unchanged membership interests. Plaintiffs maintain that defendant Wolff managed the Pennington LLC, but that it never formally adopted an operating agreement. By a deed recorded on May 30, 1997, the Pennington Partnership purportedly transferred the premises to the Pennington LLC. Plaintiffs further contend that on or about March 28, 2005, defendant Solomon Freedman, who owned no interest in the Pennington LLC, executed a contract, purportedly on behalf of the Pennington LLC, to sell the property to defendant 316 Pennington LLC, another entity the Podolskys owned and controlled, for $1.9 million. Plaintiffs claim the price was below market value. One month later, Freedman notified each Pennington LLC member of the sale and requested each to sign an enclosed approval form, whereby each would not only agree to the sale but *141also to pay a $100,000 fee to Freedman and Wolff for, in part, negotiating the transaction. Wolff, Birnbaum and Cwern, who together represented 55% of the interest in the Pennington LLC, executed the consent form. Plaintiffs also allege that at closing the parties amended the contract to lower the price yet further below market value to $1.2 million. Consequently, plaintiffs commenced this action, individually and on behalf of the Pennington Partnership and the Pennington LLC, seeking a judgment declaring the sale of the premises and the execution of the second lease unauthorized and void (first and second causes of action, respectively). Plaintiffs alleged that Freedman lacked the capacity to sign the requisite documents on behalf of the Pennington LLC and the sale was without the required approval of the members because, as interested parties, Wolff and Birnbaum could not give their consent. Plaintiffs further contended that the price was substantially below the property’s market value, thus rendering the sale unlawful and unconscionable. As for Parkway LLC’s acquisition of Pennington Leasing Corp., plaintiffs asserted that this arrangement effectively constituted an assignment of the second lease, which necessitated the owner’s prior written consent, which was never obtained. In addition, the complaint alleged causes of action for breach of fiduciary duty (third cause of action asserted against Herbert Wolff and Solomon Freedman) and aiding and abetting such breach (fourth cause of action asserted against 316 Pennington, Jay Podolsky, Stuart Podolsky and Toby Birnbaum). As relevant to this appeal, 316 Pennington moved to dismiss the first and fourth causes of action asserted against it in the amended complaint and to cancel the notice of pendency. The Podolsky defendants and Wolff separately cross-moved to dismiss the amended complaint as against them. Parkway LLC and Pennington Leasing Corp. moved to dismiss the second cause of action of the amended complaint as against them. The motion court dismissed the first and second causes of action on the ground that the individual plaintiffs lacked standing to assert a derivative claim on behalf of the Pennington LLC, and ordered the clerk to cancel the notice of pendency.2 The court denied the balance of defendants’ respective cross motions *142and dismissed the action as against defendants Irving Goldofsky, Sam Goldofsky, Rita Cwern, Pennington Leasing Corp. and Parkway LLC.3 Plaintiffs on appeal claim they do have standing to assert the first and second causes of action.4 Defendant Wolff cross-appeals the denial of his motion to dismiss the third cause of action and defendants Jay and Stuart Podolsky and 316 Pennington separately cross-appeal the denial of their motions to dismiss the fourth cause of action. We have never decided whether a member of a limited liability company has standing to maintain a derivative action. Absent any authority from this Court, the motion court was bound to follow the applicable ruling of another department (see People v Shakur, 215 AD2d 184, 185 [1995]). Apparently relying solely on McKinney’s Practice Commentaries, which note the “conscious omission” from the Limited Liability Company Law of the right to bring a derivative action (Rich, Practice Commentaries, McKinney’s Cons Laws of NY, Book 32A, Limited Liability Company Law, 2007 Pamph, at 6), the Second Department held that a member of a limited liability company has no standing to bring a derivative claim (see Hoffman v Unterberg, 9 AD3d 386, 388-389 [2004]). The Second Department has recently reiterated this position—but this time only in dicta (see Caprer v Nussbaum, 36 AD3d 176, 189 [2006]).5 We respectfully decline to follow the Second Department given (1) the historic judicial recognition of the common-law right to bring a derivative action on behalf of a corporation or a limited partnership, both of which share many of a limited liability company’s characteristics; (2) the principles of statutory construction, which provide that only a clear statement of legislative intent may override the common law; (3) the fact that most states provide a statutory right to bring a derivative claim; and (4) the unpersuasive rationale of those decisions *143which have rejected derivative claims for limited liability company members. The Limited Liability Company Law is a hybrid of the corporate and limited partnership forms, offering the tax benefits and operating flexibility of a limited partnership with the limited liability protection a corporation provides. While corporate shareholders and limited partners are specifically entitled by statute to bring derivative suits on behalf of their respective corporate and partnership entities, those rights were recognized at common law long before the Legislature codified them (see Bischoff v Boar’s Head Provisions Co., Inc., 436 F Supp 2d 626, 630 [SD NY 2006]; see also Riviera Congress Assoc. v Yassky, 18 NY2d 540, 547 [1966] [limited partners may sue derivatively on behalf of the partnership]; Brinckerhoff v Bostwick, 88 NY 52, 59 [1882], writ of error dismissed 106 US 3 [1882] [stockholders have standing to sue corporation in their own names]). Because a limited liability company structure blends key aspects of both the partnership and corporate forms, sharing similar characteristics of each, a fortiori, there is no reason to deprive members of limited liability companies of the same important right to bring a derivative action possessed by the members of limited partnerships and corporations. Indeed, there is nothing inherent in the limited liability company structure, operation, purpose, status, or benefits that would call for treating its members any differently, on the issue of standing, from the shareholders of corporations or the members of limited partnerships. The absence of a specific statutory grant of this right is not fatal to plaintiffs’ derivative claims.6 In addition to the rights afforded stockholders and limited partners, courts have historically allowed individuals to advance derivative claims notwithstanding the lack of express statutory authority (see e.g. Velez v Feinstein, 87 AD2d 309 [1982], lv dismissed in part and denied in part 57 NY2d 737 [1982], 57 NY2d 605 [1982] [trust beneficiaries allowed to commence derivative action on trust’s behalf); Caprer v Nussbaum, 36 AD3d 176 [2006], supra [condominium unit owners have standing to assert derivative action, independent of statutory authority]). And indeed, federal courts, applying New York law, have found that such a right exists for *144members of limited liability companies (see Bischoff, 436 F Supp 2d at 634 [taking into consideration the common law, the Limited Liability Company Law, its legislative history, and federal and state court precedent, New York Court of Appeals would hold that a member of a New York limited liability company may bring derivative suit on behalf of company]; Weber v King, 110 F Supp 2d 124, 131 [ED NY 2000] [failure to include a derivative action provision in Limited Liability Company Law does not prevent recognition of such a right at common law]). We find it wholly unpersuasive that, because the Legislature, apparently purposefully, omitted the right of a member to advance a derivative claim from the Limited Liability Company Law, such claims must be denied. Notably, while the statute’s earlier versions contained a provision for a derivative action, the reason for its omission was “purportedly to ease passage of the balance of the statute” (Bischoff, 436 F Supp 2d at 629, citing Rich, Practice Commentaries, supra [“to avoid jeopardizing passage of the balance of the law” this provision “was dropped” (at 630, quoting Rich at 6)]). Indeed, “it is a general rule of statutory construction that a clear and specific legislative intent is required to override the common law” (Hechter v New York Life Ins. Co., 46 NY2d 34, 39 [1978]; see also Rabouin v Metropolitan Life Ins. Co., 307 AD2d 843, 844 [2003]). We believe the statute’s silence on this issue cannot be construed as a specific legislative intent to override the common law, nor do we perceive any reason to do so (see Bischoff, 436 F Supp 2d at 631-632; see also Callison and Sullivan, Limited Liability Companies: A State-by-State Guide to Law and Practice § 4.7 [2006 ed] [even when right to bring a derivative claim is not available under the limited liability company statute, court may recognize common-law right for members to sue derivatively]). We are aware of that portion of the Practice Commentaries (Rich, Practice Commentaries at 6), which explains the absence of language affording limited liability company members a right to bring a . derivative action and suggesting that the statute’s silence was a strategic compromise to increase the likelihood of the passage of the “balance of the law.” As seductive as that circumstance may appear as a basis for the theory adopted by the Second Department in Hoffman v Unterberg (9 AD3d 386 [2004], supra), we respectfully disagree with that holding, because we believe it to be at odds with the long-standing rules of statutory construction requiring *145a clear expression of legislative intent to overrule a common-law principle.7 Defendants maintain that—the question of standing aside— the sale and lease are valid because a majority of the Pennington LLC’s members approved the transaction in accordance with the partnership agreement. Plaintiffs argue that the sale of the company’s sole asset was an extraordinary event for which the partnership agreement required unanimous approval. Should the partnership agreement no longer apply—in light of the change from a partnership to a limited liability company— plaintiffs alternatively argue that a two-thirds majority was required pursuant to the statute in effect on the date of sale. Plaintiffs also claim that the consents for the sale are invalid under the statute since Wolff and Birnbaum both had a financial interest in that transaction, and that Parkway LLC’s acquisition of Pennington Leasing Corp. (the holder of the second lease) constituted an assignment of the second lease, the terms of which require written consent from the lessor (the Pennington Partnership). However, plaintiffs maintain that although Wolff signed an agreement and consent to the acquisition, he had no authority to bind the lessor-landlord, he signed the consent in his individual capacity, and the consent made no reference to the lease agreement or leased property. Defendants are not entitled to have the court dismiss these claims based on documentary evidence. The parties’ agreement does not conclusively establish that only a mere majority was required to approve the sale. Indeed, since the sale was of the company’s sole asset, it would appear, at this early stage of the action, that plaintiffs are likely correct in interpreting the agreement to require unanimous approval. In any event, regardless of whether a majority, two-thirds, or unanimous vote was required, Limited Liability Company Law § 411 disallows a transaction between a limited liability company and one or more of its managers, or with another business entity in which one or *146more of its managers has a substantial financial interest. Therefore, plaintiffs have alleged a viable cause of action which the documentary evidence does not refute. Nor does the documentary evidence establish that there was consent to an assignment of the second lease in accordance with the lease agreement so as to compel dismissal of this cause of action at this juncture. We also reject defendants’ challenges to the causes of action for breach of fiduciary duty and for aiding and abetting the breach. Accepting the truth of plaintiffs’ allegations, as CPLR 3211 requires on a motion to dismiss (see Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]), they advance a potentially viable claim for breach of fiduciary duty (see Limited Liability Company Law § 409 [a]; Birnbaum v Birnbaum, 73 NY2d 461, 465-466 [1989]; Salm v Feldstein, 20 AD3d 469 [2005] ). Similarly, plaintiffs have sufficiently stated a cause of action for aiding and abetting a breach of fiduciary duty (cf. Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 101-102 [2006] ). Accordingly, the order of Supreme Court, New York County (Herman Cahn, J.), entered March 23, 2006, which, to the extent appealed and cross-appealed from, as limited by the briefs, dismissed the first and second causes of action in the first amended complaint and denied certain defendants’ motions to dismiss the third and fourth causes of action, should be modified, on the law, the first cause of action reinstated against Herbert Wolff, 316 Pennington LLC, Jay Podolsky, Stuart Podolsky, Solomon Freedman, Toby Birnbaum, and the second cause of action reinstated against Herbert Wolff, 316 Pennington LLC, Jay Podolsky, Stuart Podolsky, Solomon Freedman, Toby Birnbaum, Parkway LLC and Pennington Leasing Corp., the notice of pendency reinstated, and otherwise affirmed, without costs. The order of the same court and Justice, entered July 6, 2006, which granted the motion of defendants Parkway LLC and Pennington Leasing Corp. to dismiss the second cause of action, should be reversed, on the law, without costs, the motion denied and the cause of action reinstated. Tom, J.P, Williams, Catterson and Malone, JJ., concur. Order, Supreme Court, New York County, entered March 23, 2006, modified, on the law, the first cause of action reinstated against Herbert Wolff, 316 Pennington LLC, Jay Podolsky, Stu*147art Podolsky, Solomon Freedman, Toby Birnbaum, and the second cause of action reinstated against Herbert Wolff, 316 Pennington LLC, Jay Podolsky, Stuart Podolsky, Solomon Freedman, Toby Birnbaum, Parkway LLC and Pennington Leasing Corp., and the notice of pendency reinstated, and otherwise affirmed, without costs. Order, same court, entered July 6, 2006, reversed, on the law, without costs, the motion denied and the cause of action reinstated. . In 2003, defendant Parkway LLC, a company owned and controlled by defendants Jay and Stuart Podolsky, acquired Pennington Leasing Corp., the holder of the second lease. . The motion court also dismissed the fifth cause of action for breach of fiduciary duty asserted against Herbert Wolff, Irving Goldofsky and Sam Goldofsky, hut plaintiffs do not challenge this aspect of the decision and order on appeal. . The action against Sol Orbuch was discontinued. . Plaintiffs also separately appeal from a subsequent order entered July 6, 2006, which granted the motion of defendants Parkway LLC and Pennington Leasing Corp. to dismiss the second cause of action and cancel the notice of pendency. . The issue in Caprer was whether condominium unit owners could bring a derivative action on behalf of the condominium. Notably, the Court held that ‘ ‘ [c] ondominium unit owners are . . . entitled to the same consideration by the courts as the litigants in those situations in which the courts have historically allowed derivative actions to proceed, independent of any statutory authority” (id.). . A statutory right to bring a derivative claim on behalf of a limited liability company exists in most states (see Callison and Sullivan, Limited Liability Companies: A State-by-State Guide to Law and Practice § 4.7 [2006 ed]). . We note other decisions, relied on by defendants and the motion court, which hold that no derivative right exists. However, these decisions are not binding on this Court, nor do they persuasively argue for this result. In Lio v Mingyi Zhong (10 Misc 3d 1068[A], 2006 NY Slip Op 50016[U], *4 [2006]), the court, citing only two cases, noted that “most courts have held that the deliberate omission of such a remedy in the statute means that there is no such right at all” and therefore concluded that the “more persuasive authority is that there is no such right.” One of the cases cited is Hoffman (supra). The other is Schindler v Niche Media Holdings (1 Misc 3d 713 [2003]), which like Hoffman relies only on the Rich Practice Commentaries.

OPINION OF THE COURT Per Curiam. Respondent Rafael Ventura-Rosa was admitted to the practice of law in the State of New York by the First Judicial Department on September 19, 1983. At all times relevant to this petition, respondent resided in the State of Florida but is neither admitted to the Florida bar nor otherwise licensed to practice law in that state. These proceedings arise from respondent’s representation of Henry Fiol, a New York resident who, in January 2003, engaged respondent by telephone to bring a copyright infringement action seeking recovery of royalties from one Roberto Torres and his business entities, all of which are located in Florida. Mr. Fid’s payment, by money order, of $1,000 as an initial retainer is not documented by a retainer agreement. Respondent sent a letter to Roberto Torres, in Miami, in which respondent stated that he was representing Mr. Fiol in the matter. The stationery bears the heading “Estudio Jurídico Ventura-Rosa” (Law Office Ventura-Rosa), “Dr. Rafael Ventura-Rosa Abogado y Asesor Legal” (Dr. Rafael Ventura-Rosa Attorney and Legal Counsel), listing addresses in both New York City and Miami. The letterhead fails to indicate the jurisdictions of respondent’s admission to the practice of law. Furthermore, respondent has never maintained an office at the address listed in New York. As the result of a settlement reached with Roberto Torres the following month, a check was made out to respondent, on his instructions, in the amount of $3,384.96, which respondent did not deposit in an attorney trust account but simply cashed. A letter dated April 25, 2003 from the client demanding the proceeds of the settlement was ineffective in securing payment. Also unavailing was a verbal request by Mr. Fiol, made in June 2003, asking that the money be repaid to Roberto Torres for the purpose of preserving the claim against him. In May 2003, Mr. Fiol registered a complaint with the Florida State Bar and, in June, respondent gave testimony before the Unauthorized Practice of Law Committee of the Florida State *150Bar. These proceedings before the Florida Committee culminated in an agreement that respondent would pay Mr. Fiol $3,384.96 and, without admitting to such conduct in the past, would refrain from the unauthorized practice of law in the State of Florida. In March 2004, respondent entered into a stipulation with the Florida Committee that a writ of injunction would issue permanently enjoining respondent from holding himself out as an attorney authorized to practice law in Florida, giving advice about Florida law, representing another person in a Florida legal matter, using a letterhead with a Florida address without clearly indicating that he was not admitted to practice in Florida, acting as house counsel in Florida unless complying with Florida requirements, and otherwise engaging in the unlawful practice of law. Respondent also agreed to repay Mr. Fiol the $1,000 received as a retainer fee within 30 days and to return to Roberto Torres, on behalf of Mr. Fiol, the $3,384.96 received in settlement of their copyright dispute. On April 22, 2004, the Florida Supreme Court issued a judgment and order granting a petition by the Florida Committee to approve the settlement. The inability to procure the proceeds of the settlement of the copyright action despite the issuance of the Florida Supreme Court consent order prompted Mr. Fiol to file a complaint with the Departmental Disciplinary Committee. On December 1, 2005, the Committee served respondent with a notice and statement of charges, alleging that he violated: Code of Professional Responsibility DR 1-102 (a) (3) (22 NYCRR 1200.3) by engaging in the unauthorized practice of law in Florida; DR 9-102 (a) (22 NYCRR 1200.46) by misappropriating settlement proceeds he had received on behalf of a client; DR 9-102 (b) by failing to deposit settlement funds he received on behalf of his client in a special account; DR 7-106 (a) (22 NYCRR 1200.37) by disregarding an order and judgment entered on consent by the Florida Supreme Court requiring respondent to return the retainer fee and the misappropriated settlement proceeds in accordance with his client’s directions; and DR 1-102 (a) (7) by reason of the totality of his actions demonstrating his lack of fitness as an attorney. Respondent filed an answer and, in a prehearing stipulation dated January 17, 2006, admitted to substantially all of the factual allegations contained in the charges but not to the charges themselves. A scheduled hearing was adjourned based on respondent’s representation that traveling to New York *151would impose “a severe financial burden.” Respondent did not appear on the adjourned date, and the Referee proceeded with the liability portion of the hearing, sustaining all of the charges except that respondent’s unauthorized practice of law in Florida constituted criminal activity. Respondent was notified that a sanction hearing would be held on March 3, 2006, but his participation was limited to the submission of a post-hearing memorandum. In a report dated April 21, 2006, the Referee adopted committee staff’s recommendation of a three-year suspension with the proviso that readmission would be conditioned on respondent’s compliance with the Florida Supreme Court judgment. In June 2006, a Hearing Panel convened to hear oral argument and review the Referee’s findings, but it was unable to secure respondent’s appearance. The Hearing Panel unanimously confirmed the Referee’s findings of fact and conclusions of law but modified the sanction recommendation. The Panel concluded that respondent’s “knowing, continued and deliberate misappropriation of client funds and knowing, continued and deliberate disregard of a judgment of the Florida Supreme Court ordering the return of those funds” warranted “the most severe sanction, that of disbarment.” The Committee now seeks an order pursuant to 22 NYCRR 603.4 (d) confirming the Hearing Panel’s determination that confirmed, in part, the Referee’s report and imposing such discipline as this Court deems fair, just and equitable. The evidence together with respondent’s admissions establishes that he engaged in conduct that amounts to the unauthorized practice of law, failed to deposit the proceeds of a settlement in an attorney trust account and diverted those funds to his own use, failed to abide by the terms of a stipulation he entered into with the Florida Committee, ignored the judgment of the Florida Supreme Court and, despite the pendency of these prior proceedings or the disciplinary proceedings before the Committee, steadfastly refused to repay the amounts directed by that court. No evidence was offered by respondent at the hearing in mitigation of his conduct although contacted by the Committee by telephone for that purpose. This Court is unpersuaded by respondent’s contention that the sanction of disbarment should be reserved for multiple instances of misappropriation of client funds (e.g. Matter of Birnbaum, 308 AD2d 180 [2003] [17 intentional instances of conversion involving 16 client matters]; Matter of Marks, 72 AD2d 399 *152[1980] [eight incidents of misappropriation and conviction of petit larceny]). While respondent’s misconduct arises out of a single client matter, it has involved proceedings before tribunals in two states during which he has demonstrated his refusal to honor his stipulated agreement to make restitution and his disdain for a court order and judgment to that effect. Respondent’s cooperation in the proceedings conducted in this state has been begrudging. Thus, we conclude that respondent’s disrespect for the disciplinary proceedings of two jurisdictions and for the process of law (DR 7-106 [a]) so adversely reflects on his fitness as a lawyer that he should no longer be permitted to practice (DR 1-102 [a] [1], [3], [4], [5], [7]). Nor do we credit the distinction that respondent’s admission to the misconduct charged falls short of an admission to engaging in the unauthorized practice of law in the State of Florida. In short, under the totality of the attendant circumstances, considering respondent’s conceded dishonesty, his contumacy and lack of contrition, imposition of the ultimate sanction of disbarment is warranted. Accordingly, the Committee’s motion should be granted to the extent of striking respondent’s name from the roll of attorneys in the State of New York, effective immediately. Tom, J.P., Saxe, Friedman, Sullivan and McGuire, JJ., concur. Respondent disbarred, and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective the date hereof.

OPINION OF THE COURT Fisher, J. This appeal turns principally on the meaning of a single word in the blanket additional-insured endorsement of a commercial general liability insurance policy. In April 1999, Scala Contracting Co., Inc. (hereinafter Scala), entered into an agreement with the City of New York to perform certain construction work on a sidewalk at Linden Boulevard and Malta Street in Brooklyn. The agreement, inter alia, required Scala to procure and maintain comprehensive general liability insurance that included an endorsement naming the City as an additional insured. Scala obtained a policy from the Evanston Insurance Company (hereinafter Evanston) containing a blanket provision that made the City an additional insured “only with respect to liability arising out of [Scala’s] ongoing operations performed for [the City] and then only as respects any claim, loss or liability arising out of [Scala’s] operations . . . and only if such claim, loss or liability is determined to be solely the negligence or responsibility of [Scala].” On or about June 17, 1999, Oliver Lamb, an employee of Scala, allegedly was injured while working at the site when he was struck by two vehicles owned, leased, or operated by James Boynton and Iasia Bradley. Lamb commenced an action against both Boynton and Bradley, and Boynton, in turn, commenced a third-party action against Scala and the City, claiming, inter *155alia, that they had failed to provide Lamb with a safe workplace. Insofar as relevant to this appeal, the third-party complaint alleged that Scala’s actions or omissions “caused and/or contributed” to “the injuries and damages sustained by [Lamb],” and that Lamb “was caused to sustain serious and severe personal injuries as a result of the negligence of [Scala], its agents, servants and/or employees.” The City tendered the claim to Evanston for defense and indemnification, but the carrier denied coverage on two grounds. First, it asserted that the City had failed to provide it with timely notice of the claim and, second, it maintained that it had no duty, under the terms of the policy, to defend or indemnify the City unless and until a determination was made that Scala was 100% at fault for Lamb’s injuries. The City thereupon commenced this action for a judgment declaring that Evanston was obligated to defend and indemnify it in the underlying action under the additional-insured endorsement. The City moved, and Evanston cross-moved, for summary judgment. The Supreme Court determined that triable issues of fact existed as to whether the City’s notice of claim was timely. That portion of the order is not at issue on this appeal inasmuch as the City concedes that there are triable issues of fact as to the timeliness of the notice of claim, and does not dispute that Evanston would have no duty to defend or indemnify should it ultimately be determined that the notice of claim was untimely (see e.g. Brennan Bros. Co., Inc. v Lumbermens Mut. Cas. Co., 14 AD3d 525, 526 [2005]). The court went on to find, however, that, under the terms of the additional-insured endorsement, Evanston’s duty to defend and indemnify the City would be triggered only if Scala were shown, in the underlying action, to be 100% at fault for the happening of the accident. Thus, the court resolved the motion and cross motion for summary judgment by declaring, inter alia, that, unless it were determined in the underlying action that Lamb’s injuries were 100% attributable to Scala’s negligence, the City would not be entitled to coverage under the Evanston policy, regardless of whether it provided timely notice of the claim. The City appeals from that portion of the order. It is undisputed that Lamb’s claim arose out of Scala’s ongoing operations performed for the City at the site. The point of contention is the meaning of the language in the policy that makes the City an additional insured only if Lamb’s “claim, loss or liability is determined to be solely the negligence or responsibility of [Scala]” (emphasis supplied). *156Evanston would read the word “solely” to mean, as the Supreme Court found, that the City would be an additional insured, entitled to defense and indemnification, only if Scala’s negligence alone, and that of no other person or entity, were determined to be responsible for the accident. Evanston argues that such a determination could never be made here inasmuch as Boynton’s third-party complaint against Scala seeks only contribution and not common-law indemnification, and that therefore Boynton has, in effect, conceded that his own negligence was a proximate cause of the accident. The City, on the other hand, would read the word “solely” to refer only to an apportionment of fault as between Scala and itself, without regard to the potential liability of third parties. Thus, the City maintains that it would be an additional insured under the policy if Scala bore some responsibility for the accident and the City itself bore none. We agree with the City. Where the language of a policy of insurance is ambiguous and susceptible of more than one reasonable interpretation, the parties may submit extrinsic evidence as an aid in construction; but when extrinsic evidence “will not resolve the equivocality of the language of the contract, the issue remains a question of law for the court” (State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]). Here, we find that, as used in the policy’s blanket additional-insured endorsement, the word “solely” is ambiguous, and neither party suggests that extrinsic evidence will aid in ascertaining its intended meaning. Thus, the question is one of law for the court to determine. Under such circumstances, “[c]ourts have consistently construed ambiguous policy provisions in favor of coverage and against the insurer who drafted the policy” (Primavera v Rose & Kiernan, 248 AD2d 842, 843 [1998]; see MDW Enters, v CNA Ins. Co., 4 AD3d 338, 340-341 [2004]; Scalia v Equitable Life Assur. Socy. of U.S., 263 AD2d 537 [1999]). Indeed, “[i]n order for the insurer to prevail, it must demonstrate not only that its interpretation is reasonable but that it is the only fair interpretation” (Primavera v Rose & Kiernan, supra at 843). Although, arguably, both of the proposed interpretations of the word “solely” are reasonable, Evanston’s interpretation is hardly the only fair one. Insurance contracts are to be interpreted according to the reasonable expectations and purposes of ordinary businesspeople when making ordinary business contracts (see General Motors Acceptance Corp. v Nationwide Ins. Co., 4 NY3d 451, 457 [2005]; Belt Painting Corp. v TIG Ins. *157Co., 100 NY2d 377, 383 [2003]). In our view, the City’s interpretation best comports with such reasonable expectations and purposes here because it would exclude coverage only in those cases in which the putative additional insured is found to be partially at fault for the happening of the accident. By contrast, Evanston’s interpretation would indiscriminately exclude coverage in every case in which any person or entity other than the named insured is in any degree at fault for the accident, irrespective of whether the putative additional insured bears any responsibility for it at all. Such extremely narrow coverage would be, at best, of minimal value to the reasonable businessperson (cf. Belt Painting Corp. v TIG Ins. Co., supra at 387; Pepsico, Inc. v Winterthur Intl. Am. Ins. Co., 13 AD3d 599 [2004]). Under these circumstances, therefore, the endorsement must be construed in favor of the City. Accordingly, we find that the City would be an “additional insured” under the policy if it is determined, in the underlying action, that Scala bears some responsibility for the happening of the accident and the City bears none. This brings us, then, to the central question of Evanston’s duty to defend the City in the underlying action. “It is well settled that an insurance company’s duty to defend is broader than its duty to indemnify. Indeed, the duty to defend is ‘exceedingly broad’ and an insurer will be called upon to provide a defense whenever the allegations of the complaint ‘suggest ... a reasonable possibility of coverage’ . . . ‘If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be’ ” (Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137 [2006] [citations omitted]; see Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 310 [1984]; New York City Hous. Auth. v Commercial Union Ins. Co., 289 AD2d 311, 312 [2001]; 79th Realty Co. v X.L.O. Concrete Corp., 247 AD2d 256 [1998]; Zurich-American Ins. Cos. v Atlantic Mut. Ins. Cos., 139 AD2d 379, 384 [1988], affd 74 NY2d 621 [1989]). In this case, Evanston would have the duty to defend the City in the underlying action if, liberally read, the allegations in the third-party complaint “give[ ] rise to the reasonable possibility of recovery under the policy” (Belt Painting Corp. v TIG Ins. Co., supra at 383). Conversely, a declaration that the carrier has no duty even to defend could be made “only if it could be concluded as a matter of law that there is no possible factual or *158legal basis on which [Evanston] might eventually be held to be obligated to indemnify [the City] under any provision of the insurance policy” (Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875, 876 [1976]). Here, the third-party complaint plainly alleges that Scala’s negligence caused or contributed to Lamb’s accident. Thus, there is at least a reasonable possibility that Scala, in the underlying action, will be found wholly or partially at fault in the happening of the accident, and that the City will be found to bear no responsibility for it, triggering Evanston’s obligation to indemnify the City under the policy. Accordingly, subject to the Supreme Court’s resolution of the outstanding issue of fact concerning the timeliness of the City’s notice of claim, we find that Evanston has a duty to defend the City in the underlying action. Evanston’s remaining contentions are without merit. Accordingly, the order is reversed insofar as appealed from, on the law, that branch of Evanston’s cross motion which was for summary judgment is denied, and the City’s motion is granted to the extent of declaring, subject only to the resolution of outstanding issues of fact concerning the timeliness of the City’s notice of claim, that Evanston is obligated to defend the City in the underlying action, and the matter is remitted to the Supreme Court, Kings County, for a hearing to determine the issues of fact concerning the timeless of the City’s notice of claim, and for entry, at the appropriate time, of a judgment making the appropriate declaration. Miller, J.E, Krausman and Dillon, JJ., concur. Ordered that the order is reversed insofar as appealed from, on the law, with costs, the defendant’s cross motion for summary judgment is denied, and the plaintiffs motion is granted to the extent of declaring, subject only to the resolution of outstanding issues of fact concerning the timeliness of the plaintiff’s notice of claim, that the defendant is obligated to defend the plaintiff in the underlying action and the matter is remitted to the Supreme Court, Kings County, for a hearing to determine the issues of fact concerning the timeliness of the plaintiff s notice of claim, and for entry, at the appropriate time, of a judgment making the appropriate declaration.

OPINION OF THE COURT Per Curiam. Respondent Jerry M. Vasquez was admitted to the practice of law in the State of New York by the First Judicial Department on May 2, 1988. At all times relevant herein, respondent was a solo practitioner with an office within the First Judicial Department. The Disciplinary Committee seeks an order accepting respondent’s affidavit of resignation and striking his name from the roll of attorneys, effective immediately, pursuant to 22 NYCRR 603.11, and directing respondent to make restitution to Patsy Lopez in the sum of $5,000 and, where appropriate, to the Lawyers’ Fund for Client Protection pursuant to Judiciary Law § 90 (6-a). The Committee’s motion should be granted. Respondent’s affidavit of resignation sworn to November 16, 2006, complies with 22 NYCRR 603.11 in that he states that his resignation is submitted freely, voluntarily and without coercion or duress, that he is fully aware of the implications of submitting his resignation, he is aware that the Committee is investigating complaints of professional misconduct against him, and further acknowledges that if charges were brought predicated upon those complaints, which include allegations of intentional conversion and/or misappropriation of client and/or third party funds held in escrow, he would be unable to successfully defend himself (see e.g. Matter of Lieberman, 23 AD3d 91 [2005]). Specifically, respondent acknowledges that a check for $45,500 has been dishonored from his escrow account, a complaint alleging neglect has been filed against him, and another complaint alleges he failed to release $5,000 he was holding in escrow for the benefit of Patsy Lopez relating to a real estate transaction. The branch of the Committee’s motion pursuant to Judiciary Law § 90 (6-a) should also be granted. Judiciary Law § 90 (6-a) (a) authorizes this Court to order an attorney to make monetary restitution for money that was wilfully misappropriated or misapplied in the practice of law, and further authorizes us to require reimbursement to the Lawyers’ Fund for Client Protection for awards made to the person whose money was misappropriated. In addition, section 90 (6-a) (d) provides: *161“An order issued pursuant to this subdivision may be entered as a civil judgment. Such judgment shall be enforceable as a money judgment in any court of competent jurisdiction by any person to whom payments are due thereunder, or by the lawyers’ fund for client protection where it has been subrogated to the rights of such person.” This Court has issued such restitution orders where the victim and the amount misappropriated are sufficiently identified (see Matter of Nanna, 9 AD3d 230 [2004] [resigned attorney who kept unearned fees directed to reimburse clients or the Fund specific amounts retained]; Matter of Hsu, 257 AD2d 309, 310311 [1999] [restitution ordered to former clients and to Lawyers’ Fund in amounts set forth in the respondent’s affidavits of confession of judgment]). The Committee states that it has conferred with the Lawyers’ Fund which advised that there is currently a claim pending against respondent whereby an award for $5,000 is requested for the benefit of Ms. Lopez. The Fund has asked that respondent be directed to make restitution pursuant to Judiciary Law § 90 (6-a), since such an order may serve as a civil judgment in favor of Ms. Lopez or the Fund in the event that a reimbursement award were to be granted (see Matter of Tannenbaum, 17 AD3d 44 [2005]). Given respondent’s admission that he cannot defend himself against the allegation that he failed to release $5,000 he was holding in escrow on behalf of Ms. Lopez, the Committee also asks this Court to require such restitution. Accordingly, the Committee’s motion pursuant to 22 NYCRR 603.11 should be granted, respondent’s resignation accepted and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective nunc pro tunc to November 16, 2006, the date of his affidavit of resignation. Further, the branch of the Committee’s motion pursuant to Judiciary Law § 90 (6-a) (a) should also be granted, respondent directed to make restitution to Patsy Lopez in the admitted amount of $5,000 or to the Lawyers’ Fund for Client Protection for any awards made by the Fund as a result of his misconduct. Sullivan, J.E, Williams, Sweeny, Catterson and Malone, JJ., concur. *162Respondent’s resignation accepted, and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective nunc pro tunc to November 16, 2006, as indicated.

McGuire, J., dissents in a memorandum as follows: I respectfully dissent. In this action brought by former clients of the defendant law firm for legal malpractice, plaintiffs allege that defendant negligently provided erroneous advice concerning the legality under Russian law of a particular vehicle for investment in certain Russian securities (the SP Structure), and that plaintiffs relied on that advice and suffered damages as a result of their reliance. As plaintiffs have never disputed, by commencing this action they waived the attorney-client privilege with re*202spect to the SP Structure (Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 834, 835 [1983]; Hearn v Rhay, 68 FRD 574, 581 [1975]). As the record reveals, the raids and seizures relating to plaintiffs’ business activities undertaken by Russian law enforcement officials may not have been prompted solely by the formation and operation of the SP Structure. Rather, issues relating to plaintiffs’ compliance with tax and licensure laws also may have prompted those actions. Any legal advice that plaintiffs received relating to such tax and licensure matters, however, could not possibly shed any light on what caused the Russian authorities so to act. Accordingly, even if the negligent advice regarding the SP Structure “was framed [in the complaint] as the sole cause of plaintiffs’ injury in Russia,” discovery by defendant into the legal advice plaintiffs received relating to other matters, including the tax and licensure issues, would not explain why the Russian authorities took the actions that they did. Moreover, any allegation that the negligent advice regarding the SP Structure was the sole cause of plaintiffs’ injuries would be gratuitous, as plaintiffs are required to prove only that the advice was a substantial factor in bringing about their injuries (DeBartolo v Coccia, 276 AD2d 663 [2000]). Thus, plaintiffs’ allegations on causation did not place “at issue” the legal advice they received on subjects other than the SP Structure. Of course, it is conceivable, at least as a logical matter, that discovery by defendant of otherwise privileged communications and advice relating to the tax and licensure issues might show that plaintiffs regularly disregard legal advice and thus did not rely on defendant’s advice relating to the SP Structure. But the abstract possibility that invading the privilege would reveal such a state of affairs cannot ground a valid argument for upholding a waiver of the privilege. If it could, as plaintiffs point out, by filing a legal malpractice suit a plaintiff would be forced to disclose all legal advice it ever received for purposes of determining whether it tended to listen to its lawyers. To be sure, defendant expressly disavows such an argument. But once defendant’s reliance on plaintiffs’ allegations on causation is disregarded, defendant’s claim of waiver reduces to the proposition that because plaintiffs have waived the privilege with respect to the SP Structure by alleging that they relied on defendant’s advice, plaintiffs have waived the privilege with respect to the advice they received on other subjects relating to their business dealings in Russia. For these reasons, I would hold that by bringing this action plaintiffs did not put at issue, and thereby waive the attorney- *203client privilege with respect to, any advice they received on tax and licensure issues (Stark v Greenberg, Dauber & Epstein, 219 AD2d 571, 572 [1995] [communications between plaintiffs and their attorneys over issues not raised in malpractice action remain privileged]; TIG Ins. Co. v Yules & Yules, 1999 WL 1029712, *1, 1999 US Dist LEXIS 17607, *4-5 [SD NY 1999] [“at issue” waiver recognized “where the party is in fact invoking the substance of the privileged conversation ... or where the claim or defense is of such a nature that an assessment of its merits requires an examination of the substance of a privileged conversation” (emphasis added)] [construing New York law]).* Supreme Court did not reach the alternative argument defendant offered in support of its motion, i.e., that plaintiffs waived the privilege with respect to legal advice concerning compliance with tax and licensure requirements by permitting their former general counsel to testify about these issues at his deposition. Understandably, given its conclusion that plaintiffs waived the privilege on these issues by virtue of the allegations of the complaint, the majority also does not address defendant’s alternative argument. I would address this argument and reject it. Contrary to defendant’s contentions, plaintiffs’ former general counsel did not testify about otherwise privileged communications and advice during his deposition. Accordingly, I would reverse, declare that plaintiffs have not waived the attorney-client privilege as to legal advice they received regarding compliance with Russian tax laws and licensure requirements, and deny defendant’s motion. The case the majority cites, Orco Bank v Proteinas Del Pacifico (179 AD2d 390 [1992]), does not support defendant’s position. In Orco Bank, the plaintiff had alleged that it had loaned money in reliance on a letter by one of the defendant’s managers stating that the defendant held valuable collateral “at the disposal of the plaintiff’ (id.). During the deposition of the plaintiffs president, “defendant attempted to probe the measures plaintiff took to assure itself of the existence of this [collateral] and of the authority of defendant’s manager to issue the representation” (id.). In response, the plaintiffs president stated that the plaintiff had “relied upon the advice of its lawyers who informed it, for example, ‘we had a good security’ ” (id.). The plaintiff “withheld more detailed testimony, and documents, on grounds of attorney-client privilege” (id.). On these facts, this Court held “Supreme Court properly found plaintiff had waived the attorney-client privilege by placing the subject matter of counsel’s advice in issue and by making selective disclosure of such advice” (id. [citations omitted]). By contrast, there are no comparable facts in this case demonstrating that plaintiffs have impermissibly used the attorney-client privilege as a shield and a sword (see United States v Bilzerian, 926d 1285, 1292 [2d Cir 1991] [noting that privilege “cannot at once be used as a shield and a sword”]).

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered March 31, 2005, which denied the municipal defendant’s motion to dismiss plaintiffs second through seventh causes of action and defendant S.J. Rehab Corp.’s motion to dismiss the entire complaint on grounds of statute of limitations, reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment accordingly. In its complaint, plaintiff Superb General Contracting Co. (Superb) alleges that in July 1993 it contracted with defendant City, through the City’s construction manager, defendant Amherst Rehab Associates (Amherst), to perform rehabilitation work at four residential buildings owned by the City and located in the Bronx. Thereafter, the construction work was managed by defendant S.J. Rehab Corp. (SJ Rehab) and Amherst Development Services Corporation (ADSC), a joint venture. Superb alleges that it fully performed the work required under the contract and that it completed its work on or about September 29, 1995. In September 2003, Superb filed a verified notice of claim with the City Comptroller seeking monies that it claimed were due under the contract; in March 2004 that claim was denied. On March 15, 2004, Superb commenced this action against the City, Amherst, SJ Rehab and ADSC. The first cause of action is for the balance of the contract price allegedly due and the second through seventh causes of action seek to recover additional costs incurred by Superb for which defendants allegedly are liable under the contract. Pursuant to CPLR 213 (2), an action founded upon a contractual obligation or liability must be commenced within six years of accrual. A cause of action for breach of a construction contract accrues upon substantial completion of the work (see Phillips Constr. Co. v City of New York, 61 NY2d 949 [1984], citing State of New York v Lundin, 60 NY2d 987 [1983]). Although plaintiff commenced this action some 8V2 years after the date it alleg*205edly fully performed under the contract, Supreme Court denied the motions to dismiss on statute of limitations grounds. Agreeing with Superb’s position, Supreme Court ruled that the provisions of section 3.8 of the contract governed in determining when Superb’s causes of action accrued and that there were questions of fact in that regard. In relevant part, that section reads as follows: “3.8 Determining Date of Completion; Liquidated Damages Upon Re-Inspection. Final inspection of the Work by the CM [Construction Manager] shall be made within five (5) Days after receipt of the Contractor’s written request therefor. The Work will be deemed complete as of the date of such inspection if, upon such inspection, the CM finds that no further Work remains to be done at the Site. However, if such inspection, in the opinion of the CM, reveals items of Work still to be performed, the Contractor shall promptly perform them and then request a reinspection, which shall be made not more than five (5) Days after the date of the request therefor. If, upon any such reinspection, the CM determines that the Work is complete, the date of completion shall be deemed to be the actual date of such reinspection. Contractor agrees to pay liquidated damages to the CM in the amount of One Hundred Dollars ($100.00) for each reinspection, which liquidated damages the CM may deduct from the amount due to the Contractor pursuant hereto . . . .” We disagree with Supreme Court’s conclusion that section 3.8, rather than the date of substantial completion of the work, governs in determining when Superb’s causes of action accrued. First, in the course of prescribing a method for determining the “[d]ate of [c]ompletion,” section 3.8 does not state that the contractor has the right to be paid only after that date has been determined in accordance with its terms. Nor can it reasonably be construed so to provide. If section 3.8 were construed to specify the exclusive conditions under which the contractor has the right to be paid, the accrual of a cause of action for payment would be a matter within the unilateral control of one of the parties to the contract. Thus, an extraordinary advantage would be conferred upon the construction manager. Regardless of whether or when the contractor makes a written request for a final inspection, the construction manager unilaterally could prejudice if not defeat the contractor’s right to payment by, for example, deferring or refusing to undertake an inspection. Such a construction of section 3.8 should be avoided if reasonably possible (see Fleischman v Furgueson, 223 NY 235, 241 [1918] [“A court will endeavor to give the construction most equitable to both parties instead of the construction which will give one of them an unfair and unreasonable advantage over the other”]). *206Indeed, under Superb’s view of section 3.8, it would follow that its causes of action have not yet accrued for the simple reason that no final inspection has taken place. That is hardly a reasonable construction of section 3.8 (see Matter of Lipper Holdings v Trident Holdings, 1 AD3d 170, 171 [2003] [“A contract should not be interpreted to produce a result that is absurd, commercially unreasonable or contrary to the reasonable expectations of the parties” (citations omitted)]). In addition, to construe section 3.8 as specifying the exclusive conditions under which the contractor has the right to be paid would not be consistent with section 9.4, which bears the heading “Final Payment,” and while specifying certain of the parties’ obligations in regard to final payment, neither employs the term “date of completion” nor otherwise refers to section 3.8 (see Reda v Eastman Kodak Co., 233 AD2d 914, 915 [1996] [When interpreting a contract, a “reasonable effort must be made to harmonize all of its terms”]).* Both the City and SJ Rehab argue that even if a final inspection and determination of completion pursuant to section 3.8 are conditions precedent to the accrual of any cause of action, Superb never requested a final inspection. Because “a party to a contract cannot rely on the failure of another to perform a condition precedent where he has frustrated or prevented the occurrence of the condition” (A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20, 31 [1998] [internal quotation marks and citations omitted]), they maintain that Superb cannot use its own failure as an excuse for tolling the running of the statute of limitations. Given our conclusion that section 3.8 does not govern the accrual of causes of action under the contract, we need not address this contention. Concur—Friedman, J.P, Sullivan, Williams and McGuire, JJ. Sweeny, J., dissents and would affirm for reasons stated by Bernard J. Fried, J. For the same reasons, we reject Superb’s argument based on section 11.2, which prohibits any action under the contract unless it “shall he commenced within one (1) year after the date of filing in the office of the Comptroller of the final payment voucher pursuant to section 9.4.” According to Superb, because the construction manager has never filed such a voucher (which failure is allegedly contrary to the requirements of section 9.4), its causes of action have yet to accrue. The provisions of section 11.2, however, which plainly are designed to shorten the period in which plaintiff can sue, cannot sensibly be read to expand that period.

*207Judgment, Supreme Court, New York County (Rena K. Uviller, J., on motion to consolidate; Marey L. Kahn, J., at suppression hearing; Robert H. Straus, J., at trial and sentence), rendered January 8, 2004, convicting defendant, after a jury trial, of robbery in the first and third degrees, and sentencing him, as a persistent violent felony offender, to concurrent prison terms of 20 years to life and SVa to 7 years, respectively, unanimously reversed, on the law, and the matter remanded for a new trial. Defendant was charged under indictment No. 832/03 with robbery in the first degree, under the theory that he forcibly stole property from Yasmine Richard while displaying what appeared to be a pistol, and was charged under indictment No. 1428/03 with robbery in the first degree with respect to Krista Dunbar, and with robbery in the third degree and sexual abuse in the first degree with respect to a third victim. It was not an improvident exercise of discretion to grant the People’s motion to consolidate the indictments pursuant to CPL 200.20, since the three robberies charged, though relating to separate incidents, are defined by the same or similar statutory provisions, the sexual abuse charge was intertwined with one of the robbery charges, and proof of each crime was separately presented and easily segregable in the mind of the jury (see People v Lane, 56 NY2d 1, 7-8 [1982]; People v Quezada, 294 AD2d 175 [2002], lv denied 98 NY2d 713 [2002]; People v Negron, 166 AD2d 165, 166 [1990], lv denied 77 NY2d 909 [1991]). The fact that the jury acquitted defendant of the sexual abuse charge and was unable to reach a verdict on the first-degree robbery charge as to Dunbar further indicates that defendant suffered *208no prejudice by the consolidation and that the jury was able to segregate the evidence as it related to each charge (see People v Wright, 300 AD2d 191, 192 [2002], lv denied 99 NY2d 634 [2003]; Quezada, 294 AD2d at 176). By the end of the second round of voir dire, 11 jurors and 2 alternates had been selected, the People had used 12 of their 15 peremptory challenges, defendant had used 13 of his 15 peremptory challenges, and no prospective jurors remained. The trial court announced, “I really don’t think it’s necessary to call in for another panel when you had all these people to choose from,” and asked the parties to agree on two of the already struck veniremembers. The People withdrew their peremptory challenges against two of the panelists. Defendant objected to the process of revisiting stricken panelists, but the trial court asserted there would be no prejudice since defendant could still exercise his unused peremptory challenges. Reiterating his objection, defendant used his last remaining peremptories to strike the two reinstated jurors. At that point, the trial court admitted that it was “constrained to call for another panel. . . an unfortunate situation.” Although the entire reason for devising a new voir dire procedure no longer existed, since a third panel would have to be summoned, the trial court refused defendant’s request that he be granted two additional peremptory challenges and the People be limited to three, which would restore the number of peremptory challenges to the status quo before the court’s panel-conservation process. The court denied the request and tallied that the People had five remaining peremptory challenges and defendant none. Defendant moved for a mistrial, which the court denied. As the People concede, the trial court committed reversible error by deviating from the order of jury selection set forth in CPL 270.15 (2) and permitting, over defendant’s objections, the prosecutor to withdraw two peremptory challenges, resulting in defendant’s use of his remaining peremptory challenges to strike the reinstated panelists (see People v McQuade, 110 NY 284 [1888]). Accordingly, the judgment must be vacated and the case remanded for a new trial. Contrary to the assertion in defendant’s pro se supplemental brief, the police had reasonable suspicion to stop him. The police received a radio run that a man was robbing a woman on the corner of 117th Street and Lenox Avenue, and upon their arrival at that location an unidentified woman stated, “[t]he guy across the street walking northbound ... on the west side of Lenox wearing the wool hat had just robbed a female,” while pointing at defendant, who was the only person headed in that *209direction and the only one wearing a hat (see People v Benjamin, 272 AD2d 67 [2000], lv denied 95 NY2d 863 [2000]). The motion court properly found that the showup identification of defendant by Christopher Hall, a citizen-informant, was unduly suggestive, since the police told him beforehand that “they had gotten the person” and “needed to make sure” it was the person he had seen (see People v Pries, 206 AD2d 873, 874 [1994]). However, the court erred in finding an independent source for identification at trial based on an inference that Hall must have seen the perpetrator’s face, because he observed him on five separate occasions, over a 15-minute period, and noticed his skin color and hairstyle, as well as a cigarette dangling from his mouth. Hall expressly testified that, initially, he “didn’t pay attention to [the perpetrator’s] face,” but only saw the side of his head, which gave him the opportunity to see the skin color, haircut, and cigarette. On each of the subsequent encounters, Hall was either unable to see the face or refused to look at it. Moreover, he specifically stated that his identification was based on the suspect’s build and clothes. Thus, Hall had an independent source to describe the perpetrator’s physical characteristics and apparel (see People v Redcross, 246 AD2d 838 [1998], lv denied 92 NY2d 859 [1998]), but the People failed to demonstrate by clear and convincing evidence that the showup would not influence the witness’s in-court identification of defendant (see People v Young, 7 NY3d 40, 44 [2006]; People v Underwood, 239 AD2d 366 [1997], lv denied 90 NY2d 911 [1997]). The showup identification by Yasmine Richard, conducted in close temporal and spatial proximity to the robbery, was not rendered impermissibly suggestive by the fact that defendant was displayed with his hands cuffed behind him, surrounded by uniformed officers, one of whom held his arm, in the vicinity of a number of marked patrol cars, with an “alley light” shining on him, or by an officer’s comment that they had a “possible” and that she should “say whether it was him or wasn’t him who committed” the robbery (see People v Rubi, 19 AD3d 139, 140 [2005], lv denied 5 NY3d 809 [2005]). In any event, the hearing court properly found that Richard had an extensive opportunity to view defendant during the lengthy face-to-face robbery, and thus an independent source (see People v Kilpatrick, 28 AD3d 360 [2006], lv denied 7 NY3d 791 [2006]). We express no opinion on the remaining issues raised on appeal, and leave them to the sound discretion of the court on retrial, should they arise (see People v Evans, 94 NY2d 499, 504-506 [2000]). Concur—Mazzarelli, J.P., Williams, Buckley, Gonzalez and Sweeny, JJ.

Appeal from order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered July 19, 2005, which denied plaintiff infant’s motion, upon his failure to appear on the return date, to vacate a prior order, same court (Michael DeMarco, J.), entered on or about March 26, 2001, compromising plaintiffs claims, and to restore the action to the calendar, unanimously dismissed, without costs. Appeal from a purported order, same court and Justice, entered October 6, 2005, which purportedly denied plaintiffs motion to vacate the order of July 19, 2005, unanimously dismissed, without costs, as taken from a nonappealable refusal to sign an ex parte order to show cause to vacate the July 19, 2005 order, such appeal deemed an application pursuant to CPLR 5704 (a) to review such refusal, the order to show cause granted, plaintiff directed to personally serve a copy of the order to show cause on defendant’s attorneys within 20 days of the date of this order, and the order to show cause made returnable 14 days from the date of such service. No appeal lies from either an order entered on default (CPLR 5511) or a refusal to grant an order applied for without notice (CPLR 5701 [a] [2]). However, such refusal may be reviewed by way of an application pursuant to CPLR 5704 (a). We grant plaintiff’s order to show cause and direct Supreme Court to decide plaintiffs motion to vacate his default. Concur—Andrias, J.E, Marlow, Gonzalez, Sweeny and Catterson, JJ.

Order and judgment (one paper), Supreme Court, New York County (Marylin G. Diamond, J.), entered April 27, 2005, which, after a jury verdict in favor of defendant on his counterclaim for malicious prosecution, awarded compensatory damages of $10,000 and punitive damages of $100,000, and bringing up for review an order, same court and Justice, entered August 19, 2004, which granted plaintiffs motion to set aside the verdict or to reduce the award for punitive damages solely to the extent of setting aside the verdict on punitive damages and granting a new trial thereon, unless defendant stipulated to reduce such damages from $275,000 to $100,000, unanimously modified, on the facts, to the extent of remanding for a new trial on punitive damages only, and otherwise affirmed, without costs, unless defendant stipulates, within 20 days after service of a copy of this order with notice of entry, to accept punitive damages in the amount of $10,000, and to entry of an amended judgment in accordance therewith. This action arose out of a physical altercation that occurred between plaintiff and defendant at a Greenwich Village restaurant named Boxers. The parties were co-owners of Boxers and two other restaurants in Manhattan, and had been engaged in a long-running dispute involving the management of the restaurants. Plaintiff alleges that he had not been physically present in any of the restaurants for several months because defendant had made threats against him. With respect to the altercation, plaintiff alleges that on March 9, 2000, defendant, after being alerted to his presence in the restaurant, entered and committed an unprovoked assault upon him. Plaintiff claims that defendant “head-butted” him 15 to 20 times, punched him in the face and hit him with a bar stool. For his part, defendant alleges that plaintiff initiated the incident by hitting him in the head with a telephone and punching him, and that he responded by head-butting plaintiff twice *212in self-defense. The only noncombatant eyewitness to testify at trial, the restaurant manager, stated that she heard defendant utter an expletive at plaintiff and then saw the parties “scuffling.” After the parties were separated, plaintiff called the police, who came to the restaurant and interviewed both combatants and the manager. After these interviews, the police arrested defendant for assault. Plaintiff, now accompanied by his lawyer, walked to the precinct, allegedly at the request of the police. Ultimately, defendant was criminally charged with assault and harassment, but was acquitted after a bench trial in Criminal Court. Plaintiff then commenced the instant civil action against defendant for assault and battery. Defendant counterclaimed for assault, battery and malicious prosecution. A trial was held and the jury found neither party liable for assault or battery, but found plaintiff liable on the malicious prosecution counterclaim. The jury awarded defendant $10,000 in compensatory damages and $275,000 in punitive damages. Plaintiff moved to set aside the verdict on the malicious prosecution claim as against the weight of the evidence, and to set aside or reduce the jury’s punitive damages award. He argued that the trial evidence did not support the jury’s findings that he initiated a criminal prosecution with malicious intent and lacked probable cause to believe he was the victim of a criminal assault. The trial court denied plaintiffs motion to set aside the liability verdict, but granted a new trial on punitive damages unless defendant stipulated to a reduced award of $100,000. On October 4, 2004, defendant so stipulated and judgment was subsequently entered. On appeal, plaintiff argues that the jury’s verdict on the malicious prosecution claim was against the weight of the evidence and should have been set aside. We disagree. “A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence. The determination of the jury which observed the witnesses and the evidence is entitled to great deference” (Mesiti v Wegman, 307 AD2d 339, 340 [2003] [internal quotation marks and citations omitted]). Thus, the power to set aside a jury verdict should be exercised sparingly, “for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict” (Nicastro v Park, 113 AD2d 129, 133 [1985]). To prevail on his counterclaim for malicious prosecution, de*213fendant was required to prove four elements: (1) plaintiffs initiation of a criminal proceeding against him, (2) termination of the proceeding in his favor, (3) lack of probable cause, and (4) malice (Brown v Sears Roebuck & Co., 297 AD2d 205, 208 [2002], citing, inter alia, Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]). “Failure to establish any one of these elements defeats the entire claim” (Brown at 208). The jury’s finding that defendant proved all four elements of his malicious prosecution counterclaim is supported by a fair interpretation of the trial evidence. First, with respect to the initiation of a criminal proceeding, plaintiff is precluded from challenging the jury’s implicit finding of this element. In fact, a review of the court’s instructions to the jury demonstrates that the question of initiation was never given to the jury to decide. Instead, the court’s charge assumed that plaintiff initiated a criminal proceeding and merely asked the jury to decide the questions of probable cause and malice.* Since the record indicates that plaintiffs counsel neither objected to the court’s charge nor requested any specific instruction on the element of initiation, plaintiff has waived any right to challenge this finding on appeal (CPLR 4110-b). Even if plaintiff had not waived this issue, his argument would fail on the merits. A malicious prosecution defendant must do more than merely report a crime to the police and cooperate in its prosecution; rather, he or she must play an active role in the prosecution, such as by encouraging or importuning the authorities to act (Brown at 209). “[A] defendant may be said to have initiated a criminal proceeding by providing false evidence to the police or withholding evidence that might affect the determination by the police to make an arrest” (id. at 210). Here, it is undisputed that plaintiff summoned the police to the restaurant and accused defendant of initiating the altercation by head-butting him 20 times without provocation. However, the jury’s verdict, which included specific findings that plaintiff maliciously initiated a criminal proceeding, and did so without probable cause, strongly indicates that the jury did not believe plaintiffs testimony about an unprovoked attack by defendant. Ample evidence fairly supports a finding that plaintiff initiated a criminal proceeding by making a false accusation to the police namely, defendant’s testimony about how he was attacked by plaintiff. Other factors support the jury’s conclusion that plaintiff *214played an active role in securing the arrest and prosecution of defendant. After calling the police to the restaurant, plaintiff also called his personal attorney, who arrived shortly thereafter and accompanied plaintiff to the police precinct. Although the record is unclear whether defendant was arrested at the restaurant or later at the precinct, it is clear that, at a minimum, both plaintiff and his attorney were in favor of the determination to arrest defendant. This conclusion is buttressed by evidence of two additional events that occurred before and after the March 9, 2000 altercation, both relevant to plaintiff’s state of mind on that date. First, six months before the incident in Boxers, plaintiff admits that he left a message on defendant’s telephone answering machine threatening to have defendant put in jail, where he would be sodomized. Plaintiff claims that he left this message because defendant had been making death threats against him. Second, a week after the Boxers incident, plaintiff called the police from his hospital bed to request that the police arrest defendant for violating an order of protection that prohibited defendant from entering the three restaurants the parties co-owned. Whatever the propriety of defendant’s actions in each of these incidents, at a minimum they give rise to a strong inference that plaintiff, contrary to his testimony, was vigorously seeking defendant’s arrest and incarceration. Regarding the second element of malicious prosecution, defendant’s acquittal of the criminal charges against him definitively establishes that such charges were terminated in his favor (Chmielewski v Smith, 73 AD2d 1053 [1980]; see generally Smith-Hunter, 95 NY2d at 195-196). Nor was the jury’s finding on the third element—that plaintiff had no probable cause to accuse defendant of a crime—against the weight of the evidence. Probable cause requires a showing of “such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe that [defendant] had committed the [crime]” (Smith v County of Nassau, 34 NY2d 18, 25 [1974]). When the defense of probable cause is based on conflicting evidence, from which reasonable persons might draw different inferences, the question is one for the jury, not the court (Kramer v City of New York, 173 AD2d 155, 156 [1991], lv denied 78 NY2d 857 [1991]). Here, the jury was properly given the issue of probable cause since its existence depended almost entirely on which of the two conflicting versions of how the fight began should be credited. In our view, no basis exists to disturb the jury’s findings of credibility in favor of defendant. Even though defendant was a *215larger man than plaintiff and the manager’s testimony indicated that defendant returned to the restaurant to confront plaintiff, there still is no direct evidence from a noninterested witness as to who started the physical altercation. Moreover, there was ample basis in the trial record for the jurors to conclude that plaintiff was prone to making false or exaggerated accusations against defendant for the purpose of having him arrested. Finally, a fair interpretation of the evidence supports the jury’s finding of malice. Malice, in the malicious prosecution context, exists where the malicious prosecution defendant commences a criminal proceeding “due to a wrong or improper motive, something other than a desire to see the ends of justice served” (Nardelli v Stamberg, 44 NY2d 500, 502-503 [1978]). Further, in an appropriate case, “a jury may, but is not required to, infer the existence of actual malice from the fact that there was no probable cause to initiate the proceeding” (Martin v City of Albany, 42 NY2d 13, 17 [1977]). Here, as indicated, the jury expressly found no probable cause, and also heard additional evidence of plaintiffs threats and attempts to have defendant arrested. Such evidence amply justifies the jury’s finding of actual malice. The only remaining issue involves the jury’s punitive damages award, which was reduced by stipulation to $100,000. Punitive damages may be awarded in an action for malicious prosecution if the party so charged was motivated by actual malice (Nardelli, 44 NY2d at 503 [“a finding of liability for malicious prosecution precludes a determination as a matter of law that punitive damages are improper, for the actual malice necessary to support an action for malicious prosecution also serves to justify an award of exemplary damages”]). Whether to award punitive damages in a particular case and the amount of such damages are questions for the trier of fact, and such an award, if any, should not be lightly disturbed (id.). Under the test set forth in the United States Supreme Court decision in BMW of North America, Inc. v Gore (517 US 559, 568 [1996]), we find that under the particular circumstances in this case, which involved an altercation between business associates, the award of punitive damages, as reduced by the trial court, to be excessive to the extent indicated. Concur—Friedman, J.E, Marlow, Sullivan, Nardelli and Gonzalez, JJ. At one point during the charge, the court instructed: “Mr. Maskantz doesn’t deny that he was responsible for the prosecution, but contends that he acted in good faith and on reasonable grounds.”

*216Order, Supreme Court, New York County (Debra A. James, J.), entered October 19, 2005, which granted defendants’ motion to dismiss the complaint for lack of subject matter jurisdiction and denied plaintiff’s cross motion for leave to amend the complaint, and order, same court and Justice, entered December 7, 2005, which granted plaintiffs motion for reargument and, upon reargument, adhered to the prior determination, unanimously affirmed, with costs. Plaintiff was formerly employed by defendant hospital as an attending physician in its department of obstetrics and gynecology; the three individual defendants were the other members of the hospital’s maternal/fetal medicine group during the period of plaintiff’s employment. To the extent the complaint and proposed amended complaint assert claims based on the hospital’s allegedly wrongful termination of plaintiffs employment and withdrawal of his staff privileges, the motion court correctly concluded that, whether such claims seek damages or reinstatement, it lacked subject matter jurisdiction to entertain them since they had not yet been reviewed by the Public Health Council under the grievance procedure provided by Public Health Law § 2801-b (see Indemini v Beth Israel Med. Ctr., 4 NY3d 63 [2005]; Gelbard v Genesee Hosp., 87 NY2d 691 [1996]; Moallem v Jamaica Hosp., 264 AD2d 621 [1999]). To the extent plaintiffs pleadings assert claims to recover unpaid compensation allegedly earned while he was actually employed by the hospital (i.e., prior to his termination), such claims, even if not subject to Public Health Council review, are, in both the original complaint and the proposed amended complaint, intermingled with the claims barred by Public Health Law § 2801-b rather than separately pleaded. We decline to parse plaintiffs pleadings for the purpose of severing the cognizable claims, if any, from those that are premature. Concur—Friedman, J.E, Sullivan, Catterson and McGuire, JJ.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered April 17, 2006, which, to the extent appealed from as limited by the briefs, denied defendants-appellants’ motion for *217summary judgment, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint. The issue in this legal malpractice action is whether plaintiff established that “but for” the negligence of defendants in failing to timely commence a personal injury action on her behalf, she would have prevailed in that litigation. On July 4, 2002, plaintiff was walking through the lobby of the Trump Taj Mahal Casino Resort in Atlantic City when she slipped on a substance she identified as vomit. Plaintiff did not see any substance on the floor prior to her fall. She alleges that after she fell, a woman dressed in a blazer and holding a walkie-talkie, whom she believed to be a security guard, came over and told her to get up. When she tried to get up unassisted, she allegedly fell again in the vomit. According to plaintiff, she pulled herself over to a carpeted area, where she was able to stand. Subsequently, she was escorted to a nurse’s station by the security guard. The nurse helped clean plaintiffs clothes and instructed her to wait for an ambulance. However, plaintiff and her daughters, who were also present at the casino that night, decided to leave the casino and drive home to New York. Plaintiff went to the emergency room that night, and a few days later was treated at Astor Care Medical, PC., where she was diagnosed with various bulging discs and a disc herniation. Plaintiff received chiropractic treatment for her injuries for more than a year. On July 9, 2002, plaintiff retained defendant law firm and attorney to represent her in a personal injury action against the casino. After meeting with plaintiff, defendant Kuczinski wrote letters to the casino, in August 2002 and March 2003, advising them of plaintiffs potential claim and requesting insurance information. In the second letter, Kuczinski also requested the surveillance tape for the date of plaintiffs accident. An insurance adjuster for the self-insured casino responded to each letter, requesting an explanation as to the basis for the casino’s liability and further indicating that the casino “does not permit me to release internal incident and/or injury reports.” Defendant Kuczinski asserts that the casino never made a settlement offer due to their belief that no liability existed due to a lack of actual or constructive notice. In July 2004, after being contacted by plaintiffs daughter, defendant Kuczinski acknowledged that the two-year New Jersey statute of limitations for personal injury actions had expired, and that no action on plaintiffs behalf had been timely commenced. *218In September 2004, plaintiff commenced the instant action for legal malpractice against defendants. Prior to depositions, defendants moved for summary judgment based on plaintiffs interrogatory answers, in which she admitted that she had no information as to how long the vomit existed prior to her accident or whether the casino had any prior notice of such condition. Defendants argued that because plaintiff could not show actual or constructive notice of the dangerous condition, she therefore cannot meet her burden in the legal malpractice action of demonstrating that “but for” the defendants’ negligence, she would have prevailed in the underlying action. In opposition, plaintiff submitted her own affidavit which incorporated several statements allegedly made by the security guard, including an initial direction to plaintiff to “get up,” and after plaintiff responded she was unable to do so, the guard’s additional statement that “you have to try to get up or else I can’t help you.” The court denied defendants’ summary judgment motion, finding that the security guard’s alleged statement that plaintiff would not receive assistance unless she tried to get up herself raised a triable issue “as to whether the casino had actual notice with regard to her second, subsequent fall in the same location.” After depositions, defendants filed a “renewed” motion for summary judgment, this time relying on plaintiffs deposition testimony, where she again admitted that she had no information regarding how long the dangerous condition existed. Defendant Kuczinski also noted that during each of his discussions with plaintiff about the case, she never mentioned any “second” fall. Plaintiff responded that she should not be penalized for her inability to prove notice in the underlying action, since that inability was solely the product of defendants’ negligence in failing to investigate the case and timely commence an action. According to plaintiff, had a formal action been timely commenced, she would have obtained the names of crucial witnesses, such as the security guard, as well as any surveillance videotapes kept by the casino, in routine pretrial discovery proceedings. In addition, plaintiff argued that actual or constructive notice could be inferred in the underlying action, given the vomit’s proximity to the lobby desk and bell boy station. The court denied the renewed motion for summary judgment, finding that in light of the security guard’s alleged statements to plaintiff after her initial fall, “plaintiff has raised a triable issue of fact, at least as to her second fall, that the casino had actual notice of the unsafe condition . . . .” We reverse. In order to establish a prima facie case of legal malpractice, a *219plaintiff must demonstrate that he or she would have succeeded on the merits of the underlying action but for the attorney’s negligence (Davis v Klein, 88 NY2d 1008, 1009-1010 [1996]; McClellan v Jacoby & Meyers, L.L.P., 30 AD3d 223 [2006], lv denied 7 NY3d 712 [2006]). Thus, in order to defeat summary judgment in this case, plaintiff was required to demonstrate that she would have prevailed in her underlying personal injury action against the casino, had such an action been timely commenced. This burden of proving “a case within a case” is a heavy one (Lindenman v Kreitzer, 7 AD3d 30, 34 [2004]). In order to hold a landowner liable for a dangerous condition on its premises, a plaintiff must demonstrate that the defendant either created, or had actual or constructive notice of the hazardous condition which precipitated the injury (Zuk v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 275 [2005]; Mejia v New York City Tr. Auth., 291 AD2d 225, 226 [2002]).* However, notice alone is not enough; the plaintiff must also show that defendant had “a sufficient opportunity, within the exercise of reasonable care, to remedy the situation” after receiving such notice (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 250 [1984], affd 64 NY2d 670 [1984], citing Madrid v City of New York, 42 NY2d 1039 [1977]; see also Mercer v City of New York, 88 NY2d 955 [1996] [no evidence that defendant had actual or constructive notice and a reasonable time to correct or warn about its existence]; Simmons v Metropolitan Life Ins. Co., 84 NY2d 972, 973 [1994] [no prima facie case of negligence where no evidence of notice of icy condition or whether defendant had sufficient time to remedy the dangerous condition]). In the case at bar, plaintiff failed to introduce any evidence that the casino either created the dangerous condition, or had actual or constructive knowledge of it (see Mercer, 88 NY2d at 956). Plaintiff admitted in both her affidavit and deposition testimony that she has no information regarding how long the vomit was on the lobby floor prior to her accident, thus negating any possibility of proving constructive notice. The motion court found a triable issue as to actual notice of the condition, based on the security guard’s interaction with plaintiff after her initial fall in the vomit. We disagree for several reasons. First, even assuming the alleged security guard was an authorized agent of the casino, the casino or its agents manifestly did not have a reasonable opportunity to remedy the *220condition after receiving notice thereof (see George v Big V. Supermarkets, 258 AD2d 438, 439 [1999]; Mercer v City of New York, 223 AD2d 688, 690-691 [1996], affd 88 NY2d 955 [1996]). Under plaintiffs version of the facts, the casino (or its agent) did not receive actual notice of the dangerous condition until the security guard approached her and observed her on the floor after her initial fall. Obviously, at that juncture, notice of the condition was basically irrelevant since plaintiff had already slipped, and until plaintiff was able to stand up and leave the area, the casino had no practical opportunity to remedy the condition. Not even plaintiff has suggested that the casino had an obligation to clean up the vomit from under or around her before she stood. While a landowner certainly has an obligation to remedy a dangerous condition in a reasonably prompt manner, so as to avoid additional accidents, there was no legal requirement under the circumstances presented for defendants to remedy the condition almost instantaneously, before plaintiff could even get up off the floor. The precedents of this Court and the Court of Appeals have never imposed such a burden on landowners, but rather permit an owner a reasonable time to remedy a dangerous condition after having received notice (Simmons v Metropolitan Life Ins. Co., 84 NY2d at 973; Lee-Pack v 1 Beach 105 Assoc., LLC, 29 AD3d 644, 645 [2006] [defendants established that a reasonably sufficient time had not elapsed after the precipitation ended to permit them to remedy icy condition]; Edwards v DeMatteis Corp., 306 AD2d 309, 310 [2003] [regardless of notice issue, defendants did not have sufficient time from cessation of storm to remedy condition]). Second, contrary to the motion court’s finding, there is no evidence in this record that the security guard had actual notice of a dangerous condition at the time of plaintiffs second fall. Although plaintiff introduced multiple statements by the security guard in support of her own case, she produced no evidence to show that the security guard was aware of the vomit upon which she had slipped, or that she told the guard of its existence, prior to her second fall. While the security guard obviously would have observed plaintiff on the floor, actual notice of a slip and fall is not the legal equivalent of notice of a dangerous condition, and only the latter gives rise to liability against the casino. Third, because the lack of evidence of actual or constructive notice and a reasonable opportunity to remedy the condition effectively precludes any liability against the casino as a landowner, plaintiff suggests that the casino may be held liable based *221on the security guard’s purported negligent failure to assist her in getting up. We disagree. The only evidence offered by plaintiff in support of this argument was the security guard’s hearsay statements telling plaintiff that she had to try to get up before she would receive assistance. Contrary to the motion court’s ruling, we find that these statements were offered for the truth of the matter asserted therein, as there would be no other reason to offer these statements other than to prove that the security guard acted negligently by instructing plaintiff in this manner. Notably, however, plaintiff made no attempt to meet her burden of establishing that the security guard was authorized to speak on the casino’s behalf, and thus, the security guard’s statement was not admissible under the speaking-agent exception to the hearsay rule (Tyrrell v Wal-Mart Stores, 97 NY2d 650, 652 [2001]; Alvarez v First Natl. Supermarkets, Inc., 11 AD3d 572, 573-574 [2004]). Hearsay alone is insufficient to defeat summary judgment (Navedo v 250 Willis Ave. Supermarket, 290 AD2d 246, 247 [2002]), and plaintiff has failed to show by admissible evidence that she would have prevailed in holding the casino liable for the security guard’s alleged negligence. In any event, even assuming that the security guard was authorized to speak on behalf of the casino, plaintiff has failed to establish that in failing to have its agent assist plaintiff in climbing to her feet in a nonnegligent manner, the casino breached some common-law duty owed to her. In the final analysis, defendants’ negligence in failing to investigate plaintiff’s case and timely commencing an action does not relieve plaintiff of her burden of proving that she would have prevailed in that litigation but for defendants’ negligence (see Brooks v Lewin, 21 AD3d 731, 734 [2005], lv denied 6 NY3d 713 [2006]; Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 [2002] [“A failure to establish proximate cause requires dismissal regardless of whether negligence is established”]). Concur—Mazzarelli, J.P., Friedman, Nardelli, Gonzalez and Catterson, JJ. Because plaintiffs fall occurred in New Jersey, we note that New Jersey’s tort rules are similar with respect to the requirement of actual or constructive notice (see Nisivoccia v Glass Gardens, Inc., 175 NJ 559, 563, 818 A2d 314, 316 [2003]).

Judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered July 5, 2005, dismissing all claims against third-party defendant De-Con Mechanical Corp., unanimously reversed, on the law, without costs, the judgment vacated, the indemnification claim reinstated, and the matter remanded for further proceedings. This action arose 15 years ago as the result of defendant and third-party plaintiff The Glick Organization’s alleged breach of contract and warranties in defectively constructing The Promenade, a residential housing complex constructed in the mid-1980s on East 76th Street in Manhattan. Three years later, Glick (the developer and general contractor) commenced a third-party action for contractual indemnification against some of its subcontractors, including plumbing subcontractor De-Con Mechanical Corp. In October 2004, Promenade and Glick entered into an agreement settling the main action. The settlement agreement provided, inter alia, that Glick pay Promenade $1.8 million and assign Promenade its claim for contractual indemnification against De-Con for a total settlement value of just over $2.84 million, or approximately 60% of Promenade’s $4.7 million claim against Glick. In response, De-Con moved for summary judgment dismissing Glick’s claims against it, and in February 2005, the motion court granted De-Con’s motion. Promenade’s assertion that De-Con lacked standing to challenge the legality of the assignment is unpreserved, having been raised for the first time on this appeal, and in any event lacks merit, since De-Con was an interested party in such determination. However, De-Con failed to establish its entitlement to summary judgment defeating the assignment. De-Con’s contention that Promenade was seeking an alleged double recovery for its damages resulting from De-Con’s defective plumbing work must fail because it ignores several facts: that the total settlement value represented only about 60% of what Promenade was owed by Glick and covered claims other than for De-Con’s defective plumbing work; that the assign*223ment of Glick’s contractual indemnity claim against De-Con was accepted by Promenade as part of the settlement value in lieu of a larger cash payment; and that the assignment does not convey a right to be indemnified by De-Con for $1.04 million but merely a right to pursue claims for damages up to a maximum value of $1.04 million, subject to proof in court. Hence, Promenade was seeking nothing more than the full value of its negotiated settlement. The contention that the assignment should be nullified as champertous is belied by the fact that Promenade did not accept the assigned claim for the sole purpose of bringing a claim against De-Con either as an investment or to harass or injure it (see Ehrlich v Rebco Ins. Exch., 225 AD2d 75, 77 [1996], lv dismissed 89 NY2d 1029 [1997]), but rather for the sole purpose of pursuing with Glick the full value of its settlement of contractual claims involving the three parties. The contention that CPLR 4545 (c) is applicable is without merit inasmuch as that provision addresses collateral sources of indemnity or other recovery in tort actions, not in a contractual action as before us here. Also inapplicable, for similar reasons, is General Obligations Law § 15-108, which expressly applies to releases and the right to contribution among tortfeasors, and not the contractual indemnification at issue here. Finally, we reject De-Con’s contention that Glick’s alleged conduct as a voluntary settlor precludes any subsequent liability of De-Con for indemnification. As a part of the monetary value of its settlement with Promenade, Glick apportioned $1.04 million as its own share of liability for the plumbing damages, and assigned to Promenade its right to prove and recover plumbing damages caused by De-Con’s performance up to that amount. Thus, Glick was not a voluntary settlor (see Midura v 740 Corp., LLC, 31 AD3d 401 [2006]), but was merely satisfying its own liability to Promenade for the defective plumbing work. Concur— Tom, J.R, Mazzarelli, Williams, Buckley and McGuire, JJ.

*224Order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered March 29, 2006, which affirmed a judgment of Civil Court (Small Claims Part), New York County (Barbara Jaffe, J.), entered on or about September 7, 2004, after a nonjury trial, awarding plaintiff the principal sum of $5,000, unanimously affirmed, with costs. This action against a health insurer to recover medical expenses requires an interpretation of apparently conflicting provisions of a nine-year-old legislative enactment (L 1998, ch 586). Insurance Law § 4914 (b) (4) (A) (iv) provides that the determination of an external appeal agent shall “be binding on the plan and the insured,” while clause (v) provides that the external review agent’s determination shall “be admissible in any court proceeding.” Statutory terms related to the same subject matter must be construed together so as to make a coherent whole (McKinney’s Cons Laws of NY, Book 1, Statutes § 97), reconciling the apparently conflicting provisions in a manner most consistent with the overall legislative intent (Statutes § 98; Levine v Bornstein, 4 NY2d 241, 244 [1958]). These two clauses were harmonized in Nenno v Blue Cross & Blue Shield of W.N.Y. (303 AD2d 930, 932 [2003]) and Matter of Vellios v IPRO (1 Misc 3d 468 [2003]) by construing clause (iv) not as a bar to judicial review but as marking the end of the administrative review process. The legislative history (see Senate Mem in Support and Governor’s Mem approving L 1998, ch 586, 1998 McKinney’s Session Laws of NY, at 1977 and 1480, respectively) expressed concern that coverage disputes were being decided by the courts, a costly process for both consumers and insurers. The primary purpose of this external appeal law was to create a new layer of independent and impartial administrative review, which did not previously exist, and which would provide consumers with a low-cost, expedited review option in addition to the courts (cf. Insurance Law § 4907 [rights and remedies conferred in this article are cumulative and in addition to, not in lieu of, any other rights and remedies available under law]; see Nenno, 303 AD2d at 932). Defendant’s argument that the external review determination precludes an insured from seeking redress in the courts is without merit and flies in the face of both the statutory scheme and the legislative intent of these provisions. Defendant’s interpretation provides no mechanism for review of either erroneous or arbitrary determinations by external review agents, a result that is not only inconsistent with the purpose of these statutory provisions, but would be detrimental to both insureds and insurers. *225Turning to the merits, plaintiff seeks reimbursement for a bilateral mastectomy performed on his 17-year-old son, who was suffering from a condition known as gynecomastia, or enlarged breasts. The burden is on the insured to show that a policy was in force at the time a claim arose (Moneta Dev. Corp. v Generali Ins. Co. of Trieste & Venice, 212 AD2d 428, 429 [1995]), and on the insurer to show that the claim is excluded from coverage (Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 652 [1993]). Under the policy in question, medically necessary services are defined, inter alia, as services provided for the direct care or treatment of the condition, disease or injury, not in excess of the care indicated by generally accepted standards of good medical practice, and not furnished primarily for the convenience of the patient, his family or the provider. The policy contains an exclusion for “elective cosmetic surgery or treatment which is primarily intended to improve [the insured’s] appearance.” An exception to this exclusion exists for “reconstructive surgery because of congenital disease or anomaly of a covered child which has resulted in a functional defect.” The term “functional defect” is not defined. As Appellate Term found, the trial court’s determination that plaintiff established a prima facie case with, inter alia, medical evidence provided by the son’s pediatrician and plastic surgeon, describing the son’s gynecomastia as a “deformity” that caused him to suffer emotional distress and depression, inhibiting his “psychosocial development,” was not “clearly erroneous” (Schiffman v Deluxe Caterers of Shelter Rock, 100 AD2d 846, 847 [1984]), and otherwise satisfied the governing substantial justice standard (see Williams v Roper, 269 AD2d 125, 126-127 [2000], lv dismissed 95 NY2d 898 [2000]). Defendant, relying simply on the determination of the external appeal agent that the mastectomy could not be deemed medically necessary absent evidence of “a significant functional problem secondary to the enlarged breasts,” failed to sustain its burden of showing that the exclusion for cosmetic surgery applied. Defendant’s argument that plaintiff’s claim of emotional distress must fail since it is not supported by a mental health professional is particularly disingenuous. The condition suffered by plaintiffs son was characterized by plaintiffs medical providers as a “deformity” and, particularly in the case of a 17-year-old male, clearly a devastating condition with “psychosocial” consequences. It is absurd to deny coverage on the grounds that plaintiff’s son did not provide support from a mental health professional, particularly where the external review decision itself acknowledges that the patient suffers “depression” and “emotional distress” from this condition. *226We have considered defendant’s other arguments and find them unavailing. Concur—Saxe, J.P., Friedman, Marlow, Buckley and Sweeny, JJ.

*227Judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered April 19, 2006, which dismissed the petition brought pursuant to CPLR article 78 to annul the determinations of respondent Division of Housing and Community Renewal (DHCR) revoking the order deeming petitioner eligible for a maximum base rent (MBR) increase for the 2002-2003 cycle, and recalculating the rent of tenant Amalie Zahler in accordance with such order of revocation, unanimously affirmed, without costs. It was within the broad authority of respondent DHCR to determine whether the proof offered by petitioner bearing upon its purported correction of Code violations was sufficient to demonstrate that it had timely corrected all rent-impairing violations and 80% of all other violations (see Matter of Brusco W. 78th St. Assoc. v State of N.Y. Div. of Hous. & Community Renewal, 281 AD2d 165 [2001]). DHCR’s determination that petitioner’s proof was insufficient was not irrational (see id.). Petitioner relied solely upon the conclusory affidavit of an engineer, from which it was impossible to discern when the violations in question had been corrected. As such, it was impossible to determine whether the violations had been corrected six months before the effective date for the MBR cycle at issue, as is required under the statute and regulations. While petitioner claims that it was DHCR’s “practice” to accept affidavits from engineers that did not specify the dates on which repairs had been made, the governing statute and regulations mandate that an owner certify that violations have been corrected six months prior to the MBR effective date. We also note that an issue had been raised as to the timeliness of the correction of the violations. That DHCR’s MBR Unit may have issued a prior, unreviewed order of eligibility involving the subject building, based on a similar affidavit of the engineer, does not avail petitioner (see Matter of 1000 LLC v Calogero, 16 AD3d 106, 107 [2005]; Matter of 251 W. 98th St. Owners v New York State Div. of Hous. & Community Renewal, 276 AD2d 265 [2000]). Petitioner’s contention that it did not have an adequate opportunity to submit evidence is without support in the record. Finally, petitioner was not deprived of due process because Zahler’s petition for administrative review (PAR) was granted in part based on revocation of the order of eligibility for the 2002-2003 MBR. The logical consequence of the revocation was *228that rent would need to be recalculated for all rent-controlled tenants of the subject building. Petitioner was already on notice, by virtue of revocation of the order of eligibility, that it would need to refund excess rents. Due process did not require that it be separately notified that Zahler’s rent was to be recalculated in accordance with the order. We have considered petitioner’s remaining arguments and find them unavailing. Concur—Andrias, J.E, Friedman, Marlow, Williams and Catterson, JJ.

Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered October 29, 2004, convicting defendant, after a nonjury trial, of two counts of repeated failure to file personal income and earnings taxes in violation of Tax Law § 1802 (a), and sentencing him to a term of five years’ probation with restitution in the amount of $7,447 and community service, and judgment of resentence, same court and Justice, rendered March 17, 2006, convicting defendant, upon his plea of guilty, of violation of probation, resentencing him to a term of six months, unanimously affirmed. The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence established that defendant failed to pay income taxes and file returns for the years charged and that he owed money for each of those years. Defendant clearly evinced the requisite intent to evade payment of tax. His own testimony established that his purpose, or conscious objective (see Penal Law § 15.05 [1]), was to not pay taxes. The record contradicts his claim that he honestly believed himself to be exempt from taxation (see People v Antoine, 298 AD2d 306 [2002]). Defendant filed several documents including withholding forms that he knew to be false, and his testimony warranted an inference that he did not take seriously his various bizarre theories concerning tax laws. While defendant may disagree with existing tax laws, or with their generally accepted interpretations, there was no evidence that he honestly misunderstood his duties under those laws as they currently stand (see Cheek v United States, 498 US 192, 202 n 8 [1991]). Concur—Andrias, J.P, Friedman, Marlow, Williams and Catterson, JJ.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered April 12, 2005, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to a term of 4 to 8 years, unanimously affirmed. The court properly denied defendant’s suppression motion. There is no basis for disturbing the court’s credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). The police received a detailed anonymous tip that a person who precisely matched defendant’s description was selling drugs at a particular location, and they also spoke to a security guard at the scene, who stated that he had observed defendant exchanging objects for money. This was more than sufficient to support the hearing court’s finding that the police had, at the very least, a founded suspicion of criminality, and were thus authorized to exercise their common-law right of inquiry (see People v Moore, 6 NY3d 496, 498 [2006]). The officers merely asked defendant to stop, which, standing alone, did not constitute a seizure (see People v Bora, 83 NY2d 531, 535-536 [1994]), and they did not go beyond the bounds of a common-law inquiry, which permits the police to ask whether the person being questioned is willing to consent to a search (see People v Hollman, 79 NY2d 181, 191-192 [1992]). The Feople established by clear and convincing evidence that defendant voluntarily consented to the search (see generally People v Gonzalez, 39 NY2d 122, 128-131 [1976]). We have considered and rejected defendant’s remaining arguments. Concur—Andrias, J.E, Friedman, Marlow, Williams and Catterson, JJ.

In 1954, in the Supreme Court, Kings County, plaintiff, Muriel Cohen, obtained a judgment of separation against defendant. She was awarded custody of the two infant children of the parties, $25 a week alimony for herself, and $100 a week for the support of the children. By order of said court, dated October 18, 1956, the amount awarded for the support of the children was increased to $200 a week. On January 9, 1957, by a separation agreement between the parties, said support was reduced to $100 a week, with provision for a further payment of $25 weekly toward a trust fund for the college education of the two children. On January 15, 1957, a final decree of divorce became effective in an action instituted by plaintiff in Mexico, in which she appeared in person and in which defendant appeared by attorney. Neither party questions the validity of the divorce. The divorce decree incorporates by reference the separation agreement of January 9, 1957. There is no default under this agreement. On January 25, 1957, an order was entered in the Supreme Court, Kings County, on stipulation of the parties, vacating and setting aside the 1954 judgment of separation. Each of the parties has remarried, and each has issue of the remarriage. By an order to show cause dated April 26, 1960, served by mail upon defendant’s attorney in the separation action, plaintiff moved in that action: (a) to set aside the said order dated January 25, 1957, and the stipulation upon which it was based, vacating the decree of separation; (b) to confirm the effectiveness of the order dated October 18, 1956, which amended the 1954 judgment of separation so as to increase the amount awarded for support of the two infant children from $100 to $200 a week; (e) to enter a judgment for the arrears of $100 a week from October 18, 1956, to date, in the payment of such support; or, in the alternative (d) to fix at $200 a week the amount to be paid by defendant for the children’s support. Defendant, appearing specially, cross-moved to dismiss plaintiff’s motion for lack of jurisdiction of the person or the subject matter. Plaintiff appeals from the order of the Supreme Court, Kings County, dated June 1, 1960, which: (1) denied her motion without prejudice to an application in the proper forum to review the needs of the infants for future support; and (2) granted defendant’s cross motion to dismiss her motion. Order affirmed, without costs. No opinion. Nolan, P. J., Beldock, Kleinfeld, Pette and Brennan, JJ., concur.

Order and judgment (one paper), Supreme Court, New York County (Joan A. Madden, J), entered on or about September 8, 2005, which, inter alia, denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 to compel respondents to expunge all references to certain charges of misconduct from petitioner’s employment record, unanimously affirmed, without costs. Petitioner, a tenured teacher employed by respondent Department of Education (DOE), seeks to have references to dismissed misconduct charges expunged from the files of the DOE’s Administrative Trial Unit (ATU). He claims that this is required by Education Law § 3020-a (4) (b). However, the DOE is not required to expunge references to dismissed charges from the ATU files, since the files are not “employment records” within the meaning of Education Law § 3020-a (4) (b). Moreover, pursuant to 8 NYCRR Appendix I, the ATU is required to maintain records of dismissed disciplinary proceedings and charges for a minimum of three years after a final decision has been rendered. Since the last disciplinary ruling involving petitioner was rendered on or about May 14, 2003, the ATU was required to retain records pertaining to that ruling until May 14, 2006. Thus, the ATU could not have legally expunged the records from its files in January 2004 when petitioner commenced this article 78 proceeding. Concur—Andrias, J.P, Friedman, Marlow, Williams and Catterson, JJ.

In five negligence actions arising out of the same common accident involving three automobiles (the actions numbered 1, 2, 3 and 4, having been previously consolidated), Frederick Rogers, as plaintiff in Action No. 4, appeals: (1) from an order of the Supreme Court, Westchester County, dated November 20, 1958 (and entered November 24, 1958), denying his motion to *783consolidate Action No. 5 with the presently consolidated Actions Nos. 1, 2, 3 and 4; and (2) from an order of the same court, dated the same day, granting said plaintiff’s motion for reargument of his said motion and, on reargument, adhering to the original decision. Appeal from the first or original order denying the motion, dismissed as academic. Such order has been superseded by the order granting reargument. Order on reargument reversed, without costs, and motion to consolidate Action No. 5 with the presently consolidated Actions Nos. 1, 2, 3 and 4, granted; the trial of the five actions thus consolidated to be had under the Trial Calendar number (11,346) of Action No. 5. Under the circumstances prevailing in November, 1958, when the orders appealed from were made, the denial of the motion was a proper determination. However, in the light of the present status of the five actions, since all of them are now on the calendar awaiting trial, consolidation is preferable, for consolidation may now be effected without prejudice to any party, and it will avoid a multiplicity of trials upon issues common to all the actions. Settle order on consent or on five days’ notice. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.

Order, Supreme Court, New York County (Louis B. York, J.), entered January 4, 2006, which, in an action for legal malpractice, granted defendant Smith’s motion to dismiss the action as against him for failure to state a cause of action, unanimously affirmed, without costs. Order, same court and Justice, entered February 1, 2006, which, insofar as appealed from, granted defendant Mondora’s motion to dismiss, as time-barred, so much of plaintiffs’ claim as is based on his failure to institute suit against Dr. Bernstein, unanimously reversed, on the law, without costs, the motion denied and that portion of plaintiffs claim reinstated. Accepting the facts alleged in the complaint as true and affording plaintiffs the benefit of every possible favorable inference (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the complaint against defendant Smith was properly dismissed since plaintiffs failed to demonstrate that they would have been successful in the underlying proceeding but for Smith’s alleged malpractice (see Davis v Klein, 88 NY2d 1008, 1009-1010 [1996]; Hand v Silberman, 15 AD3d 167 [2005], lv denied 5 NY3d 707 [2005]). The court properly considered Smith’s affidavit since factual allegations presumed to be true on a CPLR 3211 motion may properly be negated by affidavits and documentary evidence (see Wilhelmina Models, Inc. v Fleisher, 19 AD3d 267, 269 [2005]). However, the court erred in dismissing that portion of the cause of action against defendant Mondora alleging that he was negligent for failing to bring suit against Dr. Bernstein since there are sufficient allegations with respect to the application of the continuous representation doctrine (cf. CLP Leasing Co., LP v Nessen, 12 AD3d 226 [2004]). *232In light of the foregoing, we find no basis to impose sanctions against plaintiffs’ counsel. We have considered plaintiffs’ remaining contentions and find them without merit. Concur—Andrias, J.P, Friedman, Marlow, Williams and Catterson, JJ.

In a stockholders’ derivative action: (a) to impress a trust on a sublease to premises occupied by the corporate defendant, which the individual defendants took in their individual names instead of in the name of the corporation; (b) to recover damages for such seizure of an opportunity belonging to the corporation; (c) to recover for the unauthorized and excessive salaries taken by the individual defendants; and (d) for other relief, plaintiffs appeal from the following four orders of the Supreme Court, Westchester County: (1) an order, dated May 17, 1960, insofar as it grants defendants leave to serve an amended answer; (2) an order, dated June 23, 1960, denying plaintiffs’ motion to resettle the first order of May 17, 1960, and directing plaintiffs to accept the amended answer, verified May 11, 1960; (3) an order, dated October 31, 1960, denying plaintiffs’ motion to resettle the second order of June 23, 1960; (4) an order, dated October 31, 1960, denying plaintiffs’ motion to strike out portions of the amended answer pursuant to rules 102, 103 and 109 of the Rules o.f Civil Practice. Order No. 1, insofar as appealed from, affirmed, without costs. Order No. 2 modified by granting plaintiffs’ motion to resettle the first order of May 17, 1960, to the extent of reciting the complaint and reciting the reply affidavit of attorney Schwartz, verified April 20, 1960, as having been read on the motion; as so modified, the said order No. 2 is affirmed, without costs. Order No. 3 modified by granting plaintiffs’ motion to resettle the second order of June 23, 1960, by reciting the affidavit of attorney Hornstein, verified May 24, 1960, in opposition to the motion; as so modified, the said order No. 3 is affirmed, without costs. Order No. 4 modified by granting plaintiffs’ motion to the extent of labeling the first, second and fourth defenses as partial instead of complete defenses; and by labeling the second and fourth defenses as partial defenses to the entire complaint and not merely to certain paragraphs of the complaint. As so modified, the said order No. 4 is affirmed, without costs. The first, second and fourth affirmative defenses are defenses to part of the complaint only and, therefore, should be labeled as partial rather than complete defenses. Furthermore, a defense to certain paragraphs of a complaint only, is unauthorized. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

In Action No. 1 by the wife against the husband for a separation, the husband appeals from an order of the Supreme Court, Westchester County, dated June 22, 1960, denying his motion to dismiss various portions of the complaint pursuant to rule 280 of the Rules of Civil Practice, or in the alternative, to make the complaint more definite and certain pursuant to rule 102 of the Rules of Civil Practice. Order modified by striking out its first decretal provision denying the motion in all respects, and by substituting therefor a provision granting the motion to the extent of dismissing the second and third causes of action of the complaint and denying the motion in other respects. As so modified, order affirmed, without costs. An amended complaint may be served within 20 days after the entry of the order hereon. The second and third causes of action fail to comply with rule 280 of the Rules of Civil Practice. In an action for a separation based upon abandonment, the complaint must state facts sufficient to establish that there was an abandonment which was willful, with the intention on the part of the defendant not to return (Rebstock v. Rebstock, 144 N. Y. S. 289, 296; cf. Williams v. Williams, 130 N. Y. 193, 197); and the complaint must also state the times and places where the acts constituting the abandonment occurred. In an action for a separation based upon nonsupport, the complaint must allege facts showing that the support furnished by the defendant is inadequate (Rizzi v. Rizzi, 279 App. Div. 676); and the complaint should also allege with reasonable certainty the times during which the defendant failed to furnish adequate support. With respect to tlm first cause of action pleaded, we are not prepared to say that it fails to comply with rule 280, since it does allege certain acts of misconduct and the times and places where they occurred. However, if on the trial plaintiff intends to prove specific acts of misconduct in support of the general allegations contained in subdivisions (a), (b), (e), (d), (e) and (f) of paragraph Fifth of her complaint, she should plead said specific acts in accordance with the requirements of rule 280, and if so advised, may do so in her amended complaint. Nolan, P. J., Beldock, Kleinfeld, Pette and Brennan, JJ., concur.

Order, Supreme Court, New York County (Saralee Evans, J.), entered on or about January 24, 2006, which, inter alia, denied plaintiffs postjudgment motion to compel defendant and the parties’ children to vacate the former marital residence within 60 days, unanimously affirmed, with costs. The judgment of divorce, entered March 2000, insofar as pertinent, did not purport to determine child support in accordance with the Child Support Standards Act (CSSA) (Domestic Relations Law § 240 [1-b]). Instead, the judgment gave defendant and the parties’ two children exclusive occupancy of the marital residence, which was plaintiffs separate property, until the younger child’s emancipation, “unless the plaintiff secures acceptable equivalent living accommodations for the defendant and the children in the neighborhood.” Any disputes concerning reasonable equivalence were to be determined by the court. The judgment also provided, “as and for child support,” that plaintiff pay all maintenance charges, assessments, and utilities on the marital apartment. Plaintiff appealed the judgment, but withdrew the portion of the appeal that challenged the award of exclusive occupancy and “child support” (286 AD2d 201, 203 [2001]). Claiming that defendant unreasonably refused an equivalent apartment, plaintiff now seeks to compel defendant and the children to vacate the apartment and have his child support obligation “reset” to account for the children’s increased needs in accordance with the CSSA. But, as the motion court emphasized, he also appears to seek “far more than the replacement of the coop with an equivalent rental unit.” His argument appears to be that while the judgment of divorce requires him to pay for the apartment for as long as defendant and the children live there, it does not require him to pay for the cost of maintaining the equivalent apartment he would have them move into. The practical result of such a proposal would be that *233defendant, who is unemployed and, due to a prenuptial agreement, received no maintenance payments and only a small distributive award, would be unable to maintain any reasonably equivalent apartment. She and the children would have to subsist largely on whatever payments plaintiff would be mandated to make under the CSSA. Plaintiff may be entitled to the apartment should he find a reasonable equivalent, but not on these terms (cf. Graziano v Graziano, 285 AD2d 488, 489 [2001], lv dismissed 97 NY2d 725 [2002]). Concerning plaintiff’s challenge to the court’s refusal to permit him to retrieve his furnishings and other personal property remaining in the apartment, this issue was previously considered in an unappealed prior order, and we decline to review it. Concur—Andrias, J.E, Friedman, Marlow, Williams and Catterson, JJ.

In an action against a Sheriff by his former deputy to recover moneys which it is alleged defendant wrongfully and illegally compelled plaintiff to pay to defendant, said defendant appeals from an order of the County Court, Orange County, dated August 2, 1960, which denied his motion to strike out plaintiff’s complaint and to dismiss the action and for entry of judgment accordingly, by reason of plaintiff’s willful refusal to answer questions put to him in the course of his examination before trial. Order reversed on the law, without costs, and matter remitted to the County Court, Orange County, for further proceedings not inconsistent herewith. The plaintiff appeared for an examination before trial conducted by defendant pursuant to a notice of examination, and not directed by court *785order. At the hearing, plaintiff declined to answer material questions, asserting his constitutional privilege against self-incrimination. Thereupon defendant moved to strike out plaintiff’s complaint and to dismiss the action because of plaintiff’s refusal to answer. The learned County Judge denied the motion on the ground that the court had neither statutory nor inherent power to grant it. In our opinion, although the court had no statutory power to grant the relief which defendant applied for, it had inherent power to do so (cf. Levine v. Bornstein, 13 Misc 2d 161, affd. 7 A D 2d 995, affd. 6 N Y 2d 892). Whether or not the relief should be granted, however, and the conditions under which it should be granted, are questions which should be decided by the County Court, in the exercise of a sound discretion and on consideration of the interests of justice. Beldock, Ughetta and Christ, JJ., concur; Nolan, P. J., concurs in the result, with the following memorandum: Although I adhere to my views heretofore expressed that, under the circumstances here disclosed, the court has no statutory or inherent power to strike out plaintiff’s complaint, I am constrained to concur by reason of our prior determination (Levine v. Bornstein, 7 A D 2d 995). Kleinfeld, J., concurs with Nolan, P. J. [25 Misc 2d 1001.]

Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered October 16, 2003, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him, as a second felony offender, to a term of 17 years; and judgments, same court (Troy K. Webber, J.), rendered April 6, 2004, convicting defendant, upon his pleas of guilty, of attempted robbery in the first degree and attempted assault in the first degree, and sentencing him, as a second felony offender, to concurrent terms of six years, unanimously affirmed. The court properly denied defendant’s motion to suppress the *234assault victim’s lineup and in-court identifications. The lineup was not the fruit of an unlawful arrest. Regardless of the circumstances of defendant’s initial arrest, which were inadequately developed at the hearing, the hearing evidence clearly established that, at least at the time of the lineup (see People v Garcia, 281 AD2d 234 [2001], lv denied 96 NY2d 862 [2001]), the basis of defendant’s detention was the fact that he had previously been identified, by means of two photo arrays, as the perpetrator of the assault at issue on this appeal as well as a separate robbery. The circumstantial evidence presented at the hearing (see e.g. People v Gonzalez, 91 NY2d 909 [1998]) established the requisite transfer of information between the detectives who obtained the two photographic identifications and the successor detectives to whom the cases were reassigned, including the detective who conducted the lineup at issue. The court properly found that the victim’s lineup and in-court identifications of defendant as the person who assaulted him were admissible notwithstanding the court’s finding that the prior photo identification procedure unduly highlighted defendant. The evidence before the hearing court, which included testimony that 4V2 months passed between the two identification procedures and that the victim had told the police that he had repeatedly seen his assailant at a neighborhood location, was sufficient to warrant the conclusion that the photo array could not have influenced the lineup identification (see People v Manuel, 304 AD2d 428 [2003], lv denied 100 NY2d 596 [2003]; People v Reynoso, 182 AD2d 546 [1992], lv denied 80 NY2d 836 [1992]). At trial, the court properly permitted the victim, who had often seen his assailant in front of a certain corner grocery store, to testify that he gave the police defendant’s name after a nontestifying declarant told the victim the name of the person who frequented that location. This was not hearsay, because such evidence was not introduced for its truth, but “for the legitimate, nonhearsay purpose of completing the narrative of events and explaining police actions” (People v Guerrero, 22 AD3d 266, 266 [2005], lv denied 5 NY3d 882 [2005] [citations omitted]). There was never any suggestion to the jury that the nontestifying declarant knew anything about the assault or had incriminated defendant. Furthermore, the court provided thorough limiting instructions. Defendant’s Confrontation Clause argument is unpreserved and without merit. The court properly exercised its discretion in denying defendant’s mistrial motion based on certain portions of the People’s summation, since the court’s curative actions were suf*235ficient to prevent the remarks in question from causing any prejudice (see People v Santiago, 52 NY2d 865 [1981]). Defendant’s remaining summation claims are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find no basis for reversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). Concur—Tom, J.P, Mazzarelli, Sullivan, Nardelli and Buckley, JJ.

In a proceeding pursuant to article 84, sections 1450, 1451 of the Civil Practice Act, to compel arbitration and to stay prosecution of a pending action between the parties, the petitioner appeals from an order of the Supreme Court, Westchester County, dated July 29, 1960, denying the petition on the ground that “ as matter of law * * " no agreement of arbitration had been entered into” between the parties. Order reversed, with costs, and matter remitted to Special Term for trial of the issues of fact as to the making of the agreement to arbitrate, and for further proceedings not inconsistent herewith. On October 14, 1959, petitioner, as general contractor and respondent, as the excavation subcontractor, orally agreed that respondent would do certain work for $27,300. On October 15, 1959, respondent sent petitioner a revised estimate in that sum. On October 27, 1959, petitioner confirmed the agreement of October 14 awarding the contract to respondent, stated that the purchase order covering the work would be mailed shortly, and directed respondent to proceed with the work. On November 5,1959, respondent received petitioner’s purchase order, which contained a provision for arbitration. On November 16, 1959, respondent wrote to petitioner describing the letter of October 27, not as a confirmation of the oral agreement awarding the contract, but as a letter of intent to award the contract at a future date, and demanding payment pursuant to the purchase order. A dispute having arisen, petitioner demanded arbitration. Respondent rejected such demand and thereafter instituted an action to foreclose a mechanic’s lien filed by it. In our opinion, this record presents issues of fact as to: (1) whether the contract of October 14, 1959 was complete as respondent contends, or was provisional as petitioner contends; and (2) if the terms of the agreement were not finally fixed on October 14,1959, whether the terms of the purchase order were accepted by respondent. Such issues should be resolved by trial, and not by affidavits (Civ. Prac. Act, § 1450). Nolan, P. J., Beldock and Kleinfeld, JJ., concur; Ughetta and Christ, JJ., dissent and vote to affirm, with the following memorandum: No arbitration clause was included in the agreement between the parties. The letter of October 27, 1959, signed by the petitioner, confirmed that the agreement was made as of October 14 and it directed the respondent to proceed with all speed in the work. This he did. Not until November 5, 1959, when respondent received the purchase order dated October 22, 1959, was the subject of an arbitration clause introduced. Then for the first time, as a *786printed part of such order, did it appear that the petitioner sought to include the general conditions of the A. I. A. (American Institute of Architects) form of contract which contains an arbitration provision. By then the agreement had already been made, and in reliance upon it the respondent had gone to work.

In this arbitration proceeding, a judgment upon an award of arbitrators was entered in 1954, in the Supreme Court, Kings County, directing that the partnership of the parties (Samuel, Morris and Benjamin Martz) be dissolved, and appointing one, Morris Horowitz, to supervise the liquidation of the partnership and to render a final account of the liquidation, subject to the right of appellant, Morris L. Martz, to procure a reaudit of the account. Thereafter, Horowitz rendered three successive accounts, two in 1954 and one on October 22, 1958. In the interim, on March 26,1958, the petitioner, Samuel Martz, died. Then, on November 8, 1959, Horowitz also died. The present appeal is by Morris L. *787Martz from an order of said court, dated June 1, 1960, denying his motion for appointment of a successor to Horowitz and for substitution of the executors of petitioner’s (Samuel Martz’) estate as parties in place of petitioner. Said executors appeared in opposition to the motion, and they appear as respondents on this appeal. Order reversed, with $10 costs and disbursements, and matter remitted to Special Term for proceedings consistent with the views herein set forth. It expressly appears from the account of October 22,1958, that furniture, fixtures and machinery of unknown value still remained undisposed of as of that date. It is undisputed that it was not until some time after said date that some of those assets were divided; that agreement was reached as to the amounts of charges and credits to be made amongst the parties by reason of such division; and that other such assets, described as “junk” (in the affidavit of respondent Benjamin Martz) but nevertheless the subject of possible sale, have never been disposed of or accounted for. It is also undisputed that after said accounting date, certain spools were sold; and it has not been shown that the proceeds of such sale have been accounted for. It further appears: (a) that respondent Benjamin Martz himself claims that a certain charge for goods sold and delivered to appellant, Morris L. Martz, should be made against the latter in supplementation of the said 1958 accounting; and (b) that other claims of appellant (to some of which the petitioner had acquiesced) still remain unresolved and are being resisted by respondent Benjamin Martz and the executors of the petitioner’s estate. All of the foregoing are matters which are part of the liquidation of the partnership in pursuance of the award and judgment. They establish conclusively that the contemplated liquidation has not been concluded and that the 1958 account was not a final account. Hence, a substitute for Horowitz should be appointed. Such a substitution would not be a substantive change of the award and judgment. It would be an exercise of the court’s power to carry the judgment into effect (see Matter of Ungrich, 201 N. Y. 415, 418). Since the judgment has not been fully carried out, the proceeding must be regarded as still pending. Therefore the executors of petitioner’s estate should be brought in as parties in place of the petitioner (Civ. Prac. Act, § 84). Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

In two consolidated proceedings under article 78 of the Civil Practice Act, to review determinations by respondent Commissioner of Building and respondent Zoning Board of Appeals of the City of White Plains, which in substance approved, under stated conditions, the construction of an addition to the residence of respondents Evans, the petitioner appeals from an order of the Supreme Court, Westchester County, dated June 28, 1960, dismissing both proceedings on the merits. Order affirmed, with one bill of costs. The building addition, containing several rooms, was designed for use by respondent Alvin Evans as an office for the practice of his profession as a doctor of veterinary medicine. The Zoning Ordinance of the City of White Plains permits, as an accessory use, a “ Professional office * * * in principal building” restricted to residence use. Respondent Zoning Board of Appeals found, in effect, that the alteration made as directed by it, would constitute an integral unit with the principal building, which would consist of the residence and a professional office therein. That finding, supported by substantial evidence, was not arbitrary or capricious and may not be disturbed by the court (cf. Matter of Reed v. Board of Standards & Appeals, 255 N. Y. 126, 136; People ex rel. Hudson-Harlem Valley Title & Mtge. Co. v. Walker, 282 N. Y. 400, 405). It is conceded that the practice of veterinary medicine is a profession and we find nothing in the zoning ordinance which prohibits the practice of that profession in an office in the doctor’s residence. If a veterinary hospital is established on the premises, in violation of the zoning ordinance, petitioner will not be without remedy. Nolan, P. J., Beldock, Ughetta, Christ and Pette, JJ., concur.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 3, 2005, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and *236sentencing him to concurrent terms of six years, unanimously affirmed. The verdict was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning identification and credibility (see People v Bleakley, 69 NY2d 490 [1987]). The victim’s identification testimony was extensively corroborated by circumstantial evidence. The court’s Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court properly permitted limited inquiry into a prior robbery, whose underlying facts differed significantly from the instant robbery, since the prior incident was indicative of defendant’s willingness to place his interests above those of society, and its probative value on the issue of credibility outweighed its prejudicial effect (see e.g. People v White, 297 AD2d 258 [2002], lv denied 98 NY2d 772 [2002]). The court also properly exercised its discretion in denying defendant’s mistrial motion, made after the People attempted to go beyond the court’s ruling, since the court sustained defendant’s objections and the offending questions were never answered. The jury is presumed to have followed the court’s instructions that questions are not evidence (see People v Fray, 306 AD2d 188 [2003], lv denied 100 NY2d 620 [2003]). The court properly precluded defendant’s uncle from testifying that, in the month preceding the robbery, defendant generally came directly home every evening after work and remained there. This was not admissible as habit evidence, because there was no showing of such a repetitive pattern as to be predictive of defendant’s conduct (see Prince, Richardson on Evidence § 4-601, at 197-198 [Farrell 11th ed]; Halloran v Virginia Chems., 41 NY2d 386, 389 [1977]). In the circumstances presented, the proffered testimony concerning defendant’s usual behavior during the period in question had no probative value with regard to whether he may have behaved differently on a particular night. The uncle was not an alibi witness, since he had no recollection of defendant’s whereabouts on the night of the crime. Defendant’s related claims regarding the prosecutor’s summation, and all of his constitutional arguments concerning the exclusion of the proffered habit evidence, are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Defendant’s ineffective assistance of counsel argument is without merit. Concur—Tom, J.P, Mazzarelli, Sullivan, Nardelli and Buckley, JJ.

In a controversy submitted on -an agreed statement of facts pursuant to section 546 of the Civil Practice Act, the question presented is whether a tax sale of real property, which is assessed by lot numbers on a filed map showing subdivided lots and streets, carries with it title to the center of the street in front *789of the lots. Prior to January 5, 1914, the Pennsylvania Improvement Company owned a tract of land in the Town of Southhampton, Suffolk County. On that date it filed a map in the office of the Clerk of Suffolk County entitled “Map of Estates of Quogue, Section 8”. The property was subdivided into blocks, lots and streets. After such filing, the town assessors discontinued assessing the mapped land as one parcel and assessed the subdivided lots as lots on the filed map. The streets on the map were not separately assessed. On July 16, 1914, one Joseph Napoleon Soy, recorded a deed to him of 3 lots in -block 6 from the Pennsylvania Company. It contained no reservation of title to land in the street. There is no record in the County Clerk’s office of any deed to those lots from Roy. Nor is there any record of any deed to the other lots in blocks 5 and 6 from the Pennsylvania Company. For the tax year 1947—48, all the lots in blocks 5 and 6 were assessed. The taxes thereon were not paid; and in November, 1948, the lots were sold, as lots on the map, by the Suffolk County Treasurer to Suffolk County. On October 10,1951, after time to redeem had expired, the Suffolk County Treasurer by deed (recorded on December 12, 1951) conveyed the lots, as lots on the map, to Suffolk County. On October 3, 1957, by a quitclaim deed (recorded October 4, 1957), Suffolk County conveyed the lots, as lots on the map, to plaintiff. On April 7, 1958, pursuant to subdivision 3 of section 335 of the Real Property Law, plaintiff filed a certificate of abandonment of the streets on the map other than Pennsylvania Avenue and Harriman Street. On August 28, 1959, plaintiff entered into a contract to sell the land to defendant. At the closing defendant was ready, able and willing to consummate the sale but he refused, claiming that the title was unmarketable because plaintiff had no title to the land in the streets in blocks 5 and 6. The controversy in question is whether the assessment and tax sale included the lots to the middle of the streets in front of the lots. In our opinion the answer is in the affirmative and the title is marketable. In Kent’s Commentaries, 433, (14th ed., p. 670), the author states: “The idea of an intention in the grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land, is never to be presumed.” The above rule has been applied in Bissell v. New York Cent. R. R. Co. (23 N. Y. 61); Matter of Ladue (118 N. Y. 213); Fiebelkorn v. Rogacki (280 App. Div. 20, affd. 305 N. Y. 725); Gottfried v. State of New York (23 Misc 2d 733). The subsequent filing of a certificate of abandonment of the streets on the map, pursuant to subdivision 3 of section 335 of the Real Property Law, was valid and effective and restored the lots and streets to their former status as “ described land ” in view of the fact that the streets never became a public highway by implied or actual acceptance, were never used and were never opened to the public. Aecordingly, judgment upon the submission is rendered in favor of plaintiff, without costs. Settle judgment on consent or on ten days’ notice. Beldoek, Acting P. J., Ughetta, ICIeinfeld, Christ and Pette, JJ., concur.

Judgment, Supreme Court, New York County (Howard R. Silver, J.), entered March 20, 2006, dismissing the complaint as against defendant Montefiore Medical Center upon a prior grant of summary judgment, and noting discontinuance of the action as against defendant Robbins, unanimously affirmed, without costs. Plaintiffs failed to raise a triable issue of fact as to whether the hospital deviated from accepted medical practice when it failed to designate the decedent a “fall risk” upon her admission. Their reliance on the opinion of a registered nurse as to the hospital’s alleged malpractice in not having ordered the decedent’s bed rails to be left in the raised position was insufficient (see Elliot v Long Is. Home, Ltd., 12 AD3d 481 [2004]; Mills v Moriarty, 302 AD2d 436 [2003], lv denied 100 NY2d 502 [2003]), and, in any event, the nurse’s affidavit failed to specify any evidence in the record to support her conclusion that the decedent was a “fall risk” under the hospital’s applicable care and treatment policy. Not only was there a lack of a triable factual issue as to malpractice on the hospital’s part, but there was no evidence to support plaintiffs’ argument that an issue of fact existed as to whether the decedent’s fall contributed to the cause of her *238death. The autopsy report refuted this contention, showing that decedent’s death was due to hypertensive and cardiovascular disease. Moreover, plaintiffs’ medical expert offered only conclusory assertions of causation (see e.g. Candía v Estepan, 289 AD2d 38 [2001]), which were founded on mischaracterizations of the evidence. Notably, plaintiffs’ expert offered no medical explanation as to how the head trauma purportedly contributed to the decedent’s death, and he made no reference to the contradictory findings in the autopsy report. We have considered appellant’s remaining arguments and find them unavailing. Concur—Tom, J.E, Mazzarelli, Sullivan, Nardelli and Buckley, JJ.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered January 27, 2006, which denied petitioner’s application to file a late notice of claim, unanimously affirmed, without costs. Fetitioner failed to establish that respondent had timely notice of the essential facts of his claim; neither the newspaper article nor the fire marshal’s report mentioned that he had suffered injuries while trying to climb a fence (see e.g. Matter of Morris v County of Suffolk, 88 AD2d 956 [1982], affd 58 NY2d 767 [1982]). While respondent received another individual’s notice of claim within 90 days of the fire, the connection between the safety violations mentioned therein (e.g., defective electrical wiring) and petitioner’s injuries (caused by falling from a fence) is too remote (see Heyer v City of New York, 176 AD2d 550 *239[1991]). Moreover, respondent would be prejudiced by the one-year delay between the date of petitioner’s injury and the date on which he moved for leave to file a late notice of claim (see e.g. Matter of Rivera v New York City Hous. Auth., 25 AD3d 450, 451 [2006]; Matter of Vargas v New York City Hous. Auth., 232 AD2d 263 [1996], lv denied 89 NY2d 817 [1997]). Concur—Tom, J.E, Mazzarelli, Sullivan, Nardelli and Buckley, JJ.

In an action against an attorney for an accounting and incidental relief, in which defendant has interposed a counterclaim for an accounting, plaintiff appeals from an order of the Supreme Court, Kings County, dated July 21, 1960, which denied his motion for summary judgment and conditionally granted defendant’s cross motion to preclude the plaintiff from offering evidence upon the trial as to the matters alleged in the complaint, by reason of plaintiff’s failure to furnish a bill of particulars pursuant to a demand. Order modified: (1) by striking out its first decretal paragraph denying plaintiff’s motion for summary judgment; (2) by substituting therefor a provision granting such motion to the extent of directing summary judgment in favor of plaintiff for an accounting only; (3) by striking out the second decretal paragraph granting defendant’s cross motion to preclude; and (4) by substituting therefor a provision denying such motion. As so modified, order affirmed, with $10 costs and disbursements to appellant. Where an attorney collects money and retains it, he is bound to render an account thereof to the client when called upon to do so (Matter of Ernst, 54 App. Div. 363). In advance of such account, the client is not required to furnish a bill of particulars (Moore v. Reinhardt, 132 App. Div. 707). Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

In an action by a purchaser for the specific performance of a contract, in the form of a written memorandum, for the sale of real estate, the defendant seller appeals from an order of the Supreme Court, Kings County, dated February 26, 1960, denying Ms motion, pursuant to rule 113 of the Rules of Civil Practice, for summary judgment dismissing the complaint by reason of the patent insufficiency of the memorandum under the Statute of Frauds. In his brief on this appeal the seller renews the tender made in his answer to return to the purchaser the $400 which he paid as a deposit on the signing of the contract or memorandum. Order affirmed, without costs, unless: (a) within 20 days after the entry of the order hereon, the seller, in accordance with his tender, shall pay to the purchaser the sum of $400 as the return of his deposit; or, in the event of the purchaser’s refusal to accept such return, the seller shall pay said sum into court by depositing it with the Clerk of the court in which this action is pending; such money to be paid into court, to be held and to be paid out pursuant to statute (Civ. Prac. Act, §§ 133-137); and (b) within such 20-day period, the seller’s attorney shall file with said Clerk an affidavit certifying that the said payment has been made in accordance with this decision and specifying the date of the payment and the person to whom it was made. "Upon the filing of such affidavit, the order is reversed, without costs, and the defendant seller’s motion for summary judgment dismissing the complaint is granted. In our opinion, the memorandum sought to be enforced as the contract is incomplete and unenforeible because it does not state the duration of the proposed purchase-money mortgage or the amount of the installment payments of principal. Nolis this a ease where the law can imply that the parties intended it to be due on demand, since the provision in the memorandum for installment payments, and plaintiff’s statement, in his affidavit, that the parties intended “the usual and ordinary mortgage terms”, negate any such implication (see Real Property Law, § 259; Spielvogel v. Veit, 197 App. Div. 804; Pollak v. Dapper, 219 App. Div. 455, affd. 245 N. Y. 628; Lerner v. Lawrence, 104 N. Y. S. 2d 723; Keystone Hardware Corp. v. Tague, 246 N. Y. 79). Nolan, P. J., Kleinfeld, Christ and Brennan, JJ., concur; Pette, J., dissents and votes for the unconditional affirmance of the order, with the following memorandum: In my opinion, summary judgment dismissing the complaint was properly denied here. The contract on its face satisfies the Statute of Frauds, despite its silence as to the mortgage maturity date and the mortgage interest rate. In the absence of such recital the law presumes that the mortgage is to be payable on demand at the legal interest rate (Weintraub v. Kruse, 234 N. Y. 575; Wertheimer v. Boehm, 241 N. Y. 575), unless the contract itself contains a provision which rebuts the presumption by disclosing an intent to agree subsequently on a specific maturity date or a different interest rate (Keystone Hardware Corp. v. Tague, 246 N. Y. 79, 84, supra). The contract here contains no such provision nullifying the legal presumption. Its ambiguous provision for amortization, namely: “ There will be a mort. balance of $18,000 to be paid either quarterly or monthly as so desired ”, does not rebut the presumption of an open or demand mortgage. Such a provision does not, as a matter of course, import a fixed mortgage maturity date to be determined later by the parties. There is nothing necessarily or inherently inconsistent between a demand loan and amortization payments. In any event, whatever the inconsistency or ambiguity may be, it does not warrant the dismissal of the complaint, on motion, upon ,the ground that the contract on its face fails to satisfy the Statute of Frauds; .,a plenary trial must be had. *791“ Neither the parol evidence rule nor the Statute of Frauds forbids proof [upon the trial] of the actual agreement between the parties in order to resolve an ambiguity” (Balkum v. Marino, 299 N. Y. 590, modfg. 274 App. Div. 903; cf. MacLaeon v. Lipchitz, 56 N. Y. S. 2d 609, affd. 269 App. Div. 953). To justify its conclusion that the legal presumption has been rebutted, the majority relies on the plaintiff purchaser’s statement (in his affidavit) that the parties intended “ the usual and ordinary mortgage terms ”. In my opinion, for the reasons previously mentioned that statement does not necessarily have any such effect (cf. 1130 President St. Corp. v. Bolton Realty Corp., 300 N. Y. 63, revg. 275 App. Div. 402; see dissenting opinion, Van Voorhis, J., 275 App. Div. 402, 405-411). Moreover, the “usual and ordinary mortgage terms” are referable to the usual and ordinary terms found in mortgages and to their statutory interpretation (cf. Real Property Law, §§ 254, 258), and not to the mortgage maturity date. In any event, on a motion to dismiss the complaint because of the failure of the writing sued upon to comply with the Statute of Frauds, its sufficiency must be decided as matter of law from its face; on such a motion it is error to consider any extraneous proof either to create or to cure a claimed defect in the writing under the Statute of Frauds; such proof is usually reserved for the trial (N. E. D. Holding Co. v. McKinley, 246 N. Y. 40, revg. 219 App. Div. 738; Mandel v. Guardian Holding Co., 200 App. Div. 767, affd. 234 N. Y. 564; Balkum v. Marino, 299 N. Y. 590, supra; cf. 1130 President St. Corp. V. Bolton Realty Corp., 300 N. Y. 63, supra).

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 22, 2005, which, to the extent appealed from as limited by the briefs, denied defendant’s motion for renewal of its prior motion for summary judgment, and sua sponte declared defendant obligated to defend plaintiff in an underlying personal injury action as an additional insured under the subject policy and to reimburse plaintiff for litigation expenses, including reasonable attorneys’ fees, affirmed, without costs. The stipulation discontinuing the underlying personal injury claims against defendant’s primary insured is not dispositive of defendant’s duty to defend plaintiff as an additional insured under the policy. “[T]he duty of an insurer to defend is broader than its duty to indemnify” (Agoado Realty Corp. v United Intl. Ins. Co., 95 NY2d 141, 145 [2000]). While the stipulation upon which defendant relies precludes any further claim by the underlying plaintiffs against the insured contractor, it does not by its terms preclude a claim that plaintiff failed to properly inspect or supervise the work of the insured contractor. Nor does the stipulation or any other documentation submitted by defendant establish as a conceded or uncontested fact that the accident was unrelated to the contractor’s work. Accordingly, defendant failed to establish a right to the relief it sought. Based upon the submissions to the IAS court, the declaration that defendant is obligated to defend plaintiff in the underlying personal injury action was proper. Concur—Andrias, J.E, Saxe, Williams and Sweeny, JJ.

McGuire, J., concurs in a separate memorandum as follows: I *240agree that the order appealed from should be affirmed but write separately to underscore that this appeal resolves only a narrow issue. Defendant insurer Zurich’s sole argument on appeal is that the stipulation discontinuing with prejudice the underlying personal injury claims against its named insured, American Bridge Company, precludes any finding in the underlying action that plaintiff City’s liability arose out of either American Bridge’s work for the City or the City’s supervision of that work. The City is an additional insured under the policy Zurich issued to American Bridge but only with respect to liability that so arises. Accordingly, maintaining that such a liability finding no longer can be made in the underlying action, by virtue of the stipulation, Zurich argues there can no longer be an indemnity obligation to the City under the policy. Thus, the issue that recently has divided this Court, whether a finding of liability in accordance with the terms of the additional insured endorsement in the underlying action is a condition precedent to the triggering of additional insured coverage (see BP A.C. Corp. v One Beacon Ins. Group, 33 AD3d 116, 132 [2006, Sullivan, J., dissenting], lv granted 2006 NY Slip Op 82372[U] [2006]; Chelsea Assoc., LLC v Laquila-Pinnacle, 21 AD3d 739, 741 [2005, Sullivan, J., dissenting], lv denied 6 NY3d 742 [2005]), is not before us. As the City stresses, its answer in the underlying action asserted a cross claim for contribution and indemnification against American Bridge alleging that American Bridge was liable to the City if the City was liable to the plaintiffs. I agree that the stipulation of discontinuance does not bar either the plaintiffs direct claim against the City or the continued prosecution of the cross claim. In this regard, I note that Zurich does not raise any issue concerning the antisubrogation rule precluding an insured from seeking contribution or indemnification from another insured (see North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281, 294-296 [1993]). Zurich’s reliance on City of Niagara Falls v Merchants Ins. Group (34 AD3d 1263 [2006]) is misplaced. In that case, it appears that the order in the underlying action granting summary judgment to the named insured dismissed not only the complaint but also the cross claims asserted by the City, the party contending in the coverage action that it was an additional insured. Accordingly, that order was fatal to the City’s position in the coverage action that it was an additional insured (see Harriman Estates Dev. Corp. v General Acc. Ins. Co., 309 AD2d 575 [2003]).

*241Order, Supreme Court, New York County (Charles Edward Ramos, J.), entered March 17, 2005, which, inter alia, granted the motion by defendant Jindo America, Inc. for summary judgment dismissing the complaint unless plaintiff joins certain parties as defendants in this matter and denied plaintiff’s cross motion for summary judgment, unanimously modified, on the law and the facts, to the extent of denying the motion of defendant Jindo America, Inc. for summary judgment and vacating the directive for mandatory joinder, and otherwise affirmed, without costs. This action was instituted by Daewoo International (America) Corp. (Daewoo America), a New York corporation, in December of 1999 to recover payments in the total amount of more than $46 million allegedly owed to it on 22 outstanding invoices for shipping containers that it had sold to defendant Jindo America, Inc., another New York corporation. However, Daewoo America subsequently filed for bankruptcy and the matter was stayed until October of 2001, by which point Cove Capital had been designated the substitute plaintiff, as trustee for Daewoo America, and in July of 2004, Eclair Advisor Ltd. became the substituted plaintiff.1 Specifically, Daewoo America was a subsidiary of Daewoo Corporation (Daewoo Korea), an entity based in Seoul, Korea, which was a large exporter of both general and consumer goods, whereas Jindo Corporation (Jindo Korea), a leading manufacturer of seagoing containers also based in Seoul, Korea, utilized the export-import credit facilities of Daewoo Korea in connection with the sale and distribution of its containers to third parties. In any event, between early 1996 and mid-1999, Daewoo America agreed to deliver and sell shipping containers to Jindo America. This arrangement was effected under two-party agreements between themselves and, beginning in 1996, pursuant to so-called Four-Party Agreements between Daewoo Korea, Daewoo America, Jindo Korea and Jindo America. Under these agreements, Jindo Korea exported its shipping containers, through Daewoo Korea to Daewoo America and ultimately to *242Jindo America. The rationale for these agreements was apparently to provide Jindo Korea with improved export financing from Daewoo Korea and Daewoo America, while, at the same time, enhancing Daewoo Korea’s export revenue and sales profits. Nonetheless, in May of 2001, Jindo Korea entered into bankruptcy reorganization proceedings in the District Court of Seoul, Korea, and Daewoo Korea thereupon filed a claim in that proceeding for more than $36 million, the amount due under the Four-Party Agreements. A reorganization plan was ultimately approved, and some payment was made to Jindo Korea’s creditors. Jindo America then moved to dismiss the New York action, arguing, in part, that Jindo Korea and Daewoo Korea, the corporate parents of the litigants herein, were integral parties to this lawsuit. Furthermore, the bankruptcy reorganization proceedings in the Seoul District Court had a binding preclusive effect upon Daewoo America’s, claims in this matter. Jindo America also moved to dismiss on the ground of the forum selection clause in the Four-Party Agreement(s), as well as forum non conveniens. By order dated September 26, 2002, the motion court denied dismissal, explaining that “the outcome of this motion is entirely dependent upon whether or not the Four-Party Agreement itself is controlling in this matter. Jindo America has failed to definitively demonstrate either that the current suit is governed by the Four-Party Agreement, or, if it is, that the forum selection clause contained therein is exclusive or mandatory.” Although the court acknowledged that “the documentary evidence submitted by Jindo America does offer an alternative perspective to the underlying issues in this case, it does not flatly contradict Daewoo America’s factual claims,” and, therefore, Jindo America has failed to resolve all factual issues as a matter of law and conclusively dispose of Daewoo America’s claim. Thereafter, discovery took place, and in April of 2004, Jindo America moved for summary judgment dismissal of the complaint, asserting, inter alia, payment, release, res judicata, collateral estoppel and forum non conveniens. Plaintiff then cross-moved for summary judgment in its favor on its claims for goods sold and delivered, account stated, unjust enrichment and partial payment. In the order being appealed herein, the court below denied Daewoo America’s cross motion, dismissed its third and fourth causes of action for, respectively, unjust enrichment and quantum meruit and granted Jindo America’s motion to the extent of affording it dismissal unless plaintiff timely joins Jindo Korea and Daewoo Korea as defendants herein. In *243that regard, the court pointed out that while “[p]laintiff describes the purchase of shipping containers by Jindo America from Daewoo America in 1996-1999 as a transaction between the two companies,” whereby after “each shipment of goods, Daewoo America invoiced Jindo America for payment,” and “Jindo America paid Daewoo America,” defendant “views the same transactions as an implementation of [the] 1996, 1997 and subsequent Four-Party Agreements.” The court further observed that if Jindo America “is correct, and the Four-Party Agreements apply to this action, then the Korean parents are indispensable parties, and all other issues are contingent on these agreements as well,”2 and Jindo America had clearly “been prejudiced by the absence of Daewoo Korea as a party in the course of discovery, when plaintiff refused to produce officers of Daewoo Korea for depositions or to produce its Korean documents. The absence of Daewoo Korea in particular has robbed defendant of the necessary discovery to support its defense that the debt was paid in full pursuant to the Jindo Korea bankruptcy workout plan.” Dismissal was, thus, “conditionally granted without prejudice, allowing time for Daewoo Korea and Jindo Korea to be brought in.” Nonetheless, the court declined to dismiss this matter for reason of forum non conveniens inasmuch as “two of the four parties are New York corporations,” and “not all of the other contacts are in Korea.” The court below also refused to dismiss the complaint because of the forum selection clause contained in the Four-Party Agreement(s), explaining that not only do the parties disagree as to whether such clause is permissive or mandatory but as recognized by “defendant’s own expert, Won Hyun Choi, the clause does not contain the traditional Korean words that would unambiguously establish that Seoul District Court was meant to have exclusive jurisdiction over all disputes arising out of the Four-Party Agreement.” The court stated, “the dispositive issue is whether Jindo Korea compensated Daewoo for Jindo America’s debt in full,” and under the bankruptcy reorganization plan, “Daewoo Korea was to receive 10% of Jindo America’s alleged debt in cash and 90% in equity swap. Both plaintiff and defendant admit that Daewoo *244Korea is entitled to Jindo Korea’s shares. However, defendant asserts that these shares cover the remaining 90% of the debt while plaintiff claims that, together with cash, they represent only a small part of what is due to Daewoo America.” The court found that inasmuch as it was “unable to determine whether the Korean bankruptcy judgment precludes this action or whether Daewoo America is collaterally estopped by the Korean bankruptcy action from relitigating whether Jindo America is indebted to Daewoo America,” the “consequences for the parties of the order of the Seoul District Court should be established at trial.” Plaintiff challenges the motion court’s conclusion that Daewoo Korea and Jindo Korea are necessary parties to this action, contending that complete relief can be afforded against one co-obligor without having other co-obligors join in the litigation but that, at any rate, if defendant is convinced that Daewoo Korea and Jindo Korea are indispensable to this matter, the court should have required Jindo America to implead the Korean entities. We agree, and for the reasons that follow we modify the order by striking that portion requiring Daewoo America to join Daewoo Korea and Jindo Korea as necessary parties. Pursuant to CPLR 1001 (a) “[pjersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants,” but, as provided under subdivision (b) thereof, when a necessary party “has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned. If jurisdiction over him can be obtained only by his consent or appearance, the court, when justice requires, may allow the action to proceed without his being made a party. In determining whether to allow the action to proceed, the court shall consider: (1) whether the plaintiff has another effective remedy in case the action is dismissed on account of the nonjoinder; (2) the prejudice which may accrue from the nonjoinder to the defendant or to the person not joined; (3) whether and by whom prejudice might have been avoided or may in the future be avoided; (4) the feasibility of a protective provision by order of the court or in the judgment; and (5) whether an effective judgment may be rendered in the absence of the person who is not joined.” The Court of Appeals has made plain that “Qjoinder rules serve an important policy interest in guaranteeing that absent parties at risk of prejudice will not be ‘embarrassed by judg*245ments purporting to bind their rights or interests where they have had no opportunity to be heard,’ ” and they “also protect against multiple lawsuits and inconsistent judgments” (Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. & Appeals, 5 NY3d 452, 458 [2005], quoting First Natl. Bank of Amsterdam v Shuler, 153 NY 163, 170 [1897]; see also Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 820 [2003] [“(t)here are two principal purposes of requiring dismissal owing to the absence of an indispensable party. First, mandatory joinder prevents multiple, inconsistent judgments relating to the same controversy. Second, joinder protects the otherwise absent parties who would be ‘embarrassed by judgments purporting to bind their rights or interests where they have had no opportunity to be heard’ ”] quoting First Natl. Bank of Amsterdam, supra). Yet, notwithstanding that, whenever possible, “the joinder provision is to be employed to avoid dismissal,” and “a court, then, must use every effort to join a necessary party,” there “are situations when such a party may be beyond the reach of the court” (Matter of Red Hook/Gowanus Chamber of Commerce, 5 NY3d at 459). Consequently, “[w]hen a necessary party can be joined only by consent or appearance, a court must engage in the CPLR 1001 (b) analysis to determine whether to allow the case to proceed without that party. Though CPLR 1001 (b) protects the absent party who might be inequitably affected by a judgment in the action, it also treats dismissal for failure to join a necessary party as a last resort,” and “under the statute a court has the discretion to allow a case to continue in the absence of a party, as justice requires,” but “[t]o assist in reaching this decision, the Legislature has set forth five factors a court must consider. Of those five factors, no single one is determinative; and while the court need not separately set forth its reasoning as to each factor, the statute directs it to consider all five” (id.). Although it would seem that jurisdiction over Daewoo Korea and Jindo Korea can be procured only by their consent or appearance, there is no indication that the motion court actually considered the five factors prescribed in CPLR 1001 (b). Indeed, the court failed to describe how Jindo America is prejudiced by the absence of its parent company, Jindo Korea. Jindo America produced both documents and affidavits from Jindo Korea in the course of discovery and motion practice. Moreover, Jindo Korea witnesses were the basis for the vast majority of Jindo America’s submissions. Furthermore, the record discloses, and the court recognized, that Daewoo America fully complied with all of Jindo America’s discovery demands for documents from *246Daewoo Korea and agreed to produce witnesses from Daewoo Korea for examinations before trial. Should Jindo America believe that the Korean companies are indispensable to protect its own interests, Jindo America has the option of seeking to implead them. The denial of summary judgment to plaintiff should be affirmed because there are questions of fact concerning whether or not Jindo Korea was merely a guarantor under the Four-Party Agreement or rather a co-obligor of Jindo America’s debts to Daewoo America. Concur—Marlow, J.P, Nardelli, Catterson and McGuire, JJ. . Nevertheless, all references herein to plaintiff will mean Daewoo America, the entity which commenced the present litigation. . Indeed, the court found that the subject agreements were applicable herein since they had been executed by all four parties, thus precluding “recovery under a quasi-contract theory for events arising out of the same subject matter” and requiring dismissal of plaintiffs third and fourth claims for unjust enrichment and quantum meruit. Plaintiff does not now challenge the dismissal of its third and fourth causes of action.

In a negligence action, the defendants appeal from an order of the Supreme Court, Queens County, dated May 4, 1960 (and entered June 3, 1960), which: (a) granted reargument of plaintiffs’ motion to vacate defendants’ notice of examination before trial; and (b) upon reargument, adhered to the original decision and granted plaintiffs’ said motion. The notice of examination before trial was served by defendants after plaintiffs had placed the action on the calendar and filed the statement of readiness. The notice designated Kings County as the place of examination. Plaintiffs, however, reside in Queens County, and the action is pending in Queens County. Plaintiffs’ bill of particulars was served less than a month prior to defendants’ service of their notice of examination. A motion by defendants to strike the action from the calendar was denied. Order appealed from modified to the extent that plaintiffs’ motion to vacate the defendants’ notice of examination before trial is granted without prejudice to an application by defendants to examine plaintiffs before trial pursuant to paragraph (c) of subdivision (9) of the Statement of Readiness Rule. As so modified, order affirmed, without costs. After an action has been placed on the calendar in accordance with the Statement of Readiness Rule, an examination before trial may be had only by order of the court as provided in paragraph (c) of subdivision (9) of the rule. In any event, the notice of examination before trial which has been vacated, was defective because, in an action pending in a county within the City of New York, it required the appearance of a party in a county other than the county of his residence or the county where the action is pending (Civ. Prac. Act, § 300). Nolan, P. J., Beldock, Kleinfeld, Pette and Brennan, JJ., concur.

In an action by a purchaser of real property to recover moneys paid on account of the purchase price and title-search expenses, on the ground that the seller is unable to deliver title approved and insured by a named title insurance company, as provided in the contract, the defendant appeals from *793a judgment of the Supreme Court, Westchester County, entered January 25, 1960, in favor of plaintiff, upon an assessment of the damages after a nonjury trial, pursuant to an order granting summary judgment to plaintiff. Defendant also brings up for review (1) the order of said court, dated December 14, 1959, granting plaintiff’s motion for summary judgment and directing the said assessment of damages; and (2) an order of said court, dated the same day, denying defendant’s cross motion for leave to serve an amended answer. Plaintiff renews its motion, made pursuant to section 557 of the Civil Practice Act, to dismiss the appeal on the ground that defendant is in default for not having appeared at the trial for the assessment of damages. Judgment and orders affirmed, with one bill of costs. Motion to dismiss appeal denied. No opinion. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

Order and judgment (one paper), Supreme Court, New York County (Nicholas Figueroa, J.), entered June 29, 2005, granting the petition to the extent of annulling respondent agency’s determination that petitioner is not entitled to succeed to the cooperative apartment in question, and remanding the matter to respondent to consider whether petitioner had filed the relevant tax returns as proof of his primary residence, unanimously reversed, on the law, without costs, the petition denied and the proceeding dismissed. In the context of a CPLR article 78 proceeding, it is established that judicial review is limited to a determination of whether the administrative decision is arbitrary and capricious, or lacks a rational basis (see Matter of Tockwotten Assoc. v New York State Div. of Hous. & Community Renewal, 7 AD3d 453, 454 [2004]; Red Apple Child Dev. Ctr. v Chancellor’s Bd. of Review, 307 AD2d 815 [2003]), and where such rational basis exists, an administrative agency’s construction and interpretation of its own regulations are entitled to great deference (see Matter of Salvati v Eimicke, 72 NY2d 784, 791 [1988]; Matter of Arif v New York City Taxi & Limousine Commn., 3 AD3d 345, 346 [2004]). Moreover, “[¡Judicial review of administrative determinations is confined to the facts and record adduced before the agency” (Matter ofYarbough v Franco, 95 NY2d 342, 347 [2000] [internal quotation marks and citation omitted]; see also Matter of Picon v Johnson, 30 AD3d 301, 302 [2006]). In this matter, it is clear from a review of the administrative *247record that respondent’s determination that petitioner was not entitled to succession rights was neither arbitrary or capricious, nor did it lack a rational basis. Petitioner failed to submit adequate documentation to establish that he resided in the subject premises for the requisite time period, in that, inter aha: he neglected to submit an income affidavit for the year 1998; his New York State income tax returns did not show proof of filing; his voter registration and jury service notice only indicated that he had ties to New York, but did not demonstrate his primary residence was here; an affidavit from a neighbor which, while attesting to petitioner’s close relationship with the prior resident, failed to state that petitioner actually resided in the apartment during the critical period; and he failed to submit financial or employment documents confirming his purported address. Further, the hearing court improperly remanded the matter to respondent to consider additional evidence, this being especially so since petitioner had ample opportunity to compile the relevant documentation. Concur—Andrias, J.P, Friedman, Sullivan, Nardelli and Malone, JJ.

Order and judgment (one paper), Supreme Court, New York County (Doris Ling-Cohan, J.), entered January 25, 2006, which granted the CPLR article 78 petition to the extent of annulling the determinations of respondent Superintendent of the Insurance Department, dated August 9 and October 18, 2004, denying petitioner’s appeals of the denial of his Freedom of Information Law (FOIL) requests, and directing respondent to comply with such requests, unanimously reversed, on the law, without costs, respondent’s determinations reinstated and confirmed, the petition denied and the proceeding dismissed. Petitioner, the President of the Borough of Brooklyn, concerned about “redlining” in the insurance industry, commenced this article 78 proceeding in response to the New York State Insurance Department’s denial of his FOIL requests for the disclosure of annual reports insurers are required to file *248with the Department pursuant to 11 NYCRR 218.7. These annual reports, which facilitate the Department’s enforcement of the statutory prohibition of redlining (see Insurance Law § 3429), list insurance policies that were issued, renewed, not renewed, or cancelled (except for nonpayment of premium) within each ZIP code, as well as any applications for which the company refused to issue a policy (see 11 NYCRR 218.7 [b], [d]). Supreme Court granted the petition based on its view that the information in these reports (the ZIP code reports) was already publicly available and that its disclosure would not cause substantial competitive harm. For the reasons discussed below, we now reverse and reinstate the Department’s determinations, which properly exercised the Department’s power under FOIL to deny access to records that “are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise” (Public Officers Law § 87 [2] [d]). We first note that the Department’s regulation providing that the ZIP code reports are “public record[s]” (11 NYCRR 218.7 [d]) does not prevent the Department from denying access to such material pursuant to an applicable FOIL exemption (see Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 132 [1985]; Matter of New York Tel. Co. v Public Serv. Commn., 56 NY2d 213, 219-220 [1982]; Matter of Turner v Department of Fin. of City of N.Y., 242 AD2d 146, 149-150 [1998]). Although the Department opined in 1994 that the ZIP code reports would be subject to FOIL disclosure, the Department reversed this position in 2000. Since the Department fully acknowledged its change of position and explained the reason for it—namely, the Department’s receipt of additional information detailing the competitive harm insurers would face if the reports were disclosed—it cannot be said that the change of position was arbitrary or capricious (see Matter of Lantry v State of New York, 6 NY3d 49, 58-59 [2005]). The Department’s determination that the ZIP code reports are exempt from disclosure under the above-quoted portion of Public Officers Law § 87 (2) (d) is reasonably supported by the record and, therefore, should have been sustained. An insurer’s market share and growth trend in each ZIP code can be determined from the information in the reports. Thus, another company could use the reports to target its competitive efforts in areas where the reporting insurer is most vulnerable while avoiding areas where that insurer is strongest. The Department’s insurance experts reasonably concluded that these cir*249cumstances established a sufficient likelihood of substantial competitive injury to justify application of the exemption (see Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 NY2d 410, 421 [1995]). Supreme Court’s suggestion that the competitive injury to an insurer from the disclosure of its ZIP code report will be cancelled out by the benefit it may enjoy from the disclosure of its competitors’ reports must be rejected, as the record affords no basis for concluding that each insurer would face the same degree of harm. While application of the exemption also requires that the information not be readily available from alternative sources (id. at 420), petitioner concedes that he has no way to obtain the information in the ZIP code reports except by requesting it from the Department.* Even if it might be possible in theory for a competitor to reconstruct the market share and growth data in the reports by conducting a survey of the hundreds of thousands of households in Brooklyn, the expense of such a survey renders it impractical, and the resulting data still would not be as complete or accurate as that in the reports. Providing such valuable information for the nominal price of the fee payable for responding to a FOIL request would be a “windfall” to competitors of a reporting insurer, and the Department properly acted to avoid this result (id. at 421). Concur— Tom, J.E, Friedman, Sullivan, Nardelli and Catterson, JJ. To the extent Supreme Court granted the petition based on the view that the information the reports provide about market share and growth trend in each ZIP code can be gleaned from the yellow pages or the Internet, that view has no support in the record. We note, however, that the intervening insurance companies have indicated that they have no objection to releasing the portion of the reports showing the number of agents in a particular ZIP code.